Bhutto v. State ex rel. Wyoming Worker's Compensation Division

933 P.2d 481, 1997 Wyo. LEXIS 38, 1997 WL 82356
CourtWyoming Supreme Court
DecidedFebruary 28, 1997
DocketNo. 96-119
StatusPublished
Cited by1 cases

This text of 933 P.2d 481 (Bhutto v. State ex rel. Wyoming Worker's Compensation Division) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bhutto v. State ex rel. Wyoming Worker's Compensation Division, 933 P.2d 481, 1997 Wyo. LEXIS 38, 1997 WL 82356 (Wyo. 1997).

Opinion

PRICE, District Judge.

This appeal raises the question of whether the hearing examiner correctly determined the tune of injury under Wyo. Stat. § 27-14-[482]*482403(c) (Cum.Supp.1995) for computation of temporary total disability benefits. The district court affirmed the decision of the hearing examiner. Finding the decision is supported by substantial evidence and otherwise in accordance with law, we affirm.

I. ISSUES

Appellant, Rehan Ali Bhutto (Bhutto), states the issue:

Under Wyo. Stat. § 27-14-403(c) (1994) should temporary total disability benefits be calculated based on the employee’s actual monthly earnings at the time of the accident, or at the time of the first disability resulting from that accident?

Appellee, State ex rel. Wyoming Workers’ Compensation Division (Division), states the issue:

Whether substantial evidence supports the hearing examiner’s determination of Claimant’s “time of injury” for purposes of calculating his temporary total disability benefits.

II. FACTS

Bhutto was involved in a vehicular accident on October 3, 1994. At the time, he was working for American Mobile Research (AMR). That employer contested the claim and a hearing was held February 27, 1995. Bhutto was awarded appropriate benefits. The award included temporary total disability. The amount was calculated by the Division using Bhutto’s rate of pay on October 3, 1994 as the date of injury. Bhutto contested the amount of the temporary total disability and a hearing was held on this issue on August 15, 1995. The hearing examiner denied the request for additional benefits and Bhutto petitioned the district court, which affirmed.

Due to the inability to obtain a transcript of the evidence, the parties stipulated that Bhutto’s testimony at the hearing and relevant for purposes of the appeal was:

1. The Claimant/Appellant was involved in a vehicular accident on October 3, 1994, while working for American Mobile Research.
2. As of October 3, 1994, the Claimant/Appellant was being paid $1,000.00 per month at his job at American Mobile Research.
3. As of the date of the accident, October 3, 1994, the Claimant/Appellant had been hired, but had not yet started work at a second job with M.J. Metal Products, Inc.
4. The Claimant/Appellant was advised by his doctor that he could work light duty, and he immediately returned to work at his original job with American Mobile Research.
5. Claimant/Appellant worked at his original employer, American Mobile Research, on light duty from the time of the accident on October 3, 1994 until October 25,1994.
6. On approximately October 11, 1994, the Claimant/Appellant also began working at M.J. Metal Products, Inc. He worked at that job on light duty until October 25, 1994.
7. The entire workers’ compensation file and Claimant’s Exhibits 1 and 2 were received into evidence at the hearing.

After the accident, on October 5, 1994, Bhutto was examined by Dr. Michael J. Hauke, an emergency room physician in Cas-per, Wyoming. The diagnosis was that Bhutto was suffering from neck and low back strain and a right thigh contusion. Dr. Hauke’s notes indicated that Bhutto was instructed to remain off work for two days until cheeked by the Wyoming Medical Center Outpatient Clinic in Casper. Dr. Hauke also referred Bhutto to physical therapy. On October 6, 1994, Dr. Joe K. Schoeber, a physician at the Wyoming Medical Center Outpatient Clinic, wrote Bhutto a prescription which read, “acute back & neck strain no work until released by physician.” On October 17, 1994, Dr. Schoeber released Bhutto to perform light duty work.

Bhutto returned to work on October 6, 1994. His position with AMR was a seasonal one with only a limited number of working days. He worked October 3rd to the 7th, 10th, 12th, 16th and 18th. As noted in the stipulation of Bhutto’s testimony, he began working with M.J. Metal Products, Inc. (MJ) [483]*483on October 11, 1994 as a full time employee. On October 14, 1994, Bhutto completed an application for temporary total disability which certified that he was totally disabled October 14,1994 through November 15,1994. The issue before the hearing examiner was whether Bhutto’s temporary total disability should be based upon his earnings from AMR, MJ, or both. The Division calculated benefits based only on Bhutto’s earnings from AMR.

III. STANDARD OF REVIEW

“When we review an administrative order, we are not compelled to accept any of the conclusions reached by the district court.” Matter of Fisher, 914 P.2d 1224, 1226 (Wyo.1996). “Instead, we review the case as if it had come directly to this Court from the agency.” Id.

Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner’s findings.
* * * We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision.
* * * Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions.

Latimer v. Rissler & McMurry Co., 902 P.2d 706, 708-09 (Wyo.1995). We do not, however, defer to an agency’s conclusions of law. “Instead, if the ‘correct rule of law has not been invoked and correctly applied, * * * the agency’s errors are to be corrected.’” Thunder Basin Coal Co. v. Study, 866 P.2d 1288, 1291 (Wyo.1994) (quoting Devous v. Wyoming State Bd. of Medical Examiners, 845 P.2d 408,414 (Wyo.1993)).

IV. DISCUSSION

The sole issue in this case involves a determination of the date of injury for purposes of computation of temporary total disability benefits under Wyo. Stat. § 27-14-403(c), which reads in pertinent part:

For temporary total disability under paragraph (a)(i) of this section, the award shall be paid monthly at the rate of two-thirds (2/3) of the injured employee’s actual monthly earnings at the time of injury but not to exceed the statewide average monthly wage for the twelve (12) month period immediately preceding the quarterly period in which the injury occurred as determined pursuant to W.S. 27-14-802.

Bhutto contends that the hearing examiner incorrectly used the date of the accident rather than the date of the injury in his determination. The terms are not synonymous and this court has recognized that concept. Matter of Barnes, 587 P.2d 214, 218-19 (Wyo.1978); Big Horn Coal Co. v. Wartensleben,

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933 P.2d 481, 1997 Wyo. LEXIS 38, 1997 WL 82356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bhutto-v-state-ex-rel-wyoming-workers-compensation-division-wyo-1997.