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Bailey v. State ex rel Wyoming Workers' Safety and Compensation Division

November 23, 2010

DIANE BAILEY, APPELLANT (PETITIONER),
v.
STATE OF WYOMING, EX REL., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLEE (RESPONDENT).



Appeal from the District Court of Natrona County, The Honorable Scott W. Skavdahl, Judge.

The opinion of the court was delivered by: Kite, Chief Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

[¶1] Diane Bailey appeals from the district court's order affirming the Office of Administrative Hearing's (OAH) denial of her claim for temporary total disability (TTD) benefits. We conclude the OAH correctly determined that Ms. Bailey failed to file a proper health care provider certification when she applied for TTD benefits and, under the relevant statutes and agency rule, she is not entitled to benefits.

[¶2] We affirm.

ISSUES

[¶3] Ms. Bailey presents a single issue on appeal:

Did the Office of Administrative Hearings... act arbitrarily and capriciously, and contrary to law, in denying payment of temporary total disability benefits ("TTD") to Appellant, Diane Bailey ("Bailey"), even though she was "temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which [s]he [was] reasonably suited by experience or training?" Wyo. Stat. §27-14-102(a)(xviii).

State of Wyoming ex rel., Wyoming Workers' Safety and Compensation Division (Division) states two issues on appeal:

I. Is the hearing officer's determination denying Appellant's requested temporary total disability ("TTD") benefits because Appellant failed to properly submit a completed TTD certification form, signed by her physician, arbitrary, capricious, or otherwise not in accordance with Wyoming law?

II. Does substantial evidence support the hearing officer's determination that Appellant failed to follow the procedural requirements for filing a TTD claim and that, therefore, her request for TTD benefits should be denied?

FACTS

[¶4] Ms. Bailey injured her right shoulder in November 2007, while working as a welder's helper for Gregory & Cook Construction, Inc. She was examined by a physician's assistant at Rawlins Urgent Care on December 18, 2007. The physician's assistant restricted her from overhead work and lifting more than 5 pounds. After working for a few more days, she returned home to Michigan. Ms. Bailey was examined by family physician, Dr. D. Dotson, on December 26, 2007. Dr. Dotson filled out a "Return to Work/School Statement" which stated that Ms. Bailey was not to perform any work until she was seen by an orthopedic physician.

[¶5] Ms. Bailey faxed a report of injury and eighteen page letter to the Division on January 2, 2008. She also asserted that she submitted an application for TTD benefits at the same time, although the application in the record was not stamped as "received" by the Division and the Division argued there was no evidence that it received the application. The application was filled out only by Ms. Bailey; her physician did not complete the "Health Care Provider's Certification" part of the document or sign it.

[¶6] Ms. Bailey saw Rhonda Whelan, D.O. on January 24, 2008. Dr. Whelan ordered a right shoulder arthrogram, which was completed on February 21, 2008. The test indicated that Ms. Bailey had a partial rotator cuff tear, labral tear, impingement syndrome and adhesion capsulitis in her right shoulder, and Dr. Whelan determined that surgery was indicated. On February 28, 2008, Dr. Whelan's office completed a "Disability Certificate," indicating that Ms. Bailey "is to be off work as of today (2-28-08) through 3 months after surgery. Pt's surgery date is 4-23-08."

[¶7] Ms. Bailey had surgery on April 23, 2008, and subsequently began physical therapy. Dr. Whelan completed another disability certificate on August 4, 2008, indicating that Ms. Bailey would continue to be off work for another two months. On September 9, 2008, Dr. Whelan filled out a form for Ms. Bailey's private disability insurance, which stated that Ms. Bailey still could not work.

[¶8] The Division initially denied coverage, but later agreed that Ms. Bailey's injury was compensable and paid her medical claims. The Division did not, however, award her TTD benefits, asserting that she had not filed a proper application for benefits. The OAH held a contested case hearing on November 4, 2008. The OAH ruled there was no evidence that Ms. Bailey filed her application for TTD benefits with the Division on January 2, 2008, as she claimed and, in any event, she was not entitled to benefits because her application did not contain a health care provider's certification. Ms. Bailey filed a petition for judicial review with the district court, and that court determined the OAH finding that there was no evidence Ms. Bailey filed her application was not supported by substantial evidence because she testified repeatedly that she faxed it to the Division on January 2, 2008. The district court, nevertheless, upheld the OAH decision denying benefits because her application did not contain a proper certification from her health care provider. Ms. Bailey appealed to this Court.

STANDARD OF REVIEW

[¶9] This case requires interpretation of worker's compensation law, necessitating application of the following standard of review:

The interpretation and correct application of the provisions of the Wyoming Workers' Compensation Act is a question of law over which our review authority is plenary. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. We do not afford any deference to the agency's determination, and ...


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