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Osenbaugh v. State ex rel Wyoming Workers' Safety And Compensation Division8/17/2000
W.R.A.P. 12.09(b) Certification from the District Court of Laramie County
The Honorable Nicholas G. Kalokathis, Judge
Kendall L. Osenbaugh applied for modification of his award of temporary total disability (TTD) benefits on the grounds of increased incapacity. After a contested case proceeding, the Office of Administrative Hearings denied the application because Osenbaugh did not have additional surgery. We conclude the Office of Administrative Hearings incorrectly ruled that Osenbaugh's request was governed by Wyo. Stat. Ann. § 27-14-404 (Michie 1991) (amended 1993, 1994, 1995, 1996 & 2000) and not Wyo. Stat. Ann. § 27-14-605(a) (Michie 1991) (amended 1994) and, consequently, incorrectly required proof of additional surgery not reasonably contemplated before an award of permanent partial disability benefits. For this reason, we reverse and remand for findings of fact to establish whether Osenbaugh experienced an increase in incapacity of such a nature as to warrant modification of his TTD award consistent with § 27-14-605(a).
ISSUES
Osenbaugh sets forth the issue as follows:
1. Can a worker['s] compensation claimant be awarded temporary total disability benefits pursuant to § 27-14-605, W.S. 1977 (1991 Repl.) without undergoing additional surgery following an award of permanent partial disability benefits as required by § 27-14-404(b), W.S. 1977 (1991 Repl.)?
A. Did the hearing officer err as a matter of law by misapplying the provisions of § 27-14-404(b) and 605, W.S. 1977 (1991 Repl.)?
B. Did the hearing officer misapply this Court's holding in Casper Oil Company v. Evenson, 888 P.2d 221 (Wyo. 1995)?
The Wyoming Workers' Safety and Compensation Division (the division) states the issues in the following form:
I. The Employee failed to object to the denial of his temporary total disability claim. Was his petition to modify barred by the Act?
II. The Employee sought additional temporary total disability benefits without having undergone additional surgery. Was the denial of additional benefits in accordance with law?
III. If the Hearing Examiner's decision was contrary to law, should the Court remand for findings of fact?
Osenbaugh presents these additional issues in his reply brief:
Osenbaugh believes that the following additional issues have been raised as a result of the arguments made by the Wyoming Workers' Safety and Compensation Division in brief:
1. Was the issue of reopening and modification of Osenbaugh's worker['s] compensation case to obtain additional temporary total disability benefits from the date of his pro se petition to reopen before the Office of Administrative Hearings for contested case determination?
2. Did Osenbaugh, by failing to file a timely objection to the denial of his claim for temporary total disability benefits for the months of March and April of 1999, waive his right to file future claims for temporary total disability pursuant to §27-14-605 W.S. 1977 (1998 Repl.)?
FACTS
On November 11, 1991, Osenbaugh was injured at work as a tire changer and apprentice mechanic for Big O Tire Stores and, as a result, underwent spinal fusion surgery. He received worker's compensation benefits including TTD benefits and a thirteen percent physical impairment award. Thereafter, Osenbaugh received an additional thirty-seven percent permanent partial disability award for a total permanent partial disability award of fifty percent. In 1997, with assistance from the Division of Vocational Rehabilitation, he commenced work as a management trainee for Nurse C
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