Appeal from the District Court of Natrona County The Honorable Catherine E. Wilking, Judge
The opinion of the court was delivered by: Burke, Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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, Wyoming Workers' Safety and Compensation Division, challenges an order from the Office of Administrative Hearings awarding additional temporary total disability (TTD) benefits to Appellee, Timothy Smith. The Division contends the award exceeded the maximum period for which an injured worker may receive temporary total disability benefits. We agree and reverse.
[¶2] The Division presents a single issue:
Smith sustained a compensable neck injury and, despite four separate surgeries to address it, never returned to work. The Division paid Smith Temporary Total Disability benefits for thirty-six months-the maximum period allowed by Wyo. Stat. Ann. § 27-14-404(a) and the Division's Rules. The OAH found that each of Smith's four separate surgeries was a second compensable injury, extending the amount of time the Division could pay TTD benefits. Do Wyo. Stat. Ann. § 27-14-404(a) and the Division's Rules limit TTD benefits to a cumulative maximum of thirty-six months for injuries resulting from any one incident or accident regardless of the second compensable injury rule?
Mr. Smith phrases the issue as follows:
Does a second compensable injury restart the limitation period for paying temporary total disability benefits under W.S. 27-14-404(a)?
[¶3] The facts in this case are not in dispute. Mr. Smith originally injured his neck in 2001. He was diagnosed with a C5-6 disk herniation, underwent fusion surgery, and returned to work after a period of recovery.*fn1 Subsequently, in February, 2006, while working as a mechanic for Wyoming Machinery in Casper, Mr. Smith fell backwards and reinjured his neck. As a result of this incident, Mr. Smith's treating physician, Dr. Clayton Turner, completed a temporary total disability form certifying that Mr. Smith was temporarily disabled from returning to any gainful employment starting on March 30, 2006.
[¶4] Over the next four years, Mr. Smith underwent a series of surgeries on his cervical spine. In May, 2006, Dr. Turner performed an anterior cervical diskectomy and fusion at the C6-7 level and removed a plate from the C5-6 level that had been placed there during the 2001 fusion surgery. In February, 2007, a CT scan of Mr. Smith's neck revealed that the C6-7 fusion had not healed. Consequently, Dr. Turner performed a repeat anterior cervical fusion surgery at the C6-7 level in May, 2007. That surgery also failed to achieve a solid fusion. As a result, Dr. Turner conducted a third surgery in February, 2008, in which he inserted a bone graft at the C6-7 level. Mr. Smith continued to experience neck pain after the third procedure, and Dr. Turner continued to certify that Mr. Smith was temporarily totally disabled. During the period from March, 2006 through March, 2009, Dr. Turner certified Mr. Smith's temporary total disability in twenty-five successive one- and two-month periods. Based on these certifications, the Division paid Mr. Smith TTD benefits continuously for thirty-six months.
[¶5] In the summer of 2009, Mr. Smith began experiencing left shoulder and arm pain in association with his neck pain. In December, he received a nerve root block at the C5 level that temporarily alleviated his shoulder and arm pain. Based on the results of the nerve block, Dr. Turner proposed surgery to alleviate the shoulder and upper arm pain. Dr. Turner performed an anterior diskectomy and fusion at the C4-5 level in February, 2010.
[¶6] Mr. Smith sought additional TTD benefits for the treatment period from March, 2009 to the February, 2010 surgery, and after the February, 2010 surgery. The Division issued a Final Determination denying payment of additional TTD benefits for this period, noting that Wyo. Stat. Ann. § 27-14-404(a) limits the amount of time for which TTD benefits may be received by an injured worker. The Division stated that "we do not approve the payment of temporary total disability benefits after March 30, 2009, as you have received thirty six (36) months of temporary total disability for your cervical spine work injury of February 28, ...