DEFINITIONS

Employer

Employer means any person or entity employing an employee engaged in any extrahazardous occupation or electing coverage under WYO. STAT. ANN. § 27-14-108(j) and at least one (1) of whose employees is described in WYO. STAT. ANN. § 27-14-301. WYO. STAT. ANN. § 27-14-102(a)(viii) (LexisNexis 2013). “Employer” includes: a) the governmental entity for which recipients of public assistance perform work if that work does not otherwise establish a covered employer and employee relationship b) the governmental entity for which volunteers perform the specified volunteer activities under WYO. STAT. ANN. § 27-14-108(e); c) the governmental entity for which prisoners and probationers work or perform community service under WYO. STAT. ANN. §§ 27-14-108(d)(ix) or (xv); d) an owner-operator of a mine at which any mine rescue operation or training occurs; e) a temporary service contractor for a temporary worker; f) any person, contractor, firm, association or corporation otherwise qualifying as an employer and who utilizes the services of a worker furnished by another contractor, joint employer, firm, association, person or corporation other than a temporary service contractor, joint employer, independent contractor or owner and operator excluded as an employee under WYO. STAT. ANN. § 27-14-102(a)(vii)(O); and g) any employer otherwise qualifying as an employer and participating in a school-to-work program approved by the department of workforce services, any local school district board of trustees, community college district board of trustees or the department of education, and the employer previously elected coverage in writing pursuant to WYO. STAT. ANN. § 27-14-108(m). WYO. STAT. ANN. § 27-14-102(a)(viii) (LexisNexis 2013).

Employee

Employee**** means any person engaged in any extrahazardous employment under any appointment, contract of hire or apprenticeship, express or implied, oral or written, and includes legally employed minors, aliens authorized to work by the United States department of justice, office of citizenship and immigration services, and aliens whom the employer reasonably believes, at the date of hire and the date of injury based upon documentation in the employer’s possession, to be authorized to work by the United States department of justice, office of citizenship and immigration services. WYO. STAT. ANN. § 27-14-102(a)(vii) (LexisNexis 2013). “Employee” does not include: a) any individual whose employment is determined to be a casual labor; b) a sole proprietor or a partner of a business partnership unless coverage is elected pursuant to WYO. STAT. ANN. § 27-14-108(k); c) an officer of a corporation unless coverage is elected pursuant to WYO. STAT. ANN. § 27-14-108(k); d) any individual engaged as an independent contractor; e) a spouse or dependent of an employer living in the employer’s household; f) a professional athlete, except as provided in WYO. STAT. ANN. § 27-14-108(q); g) an employee of a private household; h) a private duty nurse engaged by a private party; i) an employee of the federal government; j) any volunteer unless covered pursuant to WYO. STAT. ANN. § 27-14-108(e); k) any adult or juvenile prisoner or probationer unless covered pursuant to WYO. STAT. ANN. § 27-14-108(d)(ix); l) an elected public official or an appointed member of any governmental board or commission, except for a duly elected or appointed sheriff or county coroner; m) the owner and operator of a motor vehicle which is leased or contracted with driver to a for-hire common or contract carrier (the owner-operator shall not be an employee if he performs the service pursuant to a contract which provides that the owner-operator shall not be treated as an employee for purposes of the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act and income tax withholding at source); n) a member of a limited liability company unless coverage is elected pursuant to WYO. STAT. ANN. § 27-14-108(k); o) a foster parent providing foster care services for the department of family services or for a certified child placement agency; p) an individual providing child day care or babysitting services, whose wages are subsidized or paid in whole or in part by the Wyoming department of family services (this exclusion from coverage does not exclude form coverage an individual providing child day care or babysitting services as an employee of any individual or entity other than the Wyoming department of family services). WYO. STAT. ANN. § 27-14-102(a)(vii) (LexisNexis 2013).

Borrowed Employee

Borrowed Employee is defined as an employee of one employer that is provided to another employer and becomes the borrowed servant of the second employer for that particular transaction. Franks v. Indep. Prod. Co., Inc., 2004 WY 97, ¶ 20, 96 P.3d 484, 494 (Wyo. 2004). If the second employer exercises control over the “borrowed servant,” the second employer assumes liability for the activities of that borrowed employee, and the original employer is not liable for any of that employee’s conduct. Id.

Extra hazardous Employment

Extra hazardous Employment is defined by WYO. STAT. ANN. § 27-14-108. Pursuant to this statute, “[r]egardless of individual occupation, all workers employed [in certain] sectors, industry groups and industries” are deemed to be employed in an extrahazardous employment. WYO. STAT. ANN. § 27-14-108(a)(ii). These sectors, industry groups and industries are defined by the “most recent edition of the North American Industry Classification System (NAICS) manual” and include, but are not limited, to those sectors identified by WYO. STAT. ANN. § 27-14-108(a)(ii).

Independent Contractor

Independent Contractor is defined as “one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the result of the work.” Franks v. Indep. Prod. Co., 2007 WY 97, ¶ 10, 96 P.3d 484, 490 (Wyo. 2007)

EXCLUSIVE REMEDY

General Rule

The Wyoming Workers’ Compensation Act (“Act”) was enacted by the Wyoming Legislature to “ensure quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to employers.” WYO. STAT. ANN. § 27-14-101(b) (LexisNexis 2013). Under the Act, employees receive a guarantee that, if they are injured in the course of employment, they will be entitled to compensation for medical bills and disability benefits and, in return for this guarantee, employees cannot bring a lawsuit against their employers because of the injury. WYO. STAT. ANN. § 27-14-104(a) (LexisNexis 2013); State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Summers, 987 P.2d 153, 157 (Wyo. 1999); Perry v. State ex rel. Wyo. Workers’ Safety & Comp. Div.,134 P.3d 1242, 1249 (Wyo. 2006) (The Wyoming Workers’ Compensation system is authorized by the Wyoming Constitution and provides tort immunity to employers in exchange for employees receiving a type of industrial-accident insurance).

Limited Exception

“The rights and remedies in this act for an employee including any joint employee, and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer and any joint employer making contributions required by this act, or their employees acting within the scope of their employment unless the employees intentionally act to cause physical harm or injury to the injured employee, but do not supersede any rights and remedies available to an employee and his dependents against any other person.” WYO. STAT. ANN. § 27-14-104(a) (LexisNexis 2013) (emphasis added). The Wyoming Supreme Court held the phrase “‘intentionally act to cause physical harm or injury’ equated to willful and wanton misconduct.” Bertagnolli v. Louderback, 2003 WY 50, ¶ 15, 67 P.3d 627, 632 (Wyo. 2003). Willful and wanton misconduct is defined as:

[T]he intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Id. (citation omitted) (emphasis original). The term “intentional” does not mean the co-employee must commit an overt act. The Wyoming Supreme Court describes co-employee liability as follows:

A co-employee is liable to another co-employee if the employee acts intentionally to cause physical harm or injury. To act intentionally to cause physical injury is to act with willful and wanton misconduct. . . . In the context of co-employee liability, willful and wanton conduct requires the co-employee to have 1) actual knowledge of the hazard or serious nature of the risk involved; 2) direct responsibility for the injured employee’s safety and work conditions; and 3) willful disregard of the need to act despite the awareness of the high probability that serious injury or death may result.

