Boe v. State ex rel. Wyoming Workers' Safety & Compensation Division

BURKE, Justice,

dissenting.

[¶ 22] I respectfully dissent because I am uncomfortable with the majority’s interpretation of Wyo. Stat. Ann. §§ 27-14-404 and - 605. It is a plausible interpretation, but it is not the only possible interpretation, as demonstrated by the fact that Mr. Boe never asserted that the four-year filing limitation set forth in § 27-14-605 applied to his claim. Accordingly, the hearing examiner and the district court never considered whether the four-year limitation period applied. Perhaps most significantly, the Division has never been provided with the opportunity to weigh in on this issue. The parties did not raise or brief the issue in this appeal. I appreciate the majority’s effort to interpret the confusing language of these statutes, but I think it is imprudent to undertake that effort without the assistance of the parties.

[¶ 23] I am also concerned by a practical consequence of the majority opinion. Following its interpretation, an employee will have only sixty days to file an initial claim for temporary total disability benefits, but up to “four (4) years from the date of the last payment for additional benefits” to file a claim for additional temporary total disability benefits. Wyo. Stat. Ann. § 27-14-605(a). The statutes provide no explanation for the significant disparity between the treatments of initial claims and subsequent claims for additional TTD benefits. In Alcorn, we stated that the purpose of the timely filing requirements was to provide the Division with an opportunity “to effectively monitor and evaluate a claimant’s entitlement to TTD benefits.” ¶ 13, 126 P.3d at 928. We also, recognized that failure to file a timely claim undermined “an employer’s right to offer light duty work to the employee in lieu of TTD benefits.” Id. From a practical perspective, there appears to be no reason for different filing time requirements based upon whether the claim is an initial or a subsequent claim.

[¶ 24] I would remand to provide the parties with the opportunity to present this issue to the OAH.