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In the Matter of the Worker's Compensation Claim of: Dawn M. Schossow v. State of Wyoming

July 15, 2011

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: DAWN M. SCHOSSOW, 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 W. Thomas Sullins, Judge

The opinion of the court was delivered by: Voigt, 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] Dawn M. Schossow (the appellant) injured her back while working as a nurse. Upon returning to work, the appellant requested Permanent Partial Disability (PPD) benefits, pursuant to Wyo. Stat. Ann. § 27-14-405(h) (LexisNexis 2011), which request was denied. The Office of Administrative Hearings (OAH) upheld the denial of benefits and the district court affirmed the OAH's decision. In this appeal, the appellant claims that the OAH hearing examiner erred as a matter of law in interpreting Wyo. Stat. Ann. § 27-14-405(h)(i), and that the hearing examiner's decision was not supported by substantial evidence. We will affirm.

ISSUES

[¶2] 1. Was the hearing examiner's interpretation of Wyo. Stat. Ann. § 27-14-405(h)(i) contrary to law?

2. Was the hearing examiner's finding that the appellant failed to meet her burden of proving that she had suffered a loss of earning capacity supported by substantial evidence?

FACTS

[¶3] On August 17, 2004, the appellant was lifting a comatose patient when she felt a "pop" in her lower back and her right leg went numb. After initial conservative treatment and a return to work, the appellant stopped working, and on September 27, 2005, she underwent a two-level anterior lumbar fusion at the L4-L5 and L5-S1 levels of the spine. At the time of her injury, the appellant was employed as a nurse, working between 72 and 74 hours every two weeks, and earning $23.34 per hour, or between $3,555.07 and $3,742.18 per month.

[¶4] After her surgery, the appellant was no longer able to work as a nurse due to restrictions imposed by her doctor. The appellant was released to work part-time and began working at another medical facility as a quality assurance coordinator on December 27, 2005. Her starting salary was $21.00 per hour.

[¶5] In March of 2007, the appellant submitted an Application for Permanent Partial Disability Award or Vocational Rehabilitation Benefits. As a result of her application, the appellant was referred for a vocational evaluation. The vocational evaluation report included the finding that there were three jobs available to the appellant with a beginning salary of 95% or higher than her salary at the time of her injury: Nurse Case Manager, $3,893.00 per month; Nurse 4 Nurse Program Specialist, $3,896.00 per month; and Nurse Surveyor, $3,893.00 per month. As a result of these findings, the Division issued a final determination denying the appellant's application for PPD benefits, concluding that she was "not eligible for this benefit as the information indicates that you can return to an occupation at a comparable wage." The appellant objected to the denial of her PPD claim and requested a contested case hearing.

[¶6] The matter was referred to the OAH and a contested case hearing was held on March 3 and 19, 2008. Both parties presented evidence regarding the appellant's wages and employment opportunities following her injury, the details of which evidence will be examined in the discussion section below. On April 16, 2008, the OAH issued its Findings of Fact, Conclusions of Law, and Order, denying the appellant's requested PPD benefits. The OAH concluded that the appellant failed to meet her burden of showing, by a preponderance of the evidence, that she was unable to return to employment at a wage that was at least 95% of her pre-injury monthly gross earnings. The appellant appealed this determination to the district court and on June 23, 2010, the district court affirmed the OAH's decision. The appellant timely appealed the matter to this Court.

STANDARD OF REVIEW

[¶7] When reviewing administrative decisions, Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2011) requires us, among other things, to set aside agency action not in accordance with the law or decisions unsupported by substantial evidence.*fn1 ...


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