Hannifan v. Am. Nat’l Bank of Cheyenne, 2008 WY 65, ¶ 34 (fn. 2), 185 P.3d 679, 693 (fn. 2) (Wyo. 2008).

JURISDICTION AND LIMITATIONS OF ACTIONS

Jurisdiction

Under the Act, employers in certain categories of employment are required to carry workers’ compensation insurance through the State of Wyoming. If an employer’s business operation does not fall within of the required categories, then the employer is generally free to operate without workers’ compensation coverage, or to provide workers’ compensation coverage from a private insurance carrier. However, these employers that are not required to carry workers’ compensation insurance through the State of Wyoming may participate in the State plan at their option. All injuries and deaths occurring in Wyoming during employment with an employer participating in the State plan are subject to the Act.

Extraterritorial Jurisdiction

The Act applies to all injuries and deaths occurring outside of Wyoming in employment described under § 108(a), (d), (e), (j), (k), or (m) of the Act under the following conditions: 1) the employee at the time of the injury is working under a contract for hire made in Wyoming for employment by an employer who has a principal place of business within the state established for legitimate business-related purposes and the employment is within the United States, a United States territory, Canada or Mexico, but which is not principally localized in any other state, United States territory, Canada or Mexico; or 2) the employee at the time of the injury is working under a contract for hire made in Wyoming for employment principally localized in another state, United States territory, Canada or Mexico, the workers’ compensation of which jurisdiction does not require that the employment be covered by a workers’ compensation insurance policy issued under the laws of the that jurisdiction. Wyo. Stat. Ann. § 27-14-301(a) (LexisNexis 2013).

Time Limitation

Discovery Rule

If the injury is not readily apparent, a claim must be filed within one (1) year after discovery of the injury by the employee. See Wyo. Stat. Ann. § 27-14-503(a) (LexisNexis 2013). In such a case, claimant must exercise the kind of due diligence as would a reasonable person in discovering the compensable injury and the causal relationship to the workplace, or in pursuing a claim. See Pittman v. Wyo. Workers’ Safety & Comp. Divi., 917 P.2d 614 (Wyo. 1996).

Employee’s Injury Report

An employee must file a report of injury within 72 hours after the general nature of the jury becomes apparent, and the written report must be filed with the Division and the employer within ten (10) days after the injury becomes apparent. Wyo. Stat. Ann. § 27-14-502(a) (LexisNexis 2013). If the employee is killed, or so injured that he or she cannot file the required injury report, the reporting requirements commence when the personal representative or agent of the employee are advised of the reporting requirements by the Division or the employer. Id.

If the employee, or any dependent or personal representative, fails to fulfill his or her obligation to report the injury to the employer, and also fails to file the written injury report with the Division and the employer, a rebuttable presumption arises that the claim shall be denied. Wyo. Stat. Ann. § 27-14-502(c) (LexisNexis 2013). To overcome the presumption, the claimant must meet a clear and convincing burden of proving the late reporting did not prejudice the employer’s or the Division’s ability to investigate the claim and to monitor medical treatment. Beitel v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 991 P.2d 1242 (Wyo. 1999). Clear and convincing evidence is defined as “that kind of proof which would persuade a trier of fact that the truth of the contention is highly probable.” W.N. McMurry Const. Co. v. Community First Ins., Inc. Wyo., 160 P.3d 71 (Wyo. 2007). This requirement creates a very difficult hurdle for the claimant to meet.

If a written injury report is timely filed, it “may be amended at any time before an initial award is made in order that the employee may correctly set out the nature of his injury.” WYO. STAT. ANN. § 27-14-504 (LexisNexis 2013). However, “[a]ny amendment may be approved, disapproved or contested as if an original injury report.” Id

Employer’s Injury Report

When an employee reports and injury, the employer is required to file “an employer’s injury report with the [Division] within ten (10) days after the date on which the employer is notified of the injury and he shall mail or deliver a copy of the report to the employee. The employer’s injury report shall be certified and shall contain any information provided by rules and regulations adopted by the director. The employer shall state on the injury report that either the injury is: (i) Compensable and under the jurisdiction of this [Act]; or (ii) Not compensable under this [Act] and the reasons therefore.” Wyo. Stat. Ann. § 27-14-506 (LexisNexis 2013).

Statute of Limitations

In general, the statute of limitations is one (1) year. See Wyo. Stat. Ann. § 27-14-503(a) (LexisNexis 2013). A claim for benefits must be filed within one (1) year after the date the injury occurs, or if the injury is not readily apparent, a claim must be filed within one (1) year after discovery of the injury by the employee. Id. The injury report is not a claim for benefits. Id.

Extension of Limitation Period

For those injuries that are not immediately, or readily apparent, the Wyoming Supreme Court has held that the one (1) year statute of limitations begins to run when the injury becomes reasonably clear from the nature and seriousness of the injury to be compensable. See Aanenson v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 842 P.2d 1077 (Wyo. 1992). Typically, the one (1) year statute of limitations begins to run at the time the condition is diagnosed and communicated to the claimant. In cases where things are not as clear, the Wyoming Supreme Court has generally required the claimant to exercise the kind of due diligence as would a reasonable person in discovering the compensable injury and the causal relationship to the workplace, or in pursuing a claim. See Pittman v. Wyo. Workers’ Safety & Comp. Divi., 917 P.2d 614 (Wyo. 1996). Additionally, “[t]he right of compensation for an injury which occurs over a substantial period of time is barred unless a claim for benefits is filed within one (1) year after a diagnosis of injury is first communicated to the employee, or within three (3) years form the date of last injurious workplace exposure to the condition causing the injury, whichever occurs last, excluding injury caused by ionizing radiation to which the three (3) year limitation does not apply. If death results from ionizing radiation within one (1) year after a diagnosis of the medical condition is first communicated to the employee or if death occurs without the communication of a diagnosis to the employee, a claim shall be filed within one (1) year after the date of death” WYO. STAT. ANN. § 27-14-503(b) (LexisNexis 2013).       

Furthermore, “[i]f the injured employee is mentally incompetent or a minor, or where death results from the injury, and any of [the employee’s] dependents are mentally incompetent or minors, at the time when any right or privilege accrues under [the Act], no limitation of time provided for in [the Act] shall run so long as the mentally incompetent or minor has no guardian.” WYO. STAT. ANN. § 27-14-505 (LexisNexis 2013).

COMPENSABILITY

General Rule

In Wyoming, workers’ compensation benefits are not based on either the fault of the employee or the fault of the employer. See Fuhs v. Swenson, 131 P.2d 333 (Wyo. 1942) (The liability and right to recover created by the Act has no reference to fault generally, nor is compensation withheld because of fault of the employee except where theAct provides that an injury due solely to the culpable nelgience of the employee or of a fellow servant is not compensable.); Hamilton v. Swigart Coal Mine, 143 P.2d 203 (Wyo. 1943) (Ordinary negligence and misconduct which is thoughtless, heedless, inadvertent or of the moment or arises from error of judgment resulting in injuries does not preclude the worker form benefits.).

“Injury”Defined

“Injury” means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer’s business requires an employee’s presence and which subjects the employee to extrahazardous duties incident to the business. WYO. STAT. ANN. § 27-14-102(a)(xi) (LexisNexis 2013). Injury, however, does not include:

(A) Any illness or communicable disease unless the risk of contracting the illness or disease is increased by the nature of the employment;

(B) Injury caused by:

(I) The fact the employee is intoxicated or under the influence of a controlled substance, or both, except any prescribed drug taken as directed by an authorized health care provider. . . . ; or

(II) The employee’s willful intention to injure or kill himself or another.

