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In re Worker's Compensation Claim of Decker

Supreme Court of Wyoming

June 18, 2013


Appeal from the District Court of Campbell County The Honorable Dan R. Price II, Judge

William G. Hibbler of Bill G. Hibbler P.C., Cheyenne, Wyoming.

Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, DAVIS, JJ, and GOLDEN, J., Retired.

VOIGT, Justice.

[¶1] Daniel L. Decker, the appellant, applied for a permanent partial disability award. The Wyoming Worker's Safety and Compensation Division's (Division) denial of that application was upheld by the Office of Administrative Hearings (OAH) on the basis that the appellant failed to show that he was unable to return to work at a wage at least 95% of his earnings at the time of his injury. The district court affirmed the OAH's decision, albeit based on a different assessment of the appellant's ability to earn a living in the aftermath of his injury. We affirm.


[¶2] Was the OAH's decision supported by substantial evidence and was the decision properly supported by the law?


[¶3] The appellant was diagnosed with wrist tendonitis as a result of a work-related injury and on September 10, 2001, received a Temporary Total Disability award, calculated based on monthly earnings of $4, 290.00. The appellant's symptoms, however, progressed and he was re-diagnosed with thoracic outlet syndrome. Although the Office of the Medical Commission disagreed with this diagnosis, the appellant was eventually awarded benefits after two reversals by this Court. See Decker v. State ex rel. Wyo. Med. Comm'n, 2005 WY 160, 124 P.3d 686 (Wyo. 2005); Decker v. State ex rel. Wyo. Med. Comm'n, 2008 WY 100, 191 P.3d 105 (Wyo. 2008).

[¶4] The current issue originated with the appellant's application for permanent disability benefits. On November 18, 2010, the Division issued a Final Determination of Permanent Partial Impairment Benefit, indicating that the appellant's work-related injury had resulted in a 4% whole body permanent partial impairment. On December 1, 2010, the appellant filed an Application for Permanent Disability Award or Vocational Rehabilitation Benefits. The Division denied that application after determining that the appellant had returned to work at a "comparable wage" and failed to comply with Wyo. Stat. Ann. § 27-14-405(h)(i) (LexisNexis 2011). The Division concluded, "[y]ou were earning $4, 290.00 a month as a sheet metal worker at the time of injury, and you are now earning an average of $4, 355.34 a month at Powder River Heating and Air Conditioning." The appellant appealed that determination to the OAH.

[¶5] The OAH rejected the appellant's argument that it was bound by the monthly wage at the time of the injury of $4, 290.00, as determined by the September 10, 2001, final determination issued by the Division. The hearing officer determined that the evidence contradicted this figure. Instead, the OAH relied upon the appellant's pay receipts from the third quarter of 2001 for an average monthly wage of $3, 496.65. To determine the appellant's wage at the time he filed for permanent partial disability benefits, the OAH looked at the appellant's earnings in the fourth quarter of 2010, for an average of $4, 355.34 per month. According to these findings, the OAH determined that the appellant was earning more than 95% of the wage earned at the time of the injury and, therefore, denied his appeal.

[ΒΆ6] After another appeal by the appellant, the district court reached the same ultimate conclusion as the OAH, although based on different wages. The district court agreed with the OAH's determination that the appellant earned $3, 496.65 at the time of his injury, but the district court rejected the OAH's reliance upon the appellant's fourth quarter of 2010 earnings to determine his post-injury wage. The district court agreed with the appellant and concluded that it would be more appropriate to take a broader view of the appellant's post-injury wage and relied upon the appellant's wages from the entire seven-year period preceding his application for permanent partial disability benefits. According to the district court, the average monthly wage over the course of this period was $3, 527.00. Based on these revised wages, ...

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