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State of Wyoming Ex Rel. Wyoming Workers' Safety and Compensation v. Shannon Cave

September 20, 2011

STATE OF WYOMING EX REL. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLANT (RESPONDENT/OBJECTOR),
v.
SHANNON CAVE, APPELLEE (PETITIONER/EMPLOYEE).



Appeal from the District Court of Sublette County The Honorable Marvin L. Tyler, Judge

The opinion of the court was delivered by: Golden, 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] Appellee Shannon Cave suffered a work-related injury in November 2007 and was awarded temporary total disability (TTD) benefits during her recovery. In September 2008, Cave received an offer of temporary light duty work from her employer, which she rejected. As a result of her refusal to accept what the Wyoming Workers' Safety and Compensation Division (Division) deemed a bona fide offer of light duty work, the Division reduced Cave's TTD benefits in accordance with Wyo. Stat. Ann. § 27-14-404(j) (LexisNexis 2011) to one-third of the previously authorized amount. The Office of Administrative Hearings (OAH) upheld the reduction of TTD benefits. On review, the district court reversed the OAH decision, and the Division appealed to this Court. Finding that the OAH decision is supported by substantial evidence and not contrary to law, we reverse the district court's order.

ISSUES

[¶2] The Division presents the following issue for our review:

Was the Hearing Examiner's determination that [Cave] had rejected a bona fide light duty offer and, therefore, had to receive a reduction in her temporary total disability benefits supported by substantial evidence?

Cave responds with essentially the same issue and raises this additional issue:

Whether the Office of Administrative Hearings' decision is arbitrary, capricious or otherwise not in accordance with the law.

FACTS

[¶3] In November 2007, Cave was employed as an assistant manager at the Loaf 'N Jug convenience store in Marbleton, Wyoming. While stocking and arranging soda in the store, Cave fell from a ladder and injured her low back. The Division found Cave's injury to be compensable and awarded TTD benefits.

[¶4] From November 14, 2007, through October 9, 2008, Cave received full TTD benefits. During this time, several things occurred that ultimately affected Cave's continued receipt of full benefits. In July 2008, an apparent dispute arose between Cave and the store manager, Larry Ridley, relating to Cave's return to work. On July 7, 2008, Cave's treating physician, Dr. Geoffrey Skene, released her to return to light duty work, with restrictions of no bending and lifting more than twenty pounds. After being informed of the release, Ridley placed Cave on the work schedule and assigned her stocking duties which Cave believed was beyond her physical capabilities and contrary to Dr. Skene's release. Cave reported to Dr. Skene that her employer was not honoring her light duty restrictions. At Cave's request, Dr. Skene issued a new, more detailed release that permitted Cave to return to her prior managerial job duties, but did not clear her to perform floor duties involving stocking, bending, or lifting more than twenty pounds.

[¶5] In addition to contacting Dr. Skene, Cave wrote a letter to her claims analyst at the Division. Among other things, Cave complained that Ridley had assigned her job duties which exceeded her physical limitations, and that he was unfairly refusing to reinstate her to the position of assistant manager, with the duties attendant to that position. Cave also reported that she had been informed by fellow employees and customers of Loaf 'N Jug that Ridley had threatened to do anything he could to get her to quit when she returned to work. Cave did not go back to work in July and continued to receive full disability benefits.

[¶6] The Division subsequently notified Cave's corporate employer, Mini Mart, Inc., of the provisions of temporary light duty employment and the requirements of Wyo. Stat. Ann. § 27-4-404(j) in a letter addressed to its risk manager, Harry Hollifield. After receiving the letter, Hollifield began working with Ridley to develop a plan to bring Cave back to work. On August 22, 2008, Hollifield sent a letter to Dr. Skene regarding Cave's potential return to light duty employment. Along with the letter, Hollifield sent an Agreement for Temporary Light Duty/Restricted Work and asked the doctor to review the job offer and approve it concerning the scope of the duties requested and Cave's physical limitations.*fn1 The Agreement was on a form provided by the Division and contained the following specifics: 1) Cave would work 2-5 days per week; 2) Cave would work 8 hours per day; 3) Cave would be paid $13.00 per hour;*fn2 4) the position would begin on September 16, 2008, and continue until Cave's light duty restrictions were lifted; 5) the duties of the position would be to assist with cashier duties, scan vendors, scan off bad merchandise, work back stock within restrictions, and assist with office duties; 6) Cave would be restricted from performing duties requiring bending, twisting, and lifting anything over twenty pounds. Dr. Skene signed the Agreement on September 5, 2008, authorizing Cave's return to light duty work in accordance with the job duties and restrictions stated therein.

[¶7] Hollifield forwarded the Agreement to Cave on September 11, 2008, with a request that she promptly respond to the job offer. Approximately three weeks later, on October 2, Cave returned the Agreement to Hollifield, stating she was refusing the light duty employment. Cave attached a lengthy statement setting forth her reasons for rejecting the job offer. Primarily, Cave refused the offer because she was fearful of retribution from Ridley if she returned to work under his management. Cave also claimed she was unable to read the middle line of the offer and noted it did not specifically state she would be reinstated to the position of assistant manager or receive a pay increase allegedly promised her upon her return.

[¶8] On October 15, 2008, the Division issued a Final Determination notifying Cave that it was reducing her TTD benefits to one-third of the previously determined rate because of her refusal of the offer of light duty work. Cave objected to the reduction in benefits and requested a hearing, again noting her concern of retribution from Ridley and complaining of discriminatory treatment by Loaf 'N Jug. The Division promptly referred the matter to OAH for a hearing.

[¶9] During a contested case hearing held in April 2009, Cave presented evidence focusing extensively on Ridley, his supervisory shortcomings and misdeeds at the store,*fn3 and his alleged threat toward her in an effort to prove that any offer of light duty work under Ridley's supervision, including the instant offer, was illusory and not bona fide. Cave acknowledged at the hearing that she could have, and would have, performed the duties set forth in the Agreement for temporary light duty work but for Ridley's managerial oversight at the store. She also acknowledged that she never further pursued light duty employment with Loaf 'N Jug despite Ridley's termination as manager in November 2008.

[ΒΆ10] The OAH ultimately concluded that Cave had refused a bona fide offer of light duty employment that met all statutory requirements and was within her physical limitations as set forth by her treating physician. Accordingly, the OAH upheld the Division's reduction in Cave's TTD benefits. Cave appealed this determination to the district court and, on April 13, 2010, the ...


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