                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 26

                                                                 OCTOBER TERM, A.D. 2012


                                                                            March 6, 2013


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

Appellant
(Petitioner),
                                                                    No. S-12-0169
v.

TIMOTHY SMITH,

Appellee
(Respondent).

                       Appeal from the District Court of Natrona County
                         The Honorable Catherine E. Wilking, Judge

Representing Appellant:
      Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney
      General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry,
      Assistant Attorney General; Amy M. Taheri, Special Assistant Attorney General.

Representing Appellee:
      Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.


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.
BURKE, Justice.

[¶1] Appellant, Wyoming Workers’ Safety and Compensation Division, challenges an
order from the Office of Administrative Hearings awarding additional temporary total
disability (TTD) benefits to Appellee, Timothy Smith. The Division contends the award
exceeded the maximum period for which an injured worker may receive temporary total
disability benefits. We agree and reverse.

                                                   ISSUE

[¶2]      The Division presents a single issue:

                  Smith sustained a compensable neck injury and, despite four
                  separate surgeries to address it, never returned to work. The
                  Division paid Smith Temporary Total Disability benefits for
                  thirty-six months—the maximum period allowed by Wyo.
                  Stat. Ann. § 27-14-404(a) and the Division’s Rules. The
                  OAH found that each of Smith’s four separate surgeries was a
                  second compensable injury, extending the amount of time the
                  Division could pay TTD benefits. Do Wyo. Stat. Ann. § 27-
                  14-404(a) and the Division’s Rules limit TTD benefits to a
                  cumulative maximum of thirty-six months for injuries
                  resulting from any one incident or accident regardless of the
                  second compensable injury rule?

Mr. Smith phrases the issue as follows:

                  Does a second compensable injury restart the limitation
                  period for paying temporary total disability benefits under
                  W.S. 27-14-404(a)?

                                                   FACTS

[¶3] The facts in this case are not in dispute. Mr. Smith originally injured his neck in
2001. He was diagnosed with a C5-6 disk herniation, underwent fusion surgery, and
returned to work after a period of recovery. 1 Subsequently, in February, 2006, while
working as a mechanic for Wyoming Machinery in Casper, Mr. Smith fell backwards and
reinjured his neck. As a result of this incident, Mr. Smith’s treating physician,
Dr. Clayton Turner, completed a temporary total disability form certifying that Mr. Smith


1
    There is no indication in the record that Mr. Smith’s 2001 injury was work-related.




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was temporarily disabled from returning to any gainful employment starting on March
30, 2006.

[¶4] Over the next four years, Mr. Smith underwent a series of surgeries on his cervical
spine. In May, 2006, Dr. Turner performed an anterior cervical diskectomy and fusion at
the C6-7 level and removed a plate from the C5-6 level that had been placed there during
the 2001 fusion surgery. In February, 2007, a CT scan of Mr. Smith’s neck revealed that
the C6-7 fusion had not healed. Consequently, Dr. Turner performed a repeat anterior
cervical fusion surgery at the C6-7 level in May, 2007. That surgery also failed to
achieve a solid fusion. As a result, Dr. Turner conducted a third surgery in February,
2008, in which he inserted a bone graft at the C6-7 level. Mr. Smith continued to
experience neck pain after the third procedure, and Dr. Turner continued to certify that
Mr. Smith was temporarily totally disabled. During the period from March, 2006 through
March, 2009, Dr. Turner certified Mr. Smith’s temporary total disability in twenty-five
successive one- and two-month periods. Based on these certifications, the Division paid
Mr. Smith TTD benefits continuously for thirty-six months.

[¶5] In the summer of 2009, Mr. Smith began experiencing left shoulder and arm pain
in association with his neck pain. In December, he received a nerve root block at the C5
level that temporarily alleviated his shoulder and arm pain. Based on the results of the
nerve block, Dr. Turner proposed surgery to alleviate the shoulder and upper arm pain.
Dr. Turner performed an anterior diskectomy and fusion at the C4-5 level in February,
2010.

