                IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 86

                                                            APRIL TERM, A.D. 2013

                                                                   July 16, 2013

NICHOLAS A. PICOZZI,

Appellant
(Respondent),

v.
                                                     S-12-0254
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.



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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
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


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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.

[¶6] 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 disability
benefits was, therefore, inapplicable. The Division responded to this decision with a
Petition for Judicial Review, which was granted.

[¶7] The district court affirmed the hearing examiner’s determination that the
appellant’s shoulder injury constituted a second compensable injury. However, the
district court concluded that the hearing examiner improperly determined that the thirty-
six month time limitation did not apply to the appellant’s benefits. The appellant now
appeals that decision.

                              STANDARD OF REVIEW

[¶8] An agency’s legal conclusions will be reviewed de novo. Dale v. S & S Builders,
LLC, 2008 WY 84, ¶ 26, 188 P.3d 554, 561-62 (Wyo. 2008). No deference will be given
to the decision of the district court. Newman v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2002 WY 91, ¶ 7, 49 P.3d 163, 166 (Wyo. 2002).

                                     DISCUSSION

                 Did the OAH hearing examiner err as a matter of law
                       by granting the appellant’s application for
                           temporary total disability benefits?

[¶9] The period for receiving a temporary total disability award is limited by statute as
well as regulations promulgated by the Division.

             (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


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            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.

Wyo. Stat. Ann. § 27-14-404(a) (LexisNexis 2011) (emphasis added). The Division has
promulgated rules allowing for extension in extraordinary circumstances.

            (b) Limitation on Period of Temporary Total Disability
            (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 if 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.




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                  (ii) No awards of additional TTD benefits pursuant to
              subsection (i) of this section shall exceed 12 cumulative
              calendar months.

Rules, Regulations and Fee Schedules of the Wyoming Workers’ Safety and
Compensation Division, ch. 7, § 2(b)(i)-(ii) (2011) (emphasis added). The statute allows
for twenty-four months of payments and the Division rules allow for an additional twelve
months of payments under extraordinary circumstances.

[¶10] The appellant and the Division disagree regarding whether the appellant’s
shoulder surgery constituted a second compensable injury. As a result of this Court’s
holding in State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Smith, 2013 WY 26, 296
P.3d 939 (Wyo. 2013), published after the briefs in this matter were submitted, whether
or not the shoulder surgery constitutes a second compensable injury has no bearing on the
ultimate conclusion. Smith injured his neck in a work-related accident. Id. at ¶ 3, at 940.
After receiving temporary total disability for thirty-six months, Smith began to
experience shoulder and arm pain related to his neck injury. Id. at ¶¶ 4-5, at 941. The
Division denied Smith’s claim for additional benefits. Id. at ¶ 6, at 941. Following
Smith’s demand for a contested case hearing with the OAH, and the Division’s petition
for review in the district court of the hearing examiner’s conclusion, the Division
appealed to this Court. Id. at ¶¶ 6-8, at 941. We agreed with the Division and denied
Smith’s request for additional temporary total disability benefits for his shoulder pain
because he already received benefits for thirty-six months as a result of an injury from the
same work-related accident. “Under the plain language of the statute, this limitation
applies to all ‘injuries’ resulting from ‘any one (1) incident or accident,’ encompassing
situations in which the claimant receives multiple injuries simultaneously or a subsequent
compensable injury as the result of a single workplace accident.” Id. at ¶ 17, at 944.

[¶11] The facts at issue in the instant case are similar to those in Smith. The appellant
injured his neck in a compensable work-related accident. As a result of that accident, he
received thirty-six months of temporary total disability benefits. Towards the end of that
period, he sought treatment for shoulder pain that was the result of the same accident.
The thirty-six month period lapsed prior to his shoulder surgery. Regardless of whether
this constitutes a second compensable injury, both the neck and shoulder injuries resulted
from the same work-place accident. Because the thirty-six month limitation applies to
“all ‘injuries’ resulting from ‘any one (1) incident or accident,’” the appellant is not
entitled to additional temporary total disability benefits. Id.




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

[¶12] The appellant argues in the alternative that the Division is equitably estopped from
enforcing the thirty-six month limitation. Specifically, the appellant argues that the
Division’s failure to provide a list of physicians near his home caused the treatment of his
shoulder to extend beyond the proscribed time limitation.

              We have recognized that estoppel is available against a
              governmental agency for the unintentional, misleading
              statement of its representative. [Wyo. Workers’ Comp. Div.
              v.] Barker, 978 P.2d [1156,] 1159-61 [(Wyo. 1999)]; Bauer
              [v. Wyo. Workers’ Comp. Div.], 695 P.2d [1048,] 1050-53
              [(Wyo. 1985)]. Equitable estoppel may be invoked to prevent
              strict application of both the workers’ compensation statute of
              limitations and its accident report requirement. [Bauer, 695
              P.2d] at 1053. If a valid claim is lost because of some action
              by the employer or the insurance provider (here the state of
              Wyoming) reasonably relied upon by the employee to her
              detriment, relief should be granted. Id. at 1052.

Appleby v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2002 WY 84, ¶ 19, 47 P.3d
613, 619 (Wyo. 2002). In the instant case, according to the appellant, he was unfamiliar
with the Wyoming workers’ compensation program. He repeatedly requested a list of
doctors from his claims analyst because he believed that he was required to visit only
doctors to whom he was referred to by the Division. By the time he was provided with
such a list, the thirty-six month period was near expiration.

[¶13] For equitable estoppel to apply, the appellant must show that he relied, to his
detriment, upon some action of the Division. In Appleby, this Court held that equitable
estoppel applied. Appleby, like the appellant here, was unfamiliar with the process to
obtain benefits. Id. at ¶ 5, at 616. Appleby’s husband called the claims analyst assigned
to his wife’s case to find out why her claim had initially been denied. The claims analyst
mistakenly told him that it was too late to appeal the final determination. Id. Appleby
relied upon this information to her detriment and failed to file an appeal prior to the
actual deadline. Id. at ¶ 6, at 616.

[¶14] Unlike in Appleby, the appellant relied upon his own misunderstanding of the
Wyoming Workers’ Compensation Act. He testified that he was “unfamiliar with the
system.” When asked if his case analyst ever said she would refer him to a doctor, the
appellant responded that there were a few doctors to whom the Division sent him and,
therefore, he assumed that he needed Division approval to see any other doctors. In


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reality, the Division never sent the appellant to a doctor for treatment, but rather, he was
sent to doctors solely to perform independent medical examinations. The appellant was
aware of this, and was also aware that the doctors who performed the independent
medical examinations were, in fact, prohibited from providing treatment. For these
reasons, equitable estoppel cannot apply to prevent the application of the thirty-six month
limitation.

                                     CONCLUSION

[¶15] The appellant received temporary total disability benefits for thirty-six months as a
result of work-related injury to his neck. After the thirty-six months expired, the
appellant underwent shoulder surgery. Because the appellant’s shoulder injury was a
result of the same accident that caused his neck injury, he is not entitled to an additional
period of benefits. Equitable estoppel does not prevent the enforcement of the thirty-six
month limitation because the appellant did not detrimentally rely upon an action by the
Division. We affirm the district’s court’s decision, finding that the appellant was not
entitled to further benefits.




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