W.R.A.P. 12.09(b) Certification from the District Court of Laramie County The Honorable Thomas T.C. Campbell, 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] The appellants, Timothy Araguz and James Elder, were injured in separate incidents while working at the Wal-Mart Distribution Center (Distribution Center). After receiving compensation through the Wal-Mart Plan, Wal-Mart's private workers' compensation fund, the appellants filed for benefits under the Wyoming Worker's Compensation Act (the Act). The Wyoming Workers' Safety and Compensation Division (Division) denied their request and the Office of Administrative Hearings (OAH) confirmed that denial. This Court finds that Wal-Mart was not engaged in extrahazardous employment as defined by the legislature and therefore the appellants were not entitled to workers' compensation benefits. For that reason we will affirm.
[¶2] In granting summary judgment, did the OAH correctly rule that the appellants' claims were not covered by the Wyoming Worker's Compensation Act?
[¶3] In Wyoming, Wal-Mart employs 5,340 workers through the operation of ten Wal-Mart Supercenters, two Sam's Clubs, and one Distribution Center. Six hundred of those employees work at the Distribution Center. Wal-Mart's revenue is generated from retail operations conducted through the Supercenters and Sam's Clubs.
[¶4] The Distribution Center located west of Cheyenne is approximately one million square feet and supplies groceries to North Dakota, South Dakota, Montana, Colorado, and Wyoming. Between 130 and 140 semi-trucks arrive each day with perishable and nonperishable grocery items that will be warehoused at the facility pending delivery to the Wal-Mart Supercenters and Sam's Clubs throughout the five-state area. No goods are sold directly from the Distribution Center. The purpose of the Distribution Center is to serve the needs of the retail stores.
[¶5] The Wyoming Constitution requires that all businesses engaged in "extrahazardous employments" contribute to a state workers' compensation fund administered by the legislature. Wyo. Const. art. 10, § 4(c). For purposes of determining whether a business is required to participate in the workers' compensation fund, the Department of Employment assigns an industry classification code to every Wyoming business based on the employer's primary business and the definitions set out by the North American Industry Classification System (NAICS). The legislature has enumerated certain of these classifications as "extrahazardous employment." Wyo. Stat. Ann. § 27-14-108 (LexisNexis 2011). Wal-Mart had been assigned code 452910, indicating "Warehouse Clubs and Supercenters." Because such classification was not defined by Wyoming statute as "extrahazardous," Wal-Mart was not required to participate in the state fund.
[¶6] Appellant Timothy Araguz was employed as a Reserve Stock Replenishment Driver (RSR Driver) at the Distribution Center. The RSR Driver operates a forklift to move pallets of groceries from the loading dock to tiered storage racks up to 20 feet above ground level. Araguz injured his back and shoulder while throwing pallets in the course of his employment.
[¶7] Appellant James Elder was employed as a Yard Driver at the Distribution Center. The Yard Driver hooks up trailers that have been detached from the semi-trucks to his yard tractor which he then drives to the warehouse dock for unloading. Elder was blown off an icy yard tractor as he was attaching a trailer to the yard tractor. His fall caused injuries to his back, hip, shoulder and ankle.
[¶8] Although Wal-Mart is not required to contribute to the Wyoming workers' compensation fund, Wal-Mart does maintain its own privately funded workers' compensation fund, the Wal-Mart Plan, for the benefit of its employees who are injured on the job. Both claimants reported their injuries to their respective supervisors and submitted injury reports in accordance with the requirements of the Wal-Mart Plan.
[¶9] Despite the fact that the appellants received benefits from Wal-Mart under the Wal-Mart Plan, both later filed a Report of Injury pursuant to the Act. In both cases the Division issued a Final Determination Regarding Compensability denying payment of benefits to the appellants because they were "not employed in an occupation requiring coverage." In response to the denials, ...