(C) Injury due solely to the culpable negligence of the injured employee;

(D) Any injury sustained during travel to or from employment unless the employee is reimbursed for travel expenses or is transported by a vehicle of the employer;

(E) Any injury sustained by the prisoner during or any harm resulting from any illegal activity engaged in by prisoners held under custody;

(F) Any injury or condition preexisting at the time of employment with the employer against whom a claim is made;

(G) Any injury resulting primarily from the natural aging process or from the normal activities of day-to-day living, as established by medical evidence supported by objective findings;

(H) Any injury sustained while engaged in recreational or social events under circumstances where an employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee’s normal job duties or as specifically instructed to be performed by the employer; or

(I) Any mental injury unless it is caused by a compensable physical injury, it occurs subsequent to or simultaneous with, the physical injury and it is established by clear and convincing evidence, which shall include a diagnosis by a licensed psychiatrist or licensed clinical psychologist meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. In no event shall benefits for a compensable mental injury be paid for more than six (6) months after an injured employee’s physical injury has healed to the point that it is not reasonably expected to substantially improve.

Id.

Specific Types of Injuries

Illness or Communicable Diseases

The definition of compensable injury does not include any illness or communicable disease. However, an illness or communicable disease is compensable if the risk of contracting the illness or disease is increased by the nature of the employer. WYO. STAT. ANN. § 27-14-102(a)(xi)(A) (LexisNexis 2013).

Injuries Over a Substantial Period, Hernias and Coronary Conditions

The Wyoming Legislature has expressly subjected certain types of injuries to additional requirements in order to be compensable. For example, pursuant to Wyo. Stat. Ann. § 27-14-603, an employee who is seeking benefits for an injury that occurred over a substantial period of time, a hernia, or has a coronary condition must, in additional to the basic requirements, establish additional elements:

Injuries Over a Substantial Period of Time

An employee who is seeking benefits for an injury that occurred over a substantial period of time must prove by a preponderance of evidence that: 1) there is a direct causal connection between the condition or circumstances under which the work is performed and the injury; 2) the injury can be seen to have followed as a natural incident of the work as a result of the employment; 3) the injury can fairly be traced to the employment as a proximate cause; 4) the injury does not come from a hazard to which employees would have been equally exposed outside of the employment; and 5) the injury is incidental to the character of the business and not independent of the relation of employer and employee. WYO. STAT. ANN. § 27-14-603(a) (LexisNexis 2013).

Hernias

An employee who suffers a hernia must clearly prove: 1) the hernia is of recent origin; 2) its appearance was accompanied by pain; 3) it was immediately preceded by some accidental strain suffered in the course of the employment; and 4) it did not exist prior to the date of the alleged injury. WYO. STAT. ANN. § 27-14-603(c) (LexisNexis 2013). However, under certain circumstances, a hernia may be compensable as a second subsequent injury. See Ball v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY 128, 239 P.3d 621 (Wyo. 2010).

Coronary Conditions

Benefits for employment-related coronary conditions except those directly and solely caused by an injury, are not payable unless the employee established by competent medical authority that: 1) there is a direct causal connection between the condition under which the work was performed and the cardiac condition; 2) the causative exertion occurs during the actual period of employment stress clearly unusual to or abnormal for employees in that particular employment, irrespective of whether the employment stress is unusual to or abnormal for the individual employee; and 3) the acute symptoms of the cardiac condition are clearly manifested not later than four (4) hours after the alleged causative exertion. WYO. STAT. ANN. § 27-14-603(b) (LexisNexis 2013).

Psychological Injury

The definition of compensable injury does not include any psychological injuries unless it is caused by a compensable physical injury, it occurs subsequent to, or simultaneously with, the physical injury, and it is established by clear and convincing evidence, including a diagnosis by a licensed psychiatrist or licensed clinical psychologist, meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. WYO. STAT. ANN. § 27-14-102(a)(xi)(J) (LexisNexis 2013); Pinkerton v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 939 P.2d 250 (Wyo. 1997).

Second Compensable Injury

A second compensable injury occurs when an initial compensable injury ripens into a condition requiring additional medical attention. See Carabajal v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 119 P.3d 947, 951 (Wyo. 2005). The employee can receive benefits for the second condition if he or she proves the second condition was caused by the original injury.

Pre-Existing Injury

A pre-existing injury may be covered and compensable if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. See Lindbloom v. Teton Intern., 684 P.2d 1388 (Wyo. 1984). A pre-existing condition or injury is compensable if the employee suffers an “acute exacerbation” of the pre-existing condition or if the employee suffers a “material aggravation” of the pre-existing condition.

EXCLUSIONS AND DEFENSES

Course of Employment

Not Engaged in Furtherance of Employer’s Business

An employee who is on a work-related trip for which he is reimbursed, but takes a side trip, is no longer acting within the scope of his employment and is therefore not entitled to worker’s compensation benefits if an injury should occur. An employee’s purpose is purely personal where the alternate route is longer than the direct route, there is no business purpose for taking the alternate route, and taking the alternate route provides no benefit to the employer, so when pursuing that personal purpose, he acts outside the scope of his employment. Shelest v. State, ex rel., Wyo. Workers' Safety & Comp. Div, 2010 WY 3 (Wyo. Jan. 11, 2010).

Culpable Negligence

The definition of compensable injury does not include any injury due solely to the culpable negligence of the injured employee. Wyo. Stat. Ann. § 27-14-102(a)(xi)(C) (LexisNexis 2013). While this language seems to suggest that, if the injury is the employee’s fault, the injury is not compensable, this is not the case because Wyoming is not a fault based workers’ compensation system. Instead, the Wyoming Supreme Court has held the term “culpable negligence” is recognized as “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” Perry v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 134 P.3d 1242 (Wyo. 2006).

Traveling/Commuting Employees

The definition of compensable injury does not include any injury sustained traveling to or from the place of employment unless the employee is to be reimbursed for travel expenses or is traveling in the employer’s vehicle. WYO. STAT. ANN. § 27-14-102(a)(xi)(D) (LexisNexis 2013).

Off Duty Injuries

In general, the definition of compensable injury does not include off duty injuries. Nonetheless, if the employee is required to engage in an activity such as physical fitness as a condition of employment, an injury suffered while engaging in this off duty activity may be compensable. See WYO. STAT. ANN. § 27-14-102(a)(xi) (LexisNexis 2013); Cronk v. City of Cody, 897 P.2d 476 (Wyo. 1995). Additionally, a covered injury does not include any injury suffered while engaged in recreational or social events under circumstances where an employee is under no duty to attend, and where the injury did not result from the performance of tasks related to the employee’s normal job duties, or as specifically instructed to be performed by the employer. WYO. STAT. ANN. § 27-14-102(a)(xi)(H) (LexisNexis 2013).

Premises Rule

The Wyoming Supreme Court has adopted its own version of the “premise rule.” Archuleta v. Carbon County School Dist. No. 1, 787 P.2d 91, 93 (Wyo. 1990). The “premise rule” is that “injuries to a worker with both fixed hours and a fixed place of employment [are] presumptively compensable if the injuries occur on the employer’s premises while going to and from work before or after working hours.” Id. The premise rule is a carved out exception to the “coming and going rule.”

