               IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 68

                                                         APRIL TERM, A.D. 2014

                                                                  May 29, 2014

STATE OF WYOMING, ex rel.,
DEPARTMENT OF WORKFORCE
SERVICES, WORKERS’ SAFETY AND
COMPENSATION DIVISION,

Appellant
(Defendant),
                                                     S-13-0194
v.

ERIN R. CLEMENTS,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                        The Honorable Steven K. Sharpe, Judge

Representing Appellant:
      Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
      General; Michael J. Finn, Senior Assistant Attorney General. Argument by Mr.
      Finn.

Representing Appellee:
      George Santini of Ross, Ross & Santini, LLC, Cheyenne, Wyoming.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] By statute, the Wyoming legislature limited awards of temporary total disability
(TTD) benefits to twenty-four months but gave the Wyoming Worker’s Safety and
Compensation Division (the Division) discretionary authority to extend the time for those
benefits in the event of extraordinary circumstances. The Division adopted a rule
limiting any extension of TTD benefits to a maximum of twelve months. Erin R.
Clements received the statutory maximum and the additional twelve months. She sought
additional TTD benefits, which the Division denied. She filed a declaratory judgment
action asking the district court to hold that the Division exceeded its authority when it
limited the extension to twelve months. The district court concluded the Division
exceeded its authority when it adopted a rule limiting TTD benefits to a total of thirty-six
months under any circumstances. The Division appealed. We affirm.

                                          ISSUE

[¶2] The issue for this Court to determine is whether the district court erred in holding
that the Division exceeded its statutory authority by adopting a rule limiting additional
TTD benefits to twelve months.

                                         FACTS

[¶3] Ms. Clements was injured in November 2008 while working at Little America in
Cheyenne, Wyoming. She applied for and received TTD benefits for twenty-four
months, obtained an extension of TTD benefits for another twelve months and then
applied for more TTD benefits. On July 6, 2012, the Division entered a final
determination denying Ms. Clements’ claim for additional TTD benefits because she had
received all the TTD benefits to which she was entitled under Wyo. Stat. Ann. § 27-14-
404 (LexisNexis 2013) and Division rules. Ms. Clements objected to the determination
and asked for a hearing.

[¶4] The matter was referred to the Office of Administrative Hearings (OAH) for a
contested case hearing. The OAH issued an order upholding the denial of Ms. Clements’
claim for additional TTD benefits. Ms. Clements sought review of the denial in district
court and also filed a complaint for declaratory relief, asserting the Division exceeded its
authority when it adopted Chapter 7, Section 2(b) of the Workers’ Compensation
Division Rules. She argued that the rule contravened the legislative intent evident in §
27-14-404(a).

[¶5] The Division filed a motion to dismiss the complaint for declaratory relief. In
support of the motion, the Division argued that Ms. Clements had not exhausted her
administrative remedies and the relief she sought was foreclosed by this Court’s holdings
in State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Smith, 2013 WY 26, ¶ 17, 296 P.3d

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939 (Wyo. 2013) and Picozzi v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2013
WY 86, 304 P.3d 977 (Wyo. 2013).

[¶6] After asking for additional briefing on the motion to dismiss and holding a hearing,
the district court entered an order denying the motion and granting declaratory relief.
The Division timely appealed from the order.

                               STANDARD OF REVIEW

[¶7] The sole issue in this case is whether the Division exceeded its statutory authority
when it adopted a rule setting a maximum number of months TTD benefits are payable
under any circumstances. In accordance with the Wyoming Administrative Procedure
Act, the Court will interpret the statutory provisions, and set aside the agency’s action if
it exceeds the agency’s statutory authority. Qwest Corp. v. Public Serv. Comm’n, 2007
WY 97, ¶ 3, 161 P.3d 495, 497 (Wyo. 2007), citing Wyo. Stat. Ann. § 16-3-114(c)
(LexisNexis 2005). Statutory interpretation is a question of law, so our review is de
novo. Qwest, citing Chevron U.S.A., Inc. v. Dep’t of Revenue, 2007 WY 43, ¶ 9, 154
P.3d 331, 334 (Wyo. 2007).

