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Serda v. State ex rel Wyoming Workers' Safety and Compensation Div.3/14/2002
W.R.A.P. 12.09 Certification from the District Court of Laramie County The Honorable Edward L. Grant, Judge
HILL, Justice, delivered the opinion of the Court. GOLDEN, Justice, filed a specially concurring opinion, in which VOIGT, Justice, joined.
[ ] Appellant, Sonjia Serda (Serda), challenges the October 16, 2000 order of the Medical Commission (Commission), which denied a portion of her attorney's claim for costs and expenses necessarily and reasonably incurred in preparation for her hearing before the Commission. Appellee, Wyoming Workers' Safety and Compensation Division (Division), contends that the Commission properly denied Serda's claim in accordance with its rules, as well as governing statutes. On November 1, 2000, Serda filed a petition for review in district court pursuant to W.R.A.P. 12.03. On December 12, 2000, the district court certified the matter to this Court for review under authority granted by W.R.A.P. 12.09.
[ ] We affirm.
ISSUES
[ ] Serda raises these issues:
1. Did the Medical Commission act arbitrarily and capriciously in failing to follow its own rules of practice and procedure in denying Appellant's claim for reimbursement of medical fees expended during the preparation of her claim for contested case hearing?
2. Did the Medical Commission err as a matter of law in its interpretation of §§ 27-14-405(g) and (m) and 27-14-604, W.S. 1977 (1998 Repl.) in denying payment for the costs of a third physical impairment rating performed at Appellant's request during the pendency of contested case proceedings?
The Division rephrases those issues somewhat:
I. Did the Medical Commission correctly follow its own rules in declining to order the Division to pay for Appellant's third impairment rating?
II. Did the Medical Commission comply with Wyo. Stat. Ann. § 27-14-405(g) & (m) in declining to order the Division to pay for Appellant's third impairment rating?
FACTS
[ ] Serda's claim for worker 's compensation benefits began in August of 1996, when she injured her right elbow while at work in Cheyenne. She received worker 's compensation benefits for that injury and, after a substantial period of conservative treatment, underwent surgery on January 27, 1998. Serda continued therapy for many months after the surgery and was deemed by her treating physician to have reached maximum medical improvement on May 21, 1998. Serda continued to experience significant pain and continued treatment for that problem.
[ ] Wyo. Stat. Ann. § 27-14-405(f) (LexisNexis 2001) provides: "An injured employee suffering an ascertainable loss may apply for a permanent partial impairment award as provided in this section." Section 27-14-405(g) provides: "An injured employee's impairment shall be rated by a licensed physician using the most recent edition of the American Medical Association's guide to the evaluation of permanent impairment." The record does not reflect that Serda made an application for a permanent partial impairment award; however, on July 24, 1998, the Division sent Serda to Gem City Bone & Joint for the purpose of undergoing an impairment evaluation. The report of that evaluation is detailed, but it suffices for purposes of this appeal to note that the report was sent to the Division and set Serda's impairment rating at 0%. Sections 27-14-405(f) and (g) are not specific as to how the selection of the physician whose examination will initiate this process is made, but the Division's rules flesh this out. Chapter 5, section 3(c)(ii) provides:
(c) Initial Claim for Permanent Partial Impairment (PPI) Benefits.
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