Related to Employment

The definition of compensable injury does not include any injury resulting primarily from the natural aging process or form the normal activities of day-to-day living, as established by medical evidence supported by objective findings. Wyo. Stat. Ann. § 27-14-102(a)(xi)(F) (LexisNexis 2013). The phrase “normal activities of day-to-day living” has been defined as those activities which an employer does not have the right to control. Sellers v. State ex rel. Wyo. Workers’ Comp. Div., 979 P.2d 959 (Wyo. 1999). In Yenne-Tully v. State ex rel. Wyo. Workers’ Safety & Comp. Div., the Wyoming Supreme Court held:

[T]he phrase “day-to-day living” . . . describes those activities that a worker’s employer does not have the right to control. Common actions such as getting out of a car or bending to pick up a pen are not considered activities of day-to-day living when performed in the course of employment. Recreational activities, performed outside the workplace, or household chores are beyond the control of the employer and would be characterized as day-to-day activities.

48 P.3d 1057, 1062-1063 (Wyo. 2002). It has further explained that:

[W]hen an employee is engaged in activities over which the employer is vested with the right of control, these cannot be normal activities of day-to-day living because the employer has no such right with respect to the normal activities of day-to-day living. Consequently, the statutory phrase would allude to those activities accomplished within the workplace over which the employer is not vested with any right of control.

State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Sparks, 973 P.2d 507, 511 (Wyo. 1999). The right of control means the employer has the right to control what the employee does and also how the employee does the activities. Id.

Intentionally Self-Inflicted Injury or Death

The definition of compensable injury does not include an injury caused by the employee’s willful intention to injure or kill himself or another. WYO. STAT. ANN. § 27-14-201(a)(xi)(B)(II) (LexisNexis 2013).

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

The definition of compensable injury does not include an injury caused by the fact that the employee is intoxicated or under the influence of a controlled substance, or both, except any prescribed drug taken as directed by an authorized health care provider. WYO. STAT. ANN. § 27-14-201(a)(xi)(B)(I) (LexisNexis 2013). In short, if the intoxication is the cause of the injury, the injury is not compensable. However, if the individual is intoxicated, but the intoxication is not the cause of the injury, the injury would, most likely be covered.

Employee’s Violation of Employment Rules

An employee who suffers an otherwise compensable injury can be denied benefits if the employee knowingly violated certain rules of the employer. For example, a workers’ compensation claimant can be found to have acted outside the scope of employment by violating a work restriction when the rule against performing a certain task has been clearly communicated to the claimant and the employer has not knowingly accepted the benefit from the claimant’s violation of the rule. See Perry v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 134 P.3d 1242 (Wyo. 2006). The restriction does not inappropriately incorporate fault in violation of the Act because employers are free to delineate the scope of the employment.

Personal Animosity

The definition of compensable injury does not include an injury caused by: “The employee’s willful intention to injure or kill himself or another.” WYO. STAT. ANN. § 27-14-102 (a)(xi(B)(II) (LexisNexis 2013). An employee who injured a co-employee “was not performing the kind of work that he was hired to perform when he intentionally placed [the co-employee] in a headlock.” The employee was not acting within the scope of his employment when he engaged in horseplay. While the employee was on the premises for work-related activities, he was not employed to engage in horseplay and the horseplay was not actuated by any purpose to serve his employer but was motivated solely by personal reasons. Worman v. BP America Production Co., 2011 WY 54 (Wyo. Mar. 25, 2011).

Hostile Attacks

The Wyoming Workers’ Compensation Act does not address whether compensation will be paid if the injury or death occurs solely as a result of military activities, whether from the United States, a foreign power, or as a result of sabotage.

Quitting

In the absence of any showing that the employer was to compensate an employee for his or her return trip home after quitting, the Wyoming Supreme Court has held that the employee is not acting within the course and scope of his or her employment for the purposes of determining compensability of an injury that occurred during the return trip home after the employee quit his or her job with the employer. See Claims of Naylor, 723 P.2d 1237, 1241-1243 (Wyo. 1986).

Retirement

A retired employee is subject to the general worker’s compensation statutes of limitations for claiming a work-related injury after his or her retirement.The Wyoming Workers’ Compensation Act lacks any “retirement presumption” and any provision to allow for the end of or denial of benefits if the employee retires during the course of a case.

BENEFITS

Total Disability

Temporary Total Disability

Temporary Total Disability is a substitute for wages lost during the employee’s healing period after the injury. It is defined under the Act as:

“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 or 27-14-406.

WYO. STAT. ANN. § 27-14-102(a)(xviii) (LexisNexis 2013).

Temporary total disability benefits are paid at two-thirds (2/3) of the claimant’s actual monthly earnings at the time of the injury, but are not to exceed the statewide average monthly wage for the year preceding the quarter in which the injury occurred. WYO. STAT. ANN. § 27-14-403(c) (LexisNexis 2013). The Director of the Division periodically publishes the average statewide wage, and it is available in the internet at http://wydoe.state.wy.us. The benefits are paid around the 15th and 30th of each month per statute. WYO. STAT. ANN. § 27-14-404(c) (LexisNexis 2013).

Temporary total disability benefits are not paid for the first three (3) days of a claimant’s disability unless the disability extends past eight days. WYO. STAT. ANN. § 27-14-404(d) (LexisNexis 2014). The day of the injury is counted as a day of disability unless the claimant received full wages that day. Id. An employee may not be forced to use sick leave prior to applying for, or instead of, temporary total disability benefits. Id.

If the injury is the result of a one-time event, temporary total disability benefits are generally paid for a maximum of 24 months, or until the claimant reaches ascertainable loss or is capable of returning to work. WYO. STAT. ANN. § 27-14-404(a), (c) (LexisNexis 2013). Wyoming statute reads:

(c) Payment under subsection (a) of this section shall cease prior to expiration of the twenty-four (24) month maximum period specified under subsection (a) of this section if:

(i) Recovery is complete to the extent that the earning power of the employee at a gainful occupation for which he is reasonably suited by experience or training is substantially restored; or

(ii) The employee has an ascertainable loss and qualifies for benefits under W.S. 27-14-405 or 27-14-406.

WYO. STAT. ANN. § 27-14-404(c) (LexisNexis 2013).

The Division may extend the payment of temporary total disability benefits beyond 24 months if required by extraordinary circumstances. These benefits are called extended temporary total disability benefits. The award of such benefits is subject to review by a hearing examiner only for abuse of discretion. WYO. STAT. ANN. § 27-14-404(a) (LexisNexis 2013). The regulations provide insight as to when the Division would approve such extended benefits:

(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

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

Wyo. Admin. Code Ch. 7 § 2(b).

Permanent Total Disability

Permanent total disability is defined as “the loss of use of the body as a whole or any permanent injury certified under W.S. § 27-14-406 which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training.” WYO. STAT. ANN. § 27-14-402(a)(xvi) (LexisNexis 2013). Permanent total disability must be certified by a physician or surgeon. WYO. STAT. ANN. § 27-14-406(a) (LexisNexis 2013). Permanent total disability does not provide lifetime benefits; benefits are to be paid for 80 months in an amount determined under WYO. STAT. ANN. § 27-14-403(c). That monthly benefit calculation is determined exactly the same as for permanent partial disability benefits:

(i) For those employees whose actual monthly earnings are less than seventy-three percent (73%) of the statewide average monthly wage, the award shall be ninety-two percent (92%) or the injured employee’s actual monthly earnings;

(ii) For those employees whose actual monthly earnings are equal to or greater than seventy-three (73%) percent of the statewide average monthly wage, but less than the statewide monthly wage, the award shall be two-thirds (2/3) of the statewide average monthly wage;

(iii) For those employees whose actual monthly earnings are greater than or equal to the statewide average monthly wage, the award shall be two-thirds (2/3) of the employee’s actual monthly earnings, but the award shall be capped at and shall not exceed the statewide average monthly wage.