[¶6] Mr. Smith sought additional TTD benefits for the treatment period from March,
2009 to the February, 2010 surgery, and after the February, 2010 surgery. The Division
issued a Final Determination denying payment of additional TTD benefits for this period,
noting that Wyo. Stat. Ann. § 27-14-404(a) limits the amount of time for which TTD
benefits may be received by an injured worker. The Division stated that “we do not
approve the payment of temporary total disability benefits after March 30, 2009, as you
have received thirty six (36) months of temporary total disability for your cervical spine
work injury of February 28, 2006.” Mr. Smith objected to the Division’s Final
Determination, and the matter was referred to the Office of Administrative Hearings for a
contested case hearing.

[¶7] Both parties filed motions for summary judgment. The OAH determined that
Mr. Smith was entitled to additional TTD benefits and granted Mr. Smith’s motion. It
reasoned that Mr. Smith’s shoulder and arm pain constituted a “second compensable
injury,” and that a second compensable injury results in a new injury date which resets
the period for which TTD benefits may be received under Wyo. Stat. Ann. § 27-14-
404(a). In making this determination, the OAH stated:

             It should be noted the second compensable injury rule was


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             created by the court and is not found in the statutes. The
             statutes require a timely filing of a Report of Injury for any
             work injury, yet this provision has not been required in
             second compensable injury cases. It follows that other
             statutory requirements also do not apply in second
             compensable injury cases. This Office finds a second
             compensable injury is a new injury and an employee is
             entitled to TTD benefits for the second compensable injury.
             This Office also finds the limitation of TTD benefits in the
             statute and the rule applies to the original injury and an
             employee is entitled to additional TTD benefits in excess of
             36 months if there is a new and subsequent injury.

[¶8] After receiving the OAH’s order, the Division filed a petition for review in district
court. That case was assigned as Civil Action No. 92410. The Division also issued a
second Final Determination which concluded that Mr. Smith had no actual monthly
earnings at the time of each of his successive surgeries. As a result, the Division set the
rate of pay for Mr. Smith’s temporary total disability benefit at zero. Mr. Smith objected
to the Division’s determination, and that matter was also referred to the OAH. The
parties again filed cross motions for summary judgment, and the OAH granted summary
judgment in favor of Mr. Smith. The Division filed a second petition for review in
district court, and that case was assigned as Civil Action No. 93091. The district court
subsequently consolidated the appeals on the Division’s motion. The district court
affirmed both of the OAH’s orders granting summary judgment to Mr. Smith. The
Division filed a timely appeal. On appeal, the Division challenges only the OAH’s initial
order finding Mr. Smith eligible for additional TTD benefits.

                               STANDARD OF REVIEW

[¶9] The issue presented in this case is one of statutory interpretation. Statutory
interpretation raises questions of law, which we review de novo. Wyoming Dep’t of
Envtl. Quality v. Wyoming Outdoor Council, 2012 WY 135, ¶ 8, 286 P.3d 1045, 1048
(Wyo. 2012).

                    The interpretation and correct application of the
                    provisions of the Wyoming Worker’s Compensation
                    Act are questions of law over which our review
                    authority is plenary. Conclusions of law made by an
                    administrative agency are affirmed only if they are in
                    accord with the law. We do not afford any deference to
                    the agency’s determination, and we will correct any
                    error made by the agency in either interpreting or
                    applying the law.


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State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Singer, 2011 WY 57, ¶ 5, 248 P.3d
1155, 1157 (Wyo. 2011) (quoting Ball v. State ex rel. Wyo. Workers’ Safety & Comp.
Div., 2010 WY 128, ¶ 18, 239 P.3d 621, 627 (Wyo. 2010)). We review the district
court’s decision as if it had come directly from the administrative agency. Anderson v.
State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY 157, ¶ 7, 245 P.3d 263, 266
(Wyo. 2010).

