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Picozzi v. State

Supreme Court of Wyoming

July 16, 2013

NICHOLAS A. PICOZZI, Appellant (Respondent),
v.
STATE OF WYOMING, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Petitioner).

Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge

Representing Appellant: James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming.

Representing Appellee: 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, BURKE, and DAVIS, JJ.

VOIGT, Justice.

[¶1] Nicholas Picozzi, the appellant, injured his neck in a compensable work-related accident. After receiving temporary total disability benefits for thirty-six months, the appellant underwent shoulder surgery. The appellant applied to the Wyoming Workers' Safety and Compensation Division (Division) for additional benefits, arguing that the shoulder injury was a second compensable injury and he, therefore, was entitled to a separate period of benefits. Although the Office of Administrative Hearings (OAH) agreed, the district court rejected that argument. The appellant now appeals that decision and also argues in the alternative that equitable estoppel prohibits enforcement of the thirty-six month limitation. We affirm the district court.

ISSUES

[¶2] 1. Did the OAH hearing examiner err as a matter of law by granting the appellant's application for temporary total disability benefits?

2. Is the Division equitably estopped from enforcing the thirty-six month limitation on receipt of temporary total disability benefits?

FACTS

[¶3] The appellant was employed as an iron worker when, on October 30, 2007, a ten-pound shackle fell thirty feet and landed on his head, neck, and back. The next day, he went to the Wyoming Medical Center in Casper for treatment where he was diagnosed with a stable cervical fracture and was advised to see an orthopedic shoulder specialist for treatment of his rotator cuff injury. The appellant applied for and received temporary total disability benefits for injuries to his "left neck (cervical)" and his "right neck (cervical)."

[¶4] To determine if he was eligible for a permanent disability award, the Division ordered the appellant to undergo independent medical examinations on December 18, 2009, and May 21, 2010. The general conclusion was that the appellant's injuries had not yet reached maximum medical improvement and, therefore, it would be impossible to assign him an impairment rating. Additionally, the doctors expressed concern that the appellant had not yet received treatment regarding his shoulder pain.

[¶5] The appellant received no medical treatment from August 2009 through July 2010. During that time, he requested from the Division a list of doctors who could treat him because he was under the impression that he could only seek treatment from a doctor with a referral from the Division. Based upon the list of physicians provided by the Division, the appellant sought the services of Dr. Christensen, who diagnosed the appellant with shoulder impingement syndrome. On November 18, 2010, the appellant sought, and later received, preapproval from the Division for arthroscopic shoulder decompression surgery. On November 30, 2010, Dr. Christensen performed that surgery on the appellant's shoulder.

[ΒΆ6] Meanwhile, a claims analyst with the Division informed the appellant that his temporary total disability benefits would soon expire. He later received a Final Determination Regarding Temporary Total Disability Benefits providing notification that his benefits would terminate as of November 18, 2010. The appellant objected and the matter was referred to the OAH. The hearing examiner found that the shoulder surgery was a second compensable injury as it "was clearly related to the original injury of October 30, 2007." The time limitation on the appellant's temporary total ...


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