WYO. STAT. ANN. § 27-14-406(a) (LexisNexis 2013).

The award is reduced for any amount previously paid for permanent partial disability for the same injury. A claimant cannot recover a permanent total disability award while receiving benefits for temporary total disability or permanent partial disability. WYO. STAT. ANN. § 27-14-406(a) (LexisNexis 2013

Permanent total disability awards are available as lump sums pursuant to WYO. STAT. ANN. § 27-14-403(f). If a lump sum is elected, then the total amount paid to the claimant will be reduced to account for the present value of the award. Wyo. Admin. Code Ch. 7 § 2(c). The State Treasurer’s Office sets the discount rate. An award of permanent total disability benefits often causes a nearly dollar for dollar reduction in a claimant’s social security disability benefits.

A vocational evaluation is important to the determination as to whether the claimant is unable to return to work at gainful employment for which he is suited. The permanent total disability standard is high, and must be distinguished from the different standards under Social Security laws and many disability insurance policies.

Partial Disability

Impairment Rating

An injured employee’s level of impairment must be rated by a licensed physician using the most recent edition of the American Medical Association’s guide to the evaluation of permanent impairment. WYO. STAT. ANN. § 27-14-405(g) (LexisNexis 2013).

If the percentage of physical impairment is disputed, the Division shall obtain a second opinion. WYO. STAT. ANN. § 27-14-405(m). If the opinions conflict, the Division shall determine the physical impairment award upon consideration of the initial and secondary opinion. Id.

Permanent Partial Disability

An injured employee who has not suffered total disability, may apply for permanent partial disability benefits pursuant to Wyo. Stat. § 27-14-405. To qualify for such benefits, the employee’s impairment must be rated by a licensed physician as described above. If the percentage of impairment is disputed, the Division will obtain a second opinion and, if the ratings conflict, determine the award based on both opinion

To receive a permanent partial disability award, the employee’s application must demonstrate that he or she is unable to return to “employment at a wage that is at least ninety-five (95%) of the monthly gross earnings the employee was earning at the time of injury” and that the employee has actively sought work that is suitable for the employee’s health, education, training, and experience. Wyo. Stat. § 27-14-405(h)(i) –(iii). The application for permanent partial disability must be filed “not before three (3) months after the date of ascertainable loss or three (3) months before the last scheduled impairment payment, whichever occurs later, but in no event later than one (1) year following the later date.” Wyo. Stat. § 27-14-405 (h)(ii).

Vocational Rehabilitation

If an employee received a permanent impairment rating and award, or such a rating or award is reasonably expected, and the worker has not yet received a permanent partial disability award, the employee may elect to receive a vocational rehabilitation benefit instead.

The standard for eligibility for vocational rehabilitation benefits is fairly low. If the claimant’s injury prevents them from returning to any occupation for which the claimant had previous training or experience, and was gainfully employed at for any time during a three-year period prior to the injury, the claimant is generally eligible for vocational benefits, so long as he/she has not already received a prior award of vocational disability for the same injury. WYO. STAT. ANN. § 27-14-408(a)(ii) (LexisNexis 2013). The claimant also cannot have received a permanent partial disability award. The claimant must elect in writing to receive vocational rehabilitation benefits instead of a permanent partial disability award. WYO. STAT. ANN. § 27-14-408(a)(iv) (LexisNexis 2013).

Once eligibility is determined, the Division of Vocational Rehabilitation outlines the benefits available and the procedures to be followed. WYO. STAT. ANN. § 27-14-408(b), (c), (d) (LexisNexis 2013). The Division of Vocational Rehabilitation then cooperates with the claimant to develop an individualized rehabilitation plan that:

(i) Is reasonably contemplated to restore the claimant’s ability to return to former employment, a related occupation or suitable other employment, which to the extent reasonably possible, has a comparable earnings level to the claimant’s pre-injury earnings;

(ii) Shall not exceed four (4) years or a total cost of thirty thousand dollars ($30,000.00) unless extended or increased for extenuating circumstances as defined by the Division’s rules and regulations;

(iii) Is the least costly feasible plan consistent with the rehabilitation goal established pursuant to paragraph (e)(i) of this section; and

(iv) Includes provisions for living expenses during the rehabilitation plan if the employee is not receiving payments for living expenses from any other government benefit program including workers’ compensation, and other sources of household income are insufficient to pay minimally necessary living expenses, provided the vocational rehabilitation program is pursued as rapidly as possible.

WYO. STAT. ANN. § 27-14-408(f) (LexisNexis 2013).

Employer Job Offer

An employer may make a written offer of temporary light duty work to an employee receiving temporary total disability benefits. WYO. STAT. ANN. § 27-14-404(j) (LexisNexis 2013). The offer must be a bona fide offer on a form supplied by the division, and must state with specificity the “proposed hours of employment, starting date, wage and physical or other functional capacity requirements of the light duty work.” Id. If the employee accepts the offer, the temporary total disability award ceases immediately and the employee may receive a temporary light duty award subject to certain statutory conditions.

Vocational Expert

A vocational evaluation is typically required to determine whether a claimant is capable of earning 95% or better of the claimant’s pre-injury wage. A vocational evaluation considers the claimant’s work restrictions, intelligence, training and experience, education, work history, and efforts to become re-employed. Then, a labor market survey is conducted to determine whether the claimant is capable of becoming reemployed at 95% or better of the pre-employment wage. An evaluator may also scrutinize the claimant’s efforts seeking reemployment. The evaluator should only take into consideration those jobs which are available within the state.

Amputation or Loss of Use

The Division pays for artificial replacements of body parts when necessary due to amputation. WYO. STAT. ANN. § 27-14-402 (LexisNexis 2013). The Division also pays for hearing aids, spinal braces, broken eyeglasses, and false teeth, if necessitated by the work injury. Id. Artificial disks for spinal injuries are also being approved as necessary medical care.

Disfigurement/Scarring

An employee who incurs permanent disfiguration due to an injury to the face or head which affects the employee’s earning capacity is entitled to receive an additional physical impairment award, in proportion to the degree of disfigurement, not to exceed six months of monthly compensation. WYO. STAT. ANN. § 27-14-405(k) (LexisNexis 2013). Any previous disfigurement to the face or head should be considered in authorizing the award. Id.

Loss of Sight

An employee who loses sight due to a work injury may receive payment for artificial seeing aids.

Loss of Hearing

An employee who loses hearing due to a work injury may receive payment for artificial aids to hearing. WYO. STAT. ANN. § 27-14-402 (LexisNexis 2013).

Penalties

If an injured employee knowingly engages in unsanitary or injurious practices, which tend to imperil or retard his recovery, he forfeits all right to compensation under the act. Forfeiture shall be determined by the hearing examiner upon application by the division or the employer.

