 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
In re Worker's Compensation of Ottema12/4/1998
October Term, A. D. 1998
W. R. A. P. 12.09(b) Certification from the District Court of Sheridan County: The Honorable John C. Brackley, Judge
Appellant Vernon D. Ottema (Ottema) seeks review of the hearing examiner's denial of his 1995 application for extended permanent total disability benefits. Ottema claims the hearing examiner erroneously applied the 1987 provision regarding eligibility rather than the law in effect in 1985, the time of his original injury. Pursuant to our holding in Rodgers v.State, ex rel. Workers' Compensation Div., 939 P. 2d 246, 249 (Wyo. 1997), we affirm the hearing examiner's order denying benefits.
ISSUES
Ottema presents the following issues for our review:
A. Did the OAH and Division err in refusing to apply 1985 law to Mr. Ottema's 1985 injury, and in retroactively applying 1991 law as a basis for the denial of extended permanent total disability benefits?
B. Did the OAH err in allowing the Division to act in excess of its own statutory authority?
C. Do the Principles of Res Judicata and Judicial Estoppel preclude the Division from asserting that 1991 law applies?
D. Do the decisions of the OAH and Division constitute a deprivation of Mr. Ottema's rights to due process and equal protection in contravention of Article 1, Sections 2, 3, and 6 of the Wyoming Constitution, and the 14 Amendment of the Unitedth States Constitution?
Appellee, Worker's Compensation Division (Division), condenses the issues to two:
A. Was the Hearing Examiner's decision to apply Wyo. Stat. ยง 27-14-403(g) (1987), to a claimant who became totally disabled in 1990, in accordance with law?
B. Do prior extended benefit awards, through considerations of res judicata or equal protection, give a claimant a right to continued extended benefit awards?
FACTS
In 1985, Ottema was severely injured in a logging accident, for which he received an 89.68 percent whole body impairment permanent partial disability award. Ottema accepted the payment of this award in a lump sum distribution. In 1991, Ottema submitted an application for permanent total disability benefits. The Division determined Ottema suffered additional partial disability which, combined with the Division's prior determination, amounted to 100 percent total permanent disability. In February 1992, a stipulated order was entered whereby Ottema accepted the additional award and the permanent total disability rating.
In 1992, 1993, and 1994, Ottema applied for and received extended permanent total disability benefits pursuant to W. S. 27-12-405(d) (1977), the statute in effect in 1985. Under that statute, the Division was to consider only the loss of earning power when determining eligibility for additional benefits. When Ottema applied for extended benefits in 1995, however, the Division abandoned its previous analysis and applied W. S. 27-14-403(g), which became effective in 1987. Under this provision, eligibility for extended benefits is determined after consideration of the employee's income from all sources, including "any monthly amount from any other governmental agency." W. S. 27-14-403(g)(i)(C) (1987).
In 1995, Ottema received social security disability benefits totaling $10,885.20. The subsistence level of income, as determined by the United States Bureau of Labor Statistics, for a family of two (Ottema and his wife) was $10,420.00. Because Ottema's social security benefits exceeded the subsistence level, the hearing examiner denied the 1995 claim for additional disability benefits. Ottema filed a timely petition for review of this decision with th
Page 1 2 3 4 Wyoming Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|