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State ex rel Wyoming Workers' Safety and Compensation Division v. Gerrard1/29/2001
e TTD benefits application is not supported by substantial evidence. The record clearly evidences that Ms. Gerrard appealed the compensability of her left shoulder treatments in August of 1998. The Division asserts Ms. Gerrard only listed the TTD benefits in her statement of benefits claimed filed on February 10, 1999. However, the record reveals that she had already raised these issues in her August 19, 1998, statement of benefits claimed which was filed with the OAH and served on the Division. The record also reflects that she made at least two separate requests that the shoulder issue be addressed at the scheduled carpal tunnel syndrome hearing. The OAH decision regarding the carpal tunnel syndrome claims failed to adjudicate the left shoulder claims. The record contains a minimum of nine separate medical bills which were denied coverage and remained unresolved at the time the parties stipulated to terminate the contested case proceeding. Conspicuously absent from the record is any OAH decision resolving the outstanding left shoulder claims. On the basis of this overwhelming evidence, we conclude that the contested case issues remaining for consideration at the time the parties stipulated to terminate the contested case proceeding included the TTD benefits denial and all the outstanding shoulder claims. A hearing examiner's decision as to the facts will be overturned if it is clearly contrary to the overwhelming weight of the evidence. Shryack v. Carr Construction Company, Inc., 3 P.3d 850, 854 (Wyo. 2000).
[ ] We now consider whether the finding that the Division raised the issue of causation has any relevance to the application of § 27-14-602(d) or the award of attorney's fees in this matter. The Division did assert in its disclosure statement that Ms. Gerrard would have to establish causation as an element of proving her entitlement to TTD benefits. It is logical that, had the TTD benefits proceeded to hearing, the causation nexus between Ms. Gerrard's original head/neck injury and her later claim for TTD benefits would be a required element of her proof. State ex rel. Wyoming Workers' Safety and Compensation Division v. Wright, 983 P.2d 1227, 1233 (Wyo. 1999). It is nonetheless irrelevant to the applicability of § 27-14- 602(d) or the award of attorney's fees. The OAH seems to treat the mention of causation as a means to except the attorney's fees award from the statute. We find no authority in the case law or statutes for this legal conclusion. Section 27-14-602(d) nowhere mentions the word "causation" nor does it provide for such an exception. This being the case, we must conclude the causation finding was irrelevant to the determination of the applicability of § 27-14-602(d) and the OAH's legal conclusion that the statute did not apply was in error.
[ ] It being concluded § 27-14-602(d) applies, we now address the pivotal issue of whether, as the Division contends, the statutory language precludes the employee's attorney from being awarded attorney's fees in excess of the sums at issue in the contested case proceeding. In order to ascertain this issue, we must examine and interpret the language of the statute.
[ ] In 1995, § 27-14-602(d) was amended by the legislature to add the language denoted by bold italics, as follows:
(d) Upon request, the hearing examiner may appoint an attorney to represent the employee or claimants and may allow the appointed attorney a reasonable fee for his services at the conclusion of the proceeding. An appointed attorney shall be paid according to the order of the hearing examiner either from the worker's compensation account, from amounts awarded to the employee or claimants or from the employer. In any contested case where the
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