An employer who does not apply for coverage or obtained coverage but failed, neglected or refused to make any payments required within thirty (30) days of the date due, is held liable to the state for the same amount of the award owed to an injured employee for worker’s compensation benefits. Wyo. Stat. § 27-14-203(a).

If an employer fails to pay premiums on or before the date due, the employer then owes two percent (2%) interest per month or any fractional portion thereof on the premiums from the due date until the Division receives payment for the premiums and accrued interest. Wyo. Stat. § 27-14-203(c). If premiums are not paid within thirty (30) days of the date due and the Division has provided notice to the employer, the attorney general may immediately bring suit for the collection of delinquent payments, including interest and penalties. Wyo. Stat. § 27-14-203(d). If the suit is successful, “the judgment shall be for double the amount of the payroll payment provided by this act together with costs.” Id. Instead, the Division may file a lien with the county clerk of the county in which the employer’s principal place of business is located, upon the employer’s real and personal property, which “is in effect from the time of filing and covers all property of the employer in any county in which filed.” Wyo. Stat. § 27-14-203)(e).

Finally, the Worker’s Compensation Act does not limit the right of an employee or his dependents to take action against an employer for injuries received when at a time when the employer has not qualified for coverage under the act or has failed to pay the premiums on the injured employee’s earnings within thirty (30) days of the date due. Wyo. Stat. § 37-14-104.

Costs

The Division will reimburse the claimant for the necessary travel to obtain the closest available medical care. Travel is generally compensated at the rates provided for state employees pursuant to the rules and regulations of the State Auditor. Wyo. Admin. Code Ch. 7 § 3(a)(iv). The Division pays for per diem and mileage expenses generally at the rates paid to Wyoming State employees. WYO. STAT. ANN. § 27-14-401(d) (LexisNexis 2013); Wyo. Admin. Code Ch. 7 § 3(a)(iv). If ambulance service is necessary the division will also cover such costs. These charges are paid pursuant to a fee schedule for medical care in the regulations.

The Division will not pay for travel expenses for travel of less than 10 miles one way unless by ambulance, or for travel other than that necessary to obtain the closest available medical care, with some exceptions. WYO. STAT. ANN. § 27-14-401(d)(i), (ii) (LexisNexis 2013).

Counsel Fees

The Division generally pays for claimants’ legal representation costs. In a contested case where the compensability of the injury is at issue, a prevailing employer’s attorney’s fees shall also be paid by the Division. This award does not affect the employer’s experience rating. WYO. STAT. ANN. §27-14-602(d) (LexisNexis 2013). The amount of the award for an employer’s attorney fees is limited to the amount of benefits in dispute. This provides an incentive for the employer to fight a questionable case in a contested case hearing.

Appellate courts have the authority to order the Division to pay the attorney’s fees for the claimant’s attorney and also for the employer if the issue is compensability of the injury. WYO. STAT. ANN. § 27-14-615 (LexisNexis 2013).

Death Benefits

If a worker dies as a result of work injury, all disability awards cease and the surviving spouse or surviving dependent children receive a specified monthly benefit for 54 months. Wight v. State ex rel Wyo. Workers’ Comp. Div., 952 P.2d 209 (Wyo. 1998). Alternatively, if the injured worker dies from causes other than the work injury while benefits are being paid, the balance of the award can be paid to the surviving spouse, dependent children or dependent parents.

Burial expenses are paid up to $5,000 and up to an additional $5,000 with proof of expenses incurred in connection to the worker’s death.

Widow/Widower

Surviving spouses can also apply for, and receive extended death benefits, which are evaluated and paid similarly to extended permanent total disability benefits. WYO. STAT. ANN. § 27-14-403(d)(iv) (LexisNexis 2013).

Death Benefits/Children

Children of a claimant who become permanently totally disabled or are killed in a work related accident are paid a monthly benefit of $150 per month. This amount is adjusted for inflation annually based on the consumer price index. A child is defined broadly in WYO. STAT. ANN. § 27-14-102(a)(iii):

“Child” means any unmarried minor or physically or mentally incapacitated individual receiving court ordered support or substantially all of his financial support from the employee at the time of injury or death of the employee and includes an adopted child, stepchild, posthumous child or acknowledged illegitimate child but does not include a parent or spouse of the employee.

Awards to a child are to be paid to the legal guardian or conservator of the child if one exists, or as the Division determines to be in the best interests of the child if there is no legal guardian or conservator. WYO. STAT. ANN. § 27-14-403(c)(iv) (LexisNexis 2013).

If there is no surviving spouse, the decedent’s dependents receive the balance of the award. Each surviving dependent child receives a share of the award in proportion to number of months until that child reaches the age of majority.

Death Benefits/Parents and Siblings

In some cases the surviving parents can become the beneficiary of the death benefit. If there is no surviving spouse, or the spouse remarries or dies, and there are no dependent children, the balance of the award shall be paid to the surviving parent of the employee “if the parent received substantially all of his financial support from the employee at the time of the injury.” WYO. STAT. ANN. § 27-14-403(d)(iii) (LexisNexis 2013).

Death Benefits/Amounts of Benefits

The monthly award for death benefits is calculated per statute as follows:

(i) For employees whose actual monthly earnings are less than seventy-three percent (73%) of the statewide average monthly wage, the award shall be ninety-two (92%) of the injured employee’s actual monthly earnings;

(ii) For those employees whose actual monthly earnings are equal to or greater than seventy-three (73%) of the statewide average monthly wage, but less than the statewide average monthly wage, the award shall be two-thirds (2/3) of the statewide average monthly wage;

(iii) For those employees whose actual monthly earnings are greater than or equal to the statewide average monthly wage, the award shall be two-thirds (2/3) of the employee’s actual monthly earnings, but the award shall be capped at and shall not exceed the statewide average monthly wage;

(iv) In the case of death due to work related causes, and if the award computed under paragraphs (i), (ii), or (iii) of this subsection is less than eighty percent (80%) of the statewide average monthly wage, the award shall be adjusted to an amount not less than eighty percent (80%) of the statewide average monthly wage.

WYO. STAT. ANN. § 27-14-403(c) (LexisNexis 2013).

Medical Benefits

The Claimant is entitled to those medical benefits directly related to the work injury. The Division pays these expenses pursuant to a fee schedule that is adopted and periodically modified by the Division in its administrative rules. See Wyo. Admin. Code Ch. 9. These fees are charged against an employer’s account with the Division and affect the employer’s experience rating and premiums, like nearly all other benefits. The compensation provided to health care providers is reduced based on the procedure and the fee schedule published in the rules and regulations. Id. The Division pays for most normal medical care, but experimental care is not authorized or paid for under the Act, with only very limited exceptions. See Wyo. Admin. Code Ch. 9, §10. These treatments are paid only when preapproved by the Division. Id.

Refusal of Medical Treatment

Pursuant to WYO. STAT. ANN. § 27-14-407, an employee forfeits all right to compensation under the Act if he refuses to submit to medical or surgical treatment which is reasonably necessary to promote his recovery.