                                      DISCUSSION

[¶8] The statute at issue in this case, with the disputed language underlined, provides in
relevant part as follows:

              § 27-14-404. Temporary total disability; benefits;
              determination of eligibility; . . . period of certification
              limited; . . . .
                      (a) If after a compensable injury is sustained and as a
              result of the injury the employee is subject to temporary total
              disability as defined under W.S. 27-14-102(a)(xviii), the
              injured employee is entitled to receive a temporary total
              disability award for the period of temporary total disability as
              provided by W.S. 27-14-403(c). The period for receiving a
              temporary total disability award under this section for injuries
              resulting from any one (1) incident or accident shall not
              exceed a cumulative period of twenty-four (24) months,
              except that the division pursuant to its rules and regulations
              and in its discretion may in the event of extraordinary
              circumstances award additional temporary total disability
              benefits. The division’s decision to grant such additional
              benefits shall be reviewable by a hearing examiner only for
              an abuse of discretion by the division.



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[¶9] Chapter 7, Section 2(b) of the Division rules, adopted pursuant to the above statute
provides:

             (b)      Limitation on Period of [TTD]; Extraordinary
             Circumstance.
                     (i) The period for receiving a TTD award under W.S.
             § 27-14-404 resulting from a single incident, accident or
             period of cumulative trauma or exposure shall not exceed a
             cumulative period of 24 months, except that the Division, in
             its discretion, may award additional TTD benefits of the
             claimant establishes by clear and convincing evidence that the
             claimant:
                        (A) remains totally disabled, due solely to a work-
             related injury;
                        (B) has not recovered to the extent that he or she can
             return to gainful employment;
                        (C) reasonably expects to return to gainful
             employment within 12 months following the date of the first
             TTD claim occurring after the expiration of the 24-month
             period;
                        (D) does not have an ascertainable loss which would
             qualify for benefits under W.S. §§ 27-14-405 or 406; and,
                        (E) has taken all reasonable measures to facilitate
             recovery, including compliance with the recommendations of
             the treating physician.
                     (ii) No awards of additional TTD benefits pursuant to
             subsection (i) of this section shall exceed 12 cumulative
             calendar months.

[¶10] When interpreting statutes:

                     [Our] paramount consideration is to determine the
             legislature’s intent, which must be ascertained initially and
             primarily from the words used in the statute. We look first to
             the plain and ordinary meaning of the words to determine if
             the statute is ambiguous. A statute is clear and unambiguous
             if its wording is such that reasonable persons are able to agree
             on its meaning with consistency and predictability.
             Conversely, a statute is ambiguous if it is found to be vague
             or uncertain and subject to varying interpretations.




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Barlow Ranch, Ltd. Partnership v. Greencore Pipeline Co. LLC, 2013 WY 34, ¶ 18, 301
P.3d 75, 83 (Wyo. 2013) (citations omitted).

             The determination of whether a statute is clear or ambiguous
             is a matter of law for the court. When the language is clear,
             we give effect to the ordinary and obvious meaning of the
             words employed by the legislature. In ascertaining the
             meaning of a statutory provision, all statutes relating to the
             same subject or having the same general purpose must be
             considered in pari materia and construed in harmony. We do
             not apply our rules of statutory construction unless a statute is
             ambiguous.

Id., ¶ 18, 301 P.3d at 84 (internal citations omitted). These same rules apply when we are
asked to interpret an administrative rule. Wilson Advisory Committee v. Bd. of County
Comm’rs, 2012 WY 163, ¶ 31, 292 P.3d 855, 863 (Wyo. 2012).

