Vol. 34, No. 3, 52. Court Summaries.

• Author: by P. Craig Silva

Wyoming Bar Journal

2011.

Vol. 34, No. 3, 52.

Court Summaries

Wyoming Bar JournalIssue: June, 2011Court Summariesby P. Craig SilvaSandra Mahaffey, as Personal Representativeof the Estate of Donald Dial v. State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division 2011 WY 45 S-09-0091

March 11,2011

On June 10, 2004, Donald Dial was working as a counter sales person for Howard Supply Company in Casper, Wyoming. While assisting a customer, he picked up a 290 pound reel of wire rope and suffered a c-spine injury. As a result of the injury, on March 15, 2005, Mr. Dial received a two level anterior cervical diskectomy and fusion to repair the condition. In September of 2005, Mr. Dial had a functional capacity examination performed by physical therapist Ken Rodeman. Mr. Rodeman gave Mr. Dial a 25% permanent partial impairment rating and concluded that Mr. Dial could not go back to heavy physical labor but could return to medium physical work. The conclusion was bolstered by the independent medical examination of Dr. Zondag who concluded that Mr. Dial had a 26% impairment rate and could return to medium work. Because of these opinions, the Division awarded Mr. Dial a permanent partial impairment benefit of $18,574.33. The issue on appeal was whether Mr. Dial was entitled to these benefits.

Permanent partial disability benefits are benefits for economic loss to an injured employee resulting from a permanent physical impairment. To obtain permanent partial disability benefits, the injured employee must show that he has suffered a loss of earning capacity due to work-related injury. Statutorily, under Wyo. Stat. §27-14-405(h), the injured employee must show that because of injury he cannot earn or return to employment that earns him a wage of 95% of the monthly gross earnings the employee was making at the time of his work-related injury.

As evidence on the question of entitlement to permanent partial disability benefits, the hearing examiner heard from a vocational rehabilitation expert, Kelly White. Ms. White opined that there were no jobs at 95% or above Mr. Dial's pre-injury salary. She did not include jobs that required driving because Mr. Dial indicated he was afraid to drive because of the lack of motion in his neck. The Division then got an affidavit from Dr. Zondag that indicated that Mr. Dial's physical condition did not prevent him from driving. Ms. White then changed her opinion and said there were jobs that would prevent Mr. Dial from obtaining permanent partial disability benefits. Her opinions were based on Dr. Zondag's opinions and affidavit.

The OAH found in favor of Mr. Dial. The Division took the position in the hearing that the reason Mr. Dial was not driving was because he had gotten a DUI and his license was suspended, which had nothing to do with his physical condition. Mr. Dial disagreed and put on evidence that he could not drive. The district court reversed the OAH holding that Mr. Dial failed to establish, by a preponderance of the evidence, that he was incapable of finding employment in Wyoming at a wage that was at least 95% of the pre-injury wage. This appeal followed. The Wyoming Supreme Court reversed.

The Wyoming Supreme Court started the analysis by discussing those things or items of evidence that are relevant to the determination of economic loss for permanent partial disability which include: (1) the employee's physical impairment, (2) nature and extent of the injury, (3) age, (4) education, (5) actual earnings, (6) pre-injury and post-injury earnings, (7) ability to continue pre-injury employment; and (8) post-injury earning prospects. No factor by itself is determinative. Once the Court outlined these factors, it went on to conclude that the OAH had properly balanced these factors and considered each in its analysis, thus giving the district court judge no basis to reverse the decision.

Justice Golden dissented. He concluded that the findings of fact and conclusions of law of the OAH were defective, and he would reverse and instruct the OAH to make proper findings based on the record and the evidence. Justice Golden's dissent goes on for 13 pages and is worthy of some discussion. He basically concludes that the testimony was so conflicting that the hearing examiner had to reconcile the conflict and draw conclusions of why the resolution of those conflicts leads to a particular result. According to Justice Golden, that was not done and the case should be reversed for instructions to the hearing examin.er to make such find.ings.

Orthopaedics of Jackson Hole, P.C. d/b/a Teton Orthopaedics v. Michael J. Ford 2011 WY 50 S-09-0136

March 21, 2011

In 1998, five orthopedic surgeons in Jackson Hole, Wyoming, founded Orthopaedics of Jackson Hole, P.C. (hereinafter "OJH"). Dr. Ford is an orthopedic surgeon who joined OJH in 2000. He received one share of stock. In 2005, Dr. Ford left OJH. The parties could not agree on the value of the one share of stock and this suit resulted. Dr. Ford brought a declaratory judgment action and the OJH counterclaimed. The counterclaims were dismissed by the district court. The district court determined the stock value. The Wyoming Supreme Court reversed.

When OJH was formed, five stocks were issued to each of the doctors forming the company. The OJH 1998 shareholders agreement said that stock was evidence of ownership and that if one shareholder wanted to sell his or her share, the value of the stock would be determined by OJH's certified public accountant. In 2003 and again in 2005, the valuation formula as to the stock outlined in the ownership agreement was modified.

At trial, Dr. Ford's expert indicated that he was basing his opinions on the 2003 formula. On this issue, the trial court concluded that "the original 1998 Agreement was the applicable agreement. It reasoned that neither the 2003 formula nor the 2005 formula applied because they were not unanimously adopted, as required by the terms of the original 1998 agreement." The problem with this conclusion is that the parties all agreed that the 2003 formula was the proper method of valuation. There was no amendment of the pleadings and there was no evidence presented of the valuation under the 1998 shareholders agreement. Both experts testified using numbers derived from the 2003 formula. That being said, the Court concluded that the district court should have used the 2003 formula and that there is sufficient evidence in record for this Court to find the stock value at $67,556.00.

Ronald Lee Worman and Sherri Lynne Worman v. BP America Production Company 2011 WY 54 S-10-0162

March 25, 2011

This case is from an appeal of an arbitrator's decision. An arbitrator denied Ronald Worman's claims against BP America Production Company (hereinafter "BP"). Mr. Worman sought to vacate the arbitrator's decision and the district court denied the motion. The Wyoming Supreme Court affirmed the district court. The issue according to Mr. Worman is that the arbitrator's decision must be vacated because it is based on a mistake of law.

On August 23, 2006, Mr. Worman was working for Nabors Drilling Company on an oil rig. The well site was owned and operated by BP. Wayne Sanford was BP's company man on site. Mr. Wor-man claims that for no reason Mr. Sanford grabbed him and placed him in a headlock which caused severe pain in Mr. Worman's neck. Mr. Sanford then started choking him. Mr. Worman filed suit against Mr. Sanford, BP and...