Worker's Compensation Claim of Gilstrap v. State ex rel. Wyoming Workers' Compensation Division

875 P.2d 1272, 1994 Wyo. LEXIS 80
CourtWyoming Supreme Court
DecidedJune 15, 1994
DocketNo. 93-221
StatusPublished
Cited by26 cases

This text of 875 P.2d 1272 (Worker's Compensation Claim of Gilstrap v. State ex rel. Wyoming Workers' 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.

Bluebook
Worker's Compensation Claim of Gilstrap v. State ex rel. Wyoming Workers' Compensation Division, 875 P.2d 1272, 1994 Wyo. LEXIS 80 (Wyo. 1994).

Opinion

MACY, Chief Justice.

Appellant Deborah K. Gilstrap appeals from the district court’s order which affirmed the hearing examiner’s decision to deny her claim for permanent-total-disability benefits or an increase in her permanent-partial-disability award.

We affirm.

Ms. Gilstrap presents the following issue for our review:

1.Whether Employee-Claimant is entitled to any additional award for permanent partial physical impairment for loss of earning capacity in this case.

Ms. Gilstrap was employed as a waitress at Benham’s Inc., a restaurant located in Cas-per. In March of 1990, she injured her back while she was lifting a loaded food service tray. Ms. Gilstrap received a permanent-partial-disability award which was given on the basis of a twenty-one-percent-whole-body-physical-impairment rating.

Subsequently, she applied for permanent-total-disability benefits or an additional award of permanent-partial-disability benefits. She contended that she. was entitled to receive an additional award because she had lost her earning capacity as a result of her work-related injury.

The Workers’ Compensation Division denied Ms. Gilstrap’s application, and Ms. Gil-strap objected to that decision. After holding a contested ease hearing, the hearing examiner denied Ms. Gilstrap’s claims. The hearing examiner issued the following conclusions of law:

1. The burden of proving entitlement to benefits is upon the Employee-Claimant who must prove her case by a preponderance of the evidence.
2. Employee-Claimant has not met her burden in showing that she is permanently totally disabled. The medical and clinical reports are substantial evidence that there is an occupation for continuous employment available to the Employee-Claimant at this time, at a wage equal to or greater than what she received before the injury.
3.The Employee-Claimant has not met her burden of proof in showing that her permanent partial disability exceeds the 21% physical impairment award she has already received.

After the district court affirmed the hearing examiner’s decision, Ms. Gilstrap appealed to this Court.

The standard which we use to review agency actions is articulated in Wyo.Stat. § 16-3-114(e) (1990). See also W.R.A.P. 12.-09. “ ‘The extent and degree of disability are questions of fact.’ ” Leonard v. McDonalds of Jackson Hole, 746 P.2d 1261, 1262 (Wyo.1987) (quoting State ex rel. Worker’s Compensation Division v. Lewis, 739 P.2d 1225, 1226 (Wyo.1987)). See also Sims v. State ex rel. Wyoming Workers’ Compensation Division, 872 P.2d 555, 556 (Wyo.1994). The claimant has the burden of proving each essential element of her claim by a preponderance of the evidence. Leonard, 746 P.2d at 1263 (citing Potter v. RMT Properties, Inc., 715 P.2d 214 (Wyo.1986)).

Pursuant to § 16-3-114(c)(ii)(E), we review questions of fact under the substantial evidence standard:

“Our task is to examine the entire record to determine if substantial evidence exists to support the hearing examiner’s findings. We will not substitute our judgment for that of the hearing examiner if his decision is supported by substantial evidence. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions.”
Romero v. Davy McKee Corporation, 854 P.2d 59, 61 (Wyo.1993) (citing Farman v. State ex rel. Wyoming Workers’ Compensation Division, 841 P.2d 99, 102 (Wyo.1992)).

Bearden v. State ex rel. Wyoming Workers’ Compensation Division, 868 P.2d 268, 269 (Wyo.1994).

Ms. Gilstrap contends that she was entitled to receive an award for permanent total disability because she was permanently incapacitated and could not work as a result of her work-related injury. Specifically, she [1274]*1274claims that she was entitled to receive permanent-total-disability benefits because her situation fell within the odd lot doctrine,

(xvi) “Permanent total disability” means the loss of both legs or both arms, total loss of eyesight, paralysis or other conditions permanently incapacitating the employee from performing work at any gainful occupation for which [s]he is reasonably suited by experience or training [.]

Wyo.Stat. § 27-14-102(a)(xvi) (Supp.1993) (emphasis added). The statutory definition for permanent total disability is consistent with the odd lot doctrine. City of Casper v. Bowdish 713 P.2d 763, 765 (Wyo.1986). The odd lot doctrine provides: “[Permanent total disability ‘may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well known branch of the labor market.’ ” Cardin v. Morrison-Knudsen, 603 P.2d 862, 863-64 (Wyo.1979).

[I]n order to come within the odd-lot doctrine,

“it is the burden of the employee to establish not only that [s]he is no longer capable of working at the job in which [s]he was employed at the time of h[er] injury, but that the degree of obvious physical impairment, coupled with other facts, such as mental capacity, education, training, or age, must prima facie place h[er] in that category.” City of Casper v. Bowdish Wyo., 713 P.2d 763 (1986).

Worker’s Compensation Claim of Cannon v. FMC Corporation, 718 P.2d 879, 884-85 (Wyo.1986). To satisfy this burden, a claimant normally must make “a showing that [s]he made reasonable efforts to secure suitable employment.” 718 P.2d at 885. The worker may also satisfy her burden by showing that she “was so disabled by virtue of [her] injuries that any [efforts to secure employment] would have been futile.” Schepanovich v. United States Steel Corporation, 669 P.2d 522, 529 (Wyo.1983).

If the employee meets her burden, the burden of proof shifts to the employer to demonstrate that “light work of a special nature which the employee could perform but which is not generally available in fact is available to the employee.” 669 P.2d at 528. The hearing examiner ruled that Ms. Gil-strap’s situation did not come within the odd lot doctrine because Ms. Gilstrap failed to meet her initial burden of proof. We agree.

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875 P.2d 1272, 1994 Wyo. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/workers-compensation-claim-of-gilstrap-v-state-ex-rel-wyoming-workers-wyo-1994.