[¶11] In the present case, we must determine the legislature’s intent in establishing a
maximum twenty-four month period for TTD benefits, but giving the Division the
discretion to award additional TTD benefit in the event of extraordinary circumstances.
As reflected in paragraph 8 above, the exact language at issue states that the period for
receiving TTD benefits for a work injury shall not exceed twenty-four months, except
that the division “may in the event of extraordinary circumstances award additional
temporary total disability benefits.” The word “may” is permissive, meaning that it
authorizes the proposed action but does not require it. Bourke v. Grey Wolf Drilling, Co.
LP, 2013 WY 93, ¶ 18, 305 P.3d 1164, 1168 (Wyo. 2013); Anderson v. Bd. of County
Comm’rs of Teton Co., 2009 WY 122, ¶ 22, 217 P.3d 401, 407 (Wyo. 2009). Thus,
pursuant to § 27-14-404, the Division was authorized, but not required, to award TTD
benefits beyond the statutory maximum.

[¶12] The statute specifies the Division may award TTD benefits beyond the statutory
maximum “in the event of extraordinary circumstances.” The plain and ordinary
meaning of the word “extraordinary” is, “beyond what is usual, regular, or customary.”
Webster’s Third New Int’l Dictionary 807 (2002). The plain and ordinary meaning of the
word “circumstances” is, “the way something happens: the specific details of an event.”
Id. See also Black’s Law Dictionary 277 (9th ed. 2004), defining extraordinary
circumstances as “a highly unusual set of facts that are not commonly associated with a
particular thing or event.” Thus, pursuant to the statutory language, the Division is
authorized to award TTD benefits beyond the statutory maximum when the specific
details or facts are beyond what is usual or commonly associated with the event.




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[¶13] Giving the words used in the statute their plain and ordinary meaning, the
legislative intent appears to have been to allow the Division to award additional TTD
benefits beyond the statutory limit in cases where extraordinary circumstances warrant an
additional award. The plain and ordinary meaning of the words used do not suggest the
legislature intended the Division to set a limit on TTD benefits after which no TTD
benefits can be awarded no matter what the circumstances. In special situations,
justifying extraordinary treatment, the legislature intended the Division to have the
authority to award more TTD benefits than the statutory maximum. While it clearly
intended to limit TTD benefits in most cases, it also clearly intended to allow TTD
benefits beyond the limit when exceptional circumstances exist. The Division cannot
abrogate its responsibility to apply its discretion in exceptional circumstances.

[¶14] This Court has said:

             It is axiomatic that an agency has and may properly exercise
             only those powers authorized by the legislature. U S West
             Communications, Inc. v. Wyoming Public Service Com’n,
             958 P.2d 371, 374 (Wyo.1998) (quoting Tri County
             Telephone Ass’n, Inc. v. Wyoming Public Service Com’n,
             910 P.2d 1359, 1361 (Wyo.1996)); Preferred Energy
             Properties v. Wyoming State Bd. of Equalization, 890 P.2d
             1110, 1113 (Wyo.1995); Hupp v. Employment Sec. Com’n of
             Wyoming, 715 P.2d 223, 225 (Wyo.1986). An agency is
             wholly without power to modify, dilute or change in any
             way the statutory provisions from which it derives its
             authority. When an administrative agency takes an action
             that exceeds its authority or proceeds in a manner
             unauthorized by law, that action is null and void. Triska v.
             Department of Health and Environmental Control, 292 S.C.
             190, 355 S.E.2d 531, 533 (1987).

Wyoming Dep’t of Revenue v. Guthrie, 2005 WY 79, ¶ 18, 115 P.3d 1086, 1093 (Wyo.
2005). The Division exceeded its statutory authority when it adopted a rule providing
that additional TTD benefits could not exceed twelve months under any circumstances,
no matter how extraordinary.

[¶15] Our holding is not precluded by our precedent. We have not been previously
asked to determine whether the Division’s rule exceeds the authority granted under § 27-
14-404. Smith and Picozzi addressed the question of whether a worker who received
TTD benefits for thirty-six months was entitled to another thirty-six months pursuant to
the second compensable injury rule. In concluding he was not, we did not consider
whether the Division exceeded its authority in promulgating the rule. Likewise, we did



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not consider the validity of the Division’s rule in Dorman v. State ex rel. Wyo. Workers’
Safety & Comp. Div., 2012 WY 94, 281 P.3d 342 (Wyo. 2012).

[¶16] The district court’s order granting declaratory relief is affirmed.




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