Appeal from the District Court of Campbell County The Honorable Dan R. Price II, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN*fn1 , HILL, VOIGT, and BURKE, JJ.
KITE, C.J., delivers the opinion of the Court; VOIGT, J., files a specially concurring opinion.
[¶1] Gordon R. Bilyeu was injured in an accident while driving his motorcycle to work. He filed a claim for worker's compensation benefits asserting that his injuries were covered because he sustained them while traveling to work and his employer reimbursed him for travel expenses. The Wyoming Worker's Compensation Division (the Division) denied his claim. After a contested case hearing, the Office of Administrative Hearings (the OAH) also denied his claim. Mr. Bilyeu sought review of the OAH ruling in district court, which affirmed the denial. He now appeals to this court claiming the OAH's decision is contrary to the evidence because it ignored evidence showing that his employer reimbursed him for travel expenses. We affirm.
[¶2] The issue for this Court's determination is whether the OAH's conclusion that Mr. Bilyeu failed to meet his burden of proving he was reimbursed for travel expenses within the meaning of Wyo. Stat. Ann. § 27-14-102(a)(xi)(D) (LexisNexis 2011) was contrary to the overwhelming weight of the evidence.
[¶3] Mr. Bilyeu worked as a boilermaker for Babcock & Wilcox Construction for thirty years. In June of 2010, he was working at Dry Fork Station Power Plant (Dry Fork) near Gillette, Wyoming. His home address was in Texas, but he was living at the time in Gillette in order to work at Dry Fork. He was driving his motorcycle to work from his home in Gillette on June 28, 2010, when he was involved in an accident. He sustained a broken ankle, broken ribs, a broken collar bone, a collapsed lung, and lacerations.
[¶4] Mr. Bilyeu filed a claim for worker's compensation benefits asserting that his injuries were covered because he was "reimbursed for travel expenses" as provided in § 27-14-102(a)(xi)(D). That section states:
§ 27-14-102. Definitions.
(a) As used in this act: . . . .
(xi) "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business. "Injury" does not include:
(D) Any injury sustained during travel to or from employment unless the employee is reimbursed for travel expenses or is transported by a vehicle of the employer;
[¶5] At the contested case hearing, Mr. Bilyeu presented evidence that he received per diem of $60 per day while working on the Dry Fork project. Citing In re Van Matre, 657
P.2d 1226 (Wyo. 1983), the OAH concluded Mr. Bilyeu did not meet his burden of proving that the $60 per diem was intended to reimburse him for his travel expenses. The OAH concluded the evidence showed instead that the per diem was tied to the number of hours Mr. Bilyeu worked, was intended as additional compensation negotiated by Mr. Bilyeu's union and had no relationship to actual travel expenses. On that basis, the OAH ...