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Shon anderson v. State of Wyoming

December 3, 2010

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



Appeal from the District Court of Sweetwater County The Honorable Nena R. James, Judge

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

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Appellant, Shon Anderson, challenges an order from the Office of Administrative Hearings (OAH) denying his claim for additional Workers' Compensation Permanent Partial Impairment (PPI) benefits. The OAH rated his PPI using the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, which was the most recent edition available in 2008 when Mr. Anderson reached maximum medical improvement. Mr. Anderson contends that his PPI should have been rated using the 5th edition of the AMA Guides, which was the most recent edition available in 2003 when he incurred his original injury. We affirm.

ISSUES

[¶2] Mr. Anderson presents two issues:

1. Was the Office of Administrative Hearings' decision holding that Mr. Anderson's impairment should be calculated according to the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment arbitrary, capricious, or otherwise not in accordance with law?

2. Does the Wyoming Workers' Safety and Compensation Division's interpretation and application of W.S. § 27-14-405(g) result in an unconstitutional delegation of legislative authority that is contrary to Article 10 Section 4 of the Wyoming Constitution?

FACTS

[¶3] Mr. Anderson suffered a compensable lower back injury in 2003. In December 2004, he underwent the first of two surgeries on his lower back. He subsequently reached maximum medical improvement and the Division referred Mr. Anderson to Dr. Michael Kaplan for a PPI rating. Dr. Kaplan concluded that Mr. Anderson had a 10% PPI. He performed his evaluation using the 5th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. The Division subsequently awarded Mr. Anderson PPI benefits based upon Dr. Kaplan's rating.

[¶4] In December 2007, Mr. Anderson underwent a second surgery on his lower back. The surgery was performed by Dr. Brent Clyde. After reaching maximum medical improvement, Mr. Anderson sought additional PPI benefits. He was referred to Dr. Clyde for an evaluation. Using the 6th edition of the American Medical Association Guides, Dr. Clyde calculated Mr. Anderson's PPI at 7%. Mr. Anderson disagreed with this rating and requested a second evaluation. He was referred to his original surgeon, Dr. Kaplan, for another evaluation. Dr. Kaplan also used the 6th edition and assigned a PPI rating to Mr. Anderson of 8%.

[¶5] The Division issued a Final Determination of Permanent Partial Impairment Benefit on October 6, 2008 and denied Mr. Anderson's claim explaining:

The Workers' Safety and Compensation Division has received the second opinion regarding your permanent impairment rating. Dr. Kaplan assigned [an] 8 percent impairment to your body as a whole, related to your 4/6/2003 injury to your lumbar spine. The Division has reviewed this rating along with the original rating of 7 percent performed by Dr. Clyde on June 30, 2008 and has determined that you are entitled to a 0 percent impairment as you received a 10 percent impairment May 1, 2005. You may continue to submit claims related solely to the original injury.

[¶6] Mr. Anderson objected to the determination on the basis that his PPI should have been calculated using the 5th edition of the AMA Guides. The matter was referred to the OAH. Both parties filed motions for summary judgment, agreeing that there were no issues of material fact and the only question was which edition of the AMA Guides should be used to rate Mr. Anderson's PPI. The OAH issued an order in May 2009 concluding that the 6th edition was proper and granting the Division's motion for summary judgment. Mr. Anderson appealed to the district court and the OAH decision was affirmed. Mr. Anderson timely appealed to this Court.

STANDARD OF REVIEW

[¶7] Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) ...


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