                                     DISCUSSION

[¶10] The Wyoming Worker’s Compensation Act provides for the award of TTD
benefits to an injured worker. The purpose of a TTD award is “to provide income for an
employee during the time of healing from his injury and until his condition has
stabilized.” Phillips v. TIC-The Industrial Co. of Wyoming, Inc. (In re Phillips), 2005
WY 40, ¶ 27, 109 P.3d 520, 532 (Wyo. 2005). A “temporary total disability” is defined
under the Act as follows:

             “Temporary total disability” means that period of time an
             employee is temporarily and totally incapacitated from
             performing employment at any gainful employment or
             occupation for which he is reasonably suited by experience or
             training. The period of temporary total disability terminates at
             the time the employee completely recovers or qualifies for
             benefits under W.S. 27-14-405 [governing permanent partial
             disability] or 27-14-406 [governing permanent total
             disability].

Wyo. Stat. Ann. § 27-14-102(a)(xviii) (LexisNexis 2011).

[¶11] Wyo. Stat. Ann. § 27-14-404 establishes a limitation on the amount of time that an
injured worker may receive TTD benefits. The statute provides, in relevant part, as
follows:

             § 27-14-404. Temporary total disability; benefits;
             determination of eligibility; exceptions for volunteers or
             prisoners; period of certification limited; temporary light
             duty employment.

             (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


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             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.

(Emphasis added.) As authorized under this statute, the Division has issued rules and
regulations relating to the receipt of additional TTD benefits in extraordinary
circumstances. According to those rules, an award of additional TTD benefits shall not
exceed twelve months:

             (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


                                           5
                           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.

Rules, Regulations and Fee Schedules of the Wyoming Workers’ Safety and
Compensation Division, ch. 7, § 2(b)(i)-(ii) (emphasis added). Both parties contend that
Wyo. Stat. Ann. § 27-14-404(a) is unambiguous. When a statute is unambiguous, we
give effect to the plain language of the statute. Stallman v. State ex rel. Wyo. Workers’
Safety & Comp. Div. (In re Stallman), 2012 WY 147, ¶ 14, 288 P.3d 707, 712 (Wyo.
2012).

[¶12] It is undisputed that Mr. Smith was injured when he fell at work in February,
2006. The Division contends that all of Mr. Smith’s claims for TTD benefits arise from
that accident. Accordingly, the Division asserts that, because the limitation on receipt of
TTD benefits applies to all “injuries” resulting from “any one (1) incident or accident,”
Mr. Smith is entitled to TTD benefits for a maximum of thirty-six months, including the
twenty-four months authorized under Section 404(a), and an additional twelve months
allowed in extraordinary circumstances by Division rules. Because the Division paid
TTD benefits to Mr. Smith for thirty-six months, from March, 2006 to March, 2009, it
asserts that he is not entitled to any additional TTD benefits as a result of his workplace
accident.

[¶13] Mr. Smith contends that the Division’s position “conflicts with the second
compensable injury rule.” Claiming that each of his unsuccessful surgeries gave rise to a
“second compensable injury,” he asserts that the “statutory time restriction set forth in
W.S. § 27-14-404(a) necessarily starts anew after the unanticipated second surgery is
performed because the second surgery was treating a new injury from a separate
occurrence.” We do not agree.

[¶14] The limitation on receipt of TTD benefits set forth in Section 404(a) applies to
“injuries resulting from any one (1) incident or accident.” This phrasing is consistent
with the notion, previously expressed by this Court, that “a single incident at work can
give rise to more than one compensable injury.” In re Worker’s Comp. Claim of
Kaczmarek ex rel. Wyo. Workers’ Safety, 2009 WY 110, ¶ 9, 215 P.3d 277, 281 (Wyo.
2009). The distinction between the terms “injury” and “accident” inherent in the
principle that multiple injuries may arise from a single workplace accident is further
confirmed in our precedent. In In re Barnes, 587 P.2d 214, 218 (Wyo. 1978), we stated
that “the term ‘injury’, as used in the Worker’s Compensation Law, means compensable
injury and is not used in the sense of the occurrence of an industrial accident giving rise
to or causing the compensable injury.” By using the term “injuries,” in the plural form,


                                            6
Section 404(a) anticipates that multiple injuries may arise from a single workplace
accident. The statute clearly provides, however, that awards of TTD benefits for all such
injuries resulting from “any one (1) incident or accident” are subject to the “cumulative
period” set forth in the statute.