SUBROGATION OR CREDIT

General Rule

If an employee, who is covered by the Wyoming Workers’ Compensation Act, suffers an injury and a third-party is legally liable to pay damages, the employee, if engaged in work for his employer at the time of the injury, can still receive workers’ compensation benefits. See WYO. STAT. ANN. § 27-14-105(a) (LexisNexis 2013). If, however, the employee recovers from the third party or a co-employee in any manner including judgment, compromise, settlement or release, the state is entitled to be reimbursed for all payments made to or on behalf of the employee. Id. Payments recovered by the stated under this act cannot exceed one-third (⅓) of the total proceeds of the recovery. Id. Third parties are also permitted to reimburse the worker's compensation account directly for medical or temporary total disability costs without prejudice prior to any judgment, settlement or release. WYO. STAT. ANN. § 27-14-105(g) (LexisNexis 2013).

Attorney’s Fee

Any recovery by the state shall be reduced pro rata for attorney fees and costs in the same proportion as the employee is liable for fees and costs. All money received by the state under this section shall be credited to the workers’ compensation account and considered in computing the employer's experience rating. WYO. STAT. ANN. § 27-14-105(a) (LexisNexis 2013).

Motor Vehicle Accidents

The Division is entitled to reimbursement from a third-party lawsuit involving a motor vehicle accident, but there is no separate subrogation statute addressing this specific issue. All subrogation is governed by WYO. STAT. ANN. § 27-14-105(g).

Health Benefits

Unless the circumstances give rise to a third-party lawsuit, the initial payment of health benefits for a workers’ compensation claim is not recoverable by way of subrogation.

Credits

Not applicable

ATTORNEYS

Certifying Organization

Upon request, the hearing examiner may appoint an attorney to represent the employee and may allow the appointed attorney a reasonable fee for his or her services at the conclusion of the proceeding. WYO. STAT. ANN. § 27-14-602 (LexisNexis 2013). In any contested case where the issue is the compensability of an injury, a prevailing employer's attorney fees shall also be paid. Id. Attorney's fees allowed by the presiding officer shall be at an hourly rate of one hundred twenty dollars ($120.00) per hour. Wyo. Admin. Code AH GEN Ch. 5 § 3(a). No fee shall be awarded in any case in which the hearing examiner determines the claim or objection to be frivolous and without legal or factual justification. WYO. STAT. ANN. § 27-14-602 (LexisNexis 2013).

Similarly, in the event of an appeal of the administrative decision, the district court may appoint an attorney to represent the employee during proceedings in the district court and appeal to the Wyoming Supreme Court. WYO. STAT. ANN. § 27-14-615 (LexisNexis 2013). In any appeal where the issue is the compensability of an injury, a prevailing employer's attorney fees shall also be paid. Id. An award of attorney's fees shall be for a reasonable number of hours and shall not exceed the benefits at issue in the appeal.

Required Documentation

Any application for attorney's fees shall be supported by a verified itemization of all services provided. WYO. STAT. ANN. § 27-14-602 (LexisNexis 2013).

Additional Information

None.

CLAIMS PROFESSIONAL

Claim analysts are generally considered the claims professionals for the Division. Claims analysts are employees of the Division. Analysts receive the initial injury report from the claimant and make the initial determination of the Division as to whether the injury is compensable under the Act. In contested claims, analysts are often called upon to testify to explain their determination to a hearing officer.

LITIGATION AND APPEAL

Procedure

All worker compensation benefit claims should be submitted to the division. Claimants are given the opportunity to be heard by the Division before it determines if the injury is compensable under the Act. See WYO. STAT. ANN. § 27-14-601. A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence, including that the claimed injury arose out of and in the course of employment. Clark v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2001 WY 132, ¶ 19, 36 P.3d 1145, ¶ 19 (Wyo.2001).

A claim becomes “contested” if the Division determines or the employer believes the claimant’s injury or death is not compensable under the Act. See WYO. STAT. ANN. § 27-14-601 (LexisNexis 2013). Once a claim becomes contested, claimants or employer, whomever disputed the Division’s determination, files a written petition/request for hearing with the Division. The Division then refers the contested case to either the Office of Administrative Hearings (“OAH”) or the Workers' Compensation Medical Commission (“Medical Commission”). The OAH and the Medical Commission are separate operating administrative agencies and derive their powers from the Wyoming Administrative Procedure Act. WYO. STAT. ANN. § 9-2-1704(d) (LexisNexis 2013). OAH is run by the Director of OAH, who is appointed by the governor. WYO. STAT. ANN. § 9-2-2201 (LexisNexis 2013). Hearings are presided over by Worker’s Compensation Hearing Examiners. Hearing examiners are appointed by the Director. Id. Hearing examiners, including the Director, must be members of the Wyoming state bar. WYO. STAT. ANN. § 27-14-602 (LexisNexis 2013). The Director serves as the administrative head and the chief hearing examiner.

Upon agreement of all the parties to a case, the Division may also refer a medically contested case or issues of a case to the Medical Commission for hearing and final decision of all issues in the case. Wyo. Admin. Code AH GEN Ch. 5 § 5(a)-(b). The medical commission consists of eleven (11) health care providers: seven (7) licensed physicians and four (4) health care providers, appointed by the Governor. WYO. STAT. ANN. § 27-14-616 (LexisNexis 2013). One member is elected by commission members as chairman and one as vice-chairman. Id. The Governor may also appoint up to eleven (11) additional health care providers as associate members of the commission whose function is limited to serving as members of individual medical hearing panels. Id.

In all workers' compensation contested cases, the parties file all documents, pleadings and motions with the Division, with true and complete copies of the particular document, pleading or motion properly served on all other parties or their attorneys, and the OAH or the Medical Commission in accordance with the Wyoming Rules of Civil Procedure. Wyo. Admin. Code Ch. 1 § 5. Once the examiner receives the proper documentation, a hearing is held in accordance with the Wyoming Administrative Procedure Act. Id. In such hearings, claimants are generally represented by private attorneys who must be authorized to practice in Wyoming while the division is represented by the Attorney General of the State of Wyoming. WYO. STAT. ANN. § 27-14-602 (LexisNexis 2013). At the hearing, witnesses may be presented. Hearing examiners then render a written decision within fifteen (15) days of the close of the hearing. Id. Hearing examiners cannot charge attorney fees or costs. Id.

The hearing examiner has exclusive jurisdiction to make the final administrative determination of the validity and amount of compensation payable under the Act. Wyo. Admin. Code AH GEN Ch. 5. Within ten (10) days of the date of the final decision, any party may file a motion for reconsideration or rehearing for any of the reasons identified in Rule 59(a) of the Wyoming Rules of Civil Procedure. Id. OAH then issues a written order in response to the motion. Id.

Appeal

Any party, including the employee, employer or Division, aggrieved or adversely affected by a final decision in a contested case is entitled to judicial review in the appropriate district court pursuant to WYO. STAT. ANN. § 16-3-114 and Rule 12 of the Wyoming Rules of Appellate Procedure. Wyo. Admin. Code Ch. 1 § 5. The appellant must file a transcript of the testimony and all other evidence offered at the hearing. Id. Appeals from the Wyoming district court are then filed with the Wyoming Supreme Court.

Judicial review of agency action is limited to “a determination of the matters specified in Wyo. Stat. § 16-3-114(c).” WYO.R.APP.P. 12.09 (LexisNexis 2008); Hoff v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2002 WY 129, ¶ 5, 53 P.3d 107, 109 (Wyo. 2002). WYO. STAT. ANN. § 16-3-114(c) reads:

The reviewing court shall:

. . .