[¶15] In order to receive worker’s compensation benefits, a claimant has the burden of
proving a causal connection between the work-related injury and the injury for which
benefits are sought. Davenport v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2012
WY 6, ¶ 22, 268 P.3d 1038, 1044 (Wyo. 2012). The second compensable injury rule
applies when “an initial compensable injury ripens into a condition requiring additional
medical intervention.” Id., ¶ 21, 268 P.3d at 1044. We have explained that the second
compensable injury rule is “not a court-created benefit or remedy,” but rather “an
expression of this Court’s interpretation of the causal link required between an
employee’s work and original work injury and any related and subsequently developed
injury or condition.” Ball, ¶¶ 25-26, 239 P.3d at 628-29. The original work injury
occurred in this case in February, 2006.

[¶16] Mr. Smith relies on the following language from our decision in Casper Oil Co. v.
Evenson, 888 P.2d 221, 226 (Wyo. 1995) to support his claim that a second compensable
injury restarts the maximum period for which temporary total disability benefits may be
received under Wyo. Stat. Ann. § 27-14-404(a):

                     The phrase “if after a compensable injury” is important
             to our analysis. Wyo. Stat. § 27-14-404(a). The phrase neither
             creates nor is subject to any time limitations. The statute
             simply requires that the temporary disability be the result of a
             compensable injury. The statute does not require that the
             temporary disability come about as a result of the first
             compensable injury, or the original compensable injury, but
             simply that the temporary disability be caused by a
             compensable injury. The statute in no way limits the award of
             temporary total disability benefits for a second compensable
             injury to a certain period of time following the first or original
             compensable injury.

(Emphasis in original.) Our decision in that case, however, did not address the maximum
period for which TTD benefits may be received under Section 404(a). In fact, at that
time, the second sentence of Section 404(a), setting forth the maximum period for receipt
of TTD benefits, did not appear in the statute. The twenty-four month limitation on
receipt of TTD benefits was added to the statute in 1996, the year following our decision
in Casper Oil Co. v. Evenson. 1996 Wyo. Sess. Laws ch. 82, § 1. In contrast to the
present case, the issue in Casper Oil was whether the claimant’s “1993 fusion surgery
was linked to his initial back injury in 1989 and was, therefore, a subsequent


                                             7
compensable injury for which the hearing examiner could properly award medical
benefits and temporary total disability benefits.” Id. at 224. When the quoted language is
placed in the appropriate context, it is clear that the decision held that the statute did not
restrict eligibility for receipt of TTD benefits to second compensable injuries arising
within a certain time following the original injury. In this case, the Division does not
contend that Mr. Smith is not entitled to receive benefits for a second compensable
injury. It simply asserts that additional TTD benefits cannot be awarded because
Mr. Smith has already received the maximum benefits allowable. Our holding in Casper
Oil has no bearing on the present case. Mr. Smith’s reliance on the second compensable
injury rule is misplaced.

[¶17] In sum, we find Wyo. Stat. Ann. § 27-14-404(a) and the Division’s rules to be
unambiguous. Receipt of temporary total disability benefits is limited to a maximum
period of thirty-six months, which includes twenty-four months authorized under Section
404(a) and an additional twelve months allowed in extraordinary circumstances pursuant
to Division rules. 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. Because the Division
awarded TTD benefits to Mr. Smith for a period of thirty-six months as a result of a
single workplace accident, he is not entitled to receive additional TTD benefits.

[¶18] Reversed and remanded for entry of an order consistent with this opinion.




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