(ii) Hold unlawful and set aside action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege, or immunity;

(C) In excess of statutory jurisdiction, authority, or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

The substantial evidence test is used to evaluate rulings arising from contested case hearings under the Wyoming APA. Newman v. State ex rel. Workers’ Safety & Comp. Div., 2002 WY 91, ¶ 22, 49 P.3d 163, 168 (Wyo. 2002); Brierley v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2002 WY 121, ¶ 9, 52 P.3d 564, 568 (Wyo. 2002) (citing Newman, ¶ 22); Hicks v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2005 WY 11, ¶ 15, 105 P.3d 462, 468 (Wyo. 2005). “[R]eversal of an agency finding or action is required if it is ‘not supported by substantial evidence.’” Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 21, 188 P.3d 544, 561 (Wyo. 2008). Substantial evidence is defined as “relevant evidence that a reasonable mind might accept in support of the agency’s conclusions.” Padilla v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2004 WY 10, ¶ 5, 84 P.3d 960, 962 (Wyo. 2004); Dale, ¶ 11. Substantial evidence is more than a scintilla of evidence. Padilla, ¶ 5.

[I]n conducting a substantial evidence review of the record, the deference that normally is accorded the findings of fact by a trial court is extended to the administrative agency, and we do not adjust the decision of the agency unless it is clearly contrary to the overwhelming weight of the evidence on record. This is so because, in such an instance, the administrative body is the trier of fact and has the duty to weigh the evidence and determine the credibility of witnesses.

Dale, ¶ 21. “Importantly, [the Court’s] review of any particular decision turns not on whether [it] agree[s] with the outcome, but on whether the agency could reasonably conclude as it did, based on all the evidence before it.” Id. at ¶ 22.

When the burdened party prevailed before the agency, [the Court] will determine if substantial evidence exists to support the finding for the party by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency’s conclusions. If the hearing examiner determines that the burdened party failed to meet his burden of proof, [the Court] will decide whether there is substantial evidence to support the agency’s decision to reject the evidence offered by the burdened party by considering whether that conclusion is contrary to the overwhelming weight of the evidence in the record as a whole. See, Wyo. Consumer Group v. Public Serv. Comm’n of Wyo., 882 P.2d 858, 860-61 (Wyo. 1994); Spiegel, 549 P.2d at 1178 (discussing the definition of substantial evidence as “contrary to the overwhelming weight of the evidence”).

Id.

“The arbitrary and capricious standard remains a ‘safety net’ to catch agency action which prejudices a party’s substantial rights or which may be contrary to the other [Wyoming APA] review standards yet is not easily categorized or fit to any one particularized standard.” Id. at ¶ 23. The arbitrary and capricious standard is “not meant to apply to true evidentiary questions.” Id.

Instead, the arbitrary and capricious standard will apply if the hearing examiner refused to admit testimony or documentary exhibits that were clearly admissible or failed to provide appropriate findings of fact or conclusions of law. This listing is demonstrative and not intended as an inclusive catalog of all possible circumstances.

Id.

The Court will not substitute its own judgment for that of the administrative agency when substantial evidence supports the decision. Kuntz-Dexter v. Wyo. Workers’ Safety & Comp. Div., 2002 WY 101, 49 P.3d 190 (Wyo. 2002). To survive judicial review, the record of a contested agency action must contain sufficient factual findings to permit a court to follow the agency’s reasoning from the evidentiary facts on record to its eventual legal conclusions. Wyo. Dept. of Trans. v. Legarda, 2003 WY 130, 77 P.3d 708 (Wyo. 2003). If the Court finds that the agency’s decision is supported by substantial evidence, the Court only determines whether the agency’s conclusions are in accordance with the law. Matter of Duran, 930 P.2d 1250, 1253 (Wyo. 1997). Conclusions of law made by a hearing examiner are affirmed if they are in accord with the law. Sinclair Oil Corp. v. Wyo. PSC, 2003 WY 22, ¶ 7, 63 P. 3d 887, 892 (Wyo. 2003). A hearing examiner’s or an agency’s conclusions of law are not afforded any special deference. State ex rel., Wyo. Workers’ Comp. Div. v. Barker, 978 P.2d 1156, 1159 (Wyo. 1999). When the agency has failed to properly invoke and apply the correct rule of law, the Court must correct the agency’s error. Sinclair, ¶ 7. The reviewing court “will defer to an administrative agency’s construction of its rules unless that construction is clearly erroneous or inconsistent with the plain meaning of the rules.” Pinther v. State ex re. Wyo. Dept. of Admin. & Info., 866 P.2d 1300, 1302 (Wyo. 1994) (citations omitted)

SETTLEMENT

Mandatory Mediation

There are no mandatory mediation requirements under the Wyoming Workers’ Compensation Act.

Voluntary Mediation

Parties may voluntarily request to participate in non-binding settlement conferences or other alternative dispute resolution. In the event this occurs, the OAH requires that, no later than fifteen (15) days after the conclusion of settlement or other alternative dispute resolution proceedings, the presiding officer notifies the Division, in writing, and with proper notice to all parties, whether settlement appears to have resulted. Wyo. Admin. Code AH GEN Ch. 5. The presiding officer also cannot disclose the terms of any settlement. Wyo. Admin. Code AH GEN Ch. 5.

Informal Settlement Conferences

See Voluntary Mediation above.       

Compromise and Release

Upon good and sufficient cause, the Administrator or designee(s) of the Division may waive, compromise or otherwise settle any claim for benefits. Wyo. Admin. Code Ch. 5 § 5.

INSURANCE

General Rule

Wyoming’s worker's compensation program is basically self-supporting. WYO. STAT. ANN. § 27-14-201 (LexisNexis 2013). Employers affected by the Act are divided by the Division into classes, these classes then help determine the appropriate rate for each employer. Id. Employer’s rates may be readjusted annually as the Division determines. Any employer may contest his classification as determined by the Division. Id. For payment of compensable injuries under the Act, the worker's compensation account shall be one and indivisible. Id.

Particular Requirements

Employers who have employees engaged in any extrahazardous occupation as defined by WYO. STAT. ANN. § 27-14-106 are required to receive coverage from Wyoming worker’s compensation program. See WYO. STAT. ANN. § 27-14-102 (LexisNexis 2013). To receive coverage, employers must apply and pay premiums to the Division. Employers can also voluntarily elect to obtain coverage under this Act. See WYO. STAT. ANN. § 27-14-108 (LexisNexis 2013). An employer electing coverage must elect to cover all his or her employees. Id. An employer may withdraw coverage elected under this subsection at any time if the elected coverage has been in effect for at least two (2) years and the employer is current on all contributions and payments required under this act. Id.

General Rule Where Employer is Uninsured

Employers under the Act are immune from suit by injured employees, unless the employer intentionally caused physical harm or injury to the employee, as previously explained. Wyo. Stat. Ann. § 27-14-104(b) (LexisNexis 2013). Employers who are not required to participate in the worker’s compensation program are not required to obtain insurance; however, if an employer does not participate in the program and/or if the employer, at the time of the accident, does not qualify under this Act for coverage or having qualified, has not paid the required premium on an injured employee's earnings within thirty (30) days of the date due, it is not immune from suit if the employer. Id

Damages by Action at Law Where Employer is Uninsured

An employer that does not qualify under this Act is liable for tort damages in which the employer is held legally liable.

Uninsured Employers Guaranty Fund

Wyoming does not have an uninsured employer guaranty fund.