Tuesday, October 07, 2014
Decision for Employer/Client Regarding Employee Claim for Wages - Labor Standards
Our client`s former employee filed a claim for unpaid wages with the Wyoming Department of Workforce Services, Labor Standards division. The employee had been unable to return to work due to a covered workers` compensation injury in December 2013. He was subsequently discharged in May after he had been unable to return to work and due to changes in the business. Despite that, he claimed he was owed over $6,000.00 consisting of $500.00 per month in medical reimbursement from January to May 2014 and ten days vacation time. He added a claim that he was owed for forty-four hours of work during the period he was recovering from his work related injury.
Brian Hunter was able to show that evidence demonstrated the employee was not owed any of the claimed compensation as he had not engaged in any covered employment following his injury and was otherwise unable to perform the essential duties of his job for which he was hired.
On September 4, 2014, Labor Standards found that the activities that the employee claimed he was owed wages for following his injury were for pre-employment activities such as filling out applications, training and driving tests which were conditions of employment that benefitted the employee and not the employer. Labor Standards applied the six-part test of the United States Department of Labor (USDOL) to determine if the pre-employment training was compensable under the Fair Labor Standards Act (FLSA):
1) The training, even though it includes actual operation in the
employer`s facilities, is similar to training that would be given
in a vocational school (this means the training is "fungible,"
or interchangeable, and can be used by the employee in another
position with another employer);
2) The training is for the benefit of the trainee;
3) The trainees do not displace regular employees but work under
4) The employer that provides the training derives no immediate
advantage from the trainees` activities and at least on occasion,
its operation may actually be impeded;
5) The trainees are not necessarily entitled to a job at the completion
of the training period; and
6) Both the employer and the trainees have an understanding that
the trainees are not entitled to wages for the time spent in training.
In short, Labor Standards determined that the activities were not compensable.
Furthermore, it was determined that the employee was receiving Temporary Total Disability benefits from the Wyoming Workers` Compensation Division and that payment of the requested compensation would amount to a double recovery.
This decision was upheld on review by the Department of Labor Standards on October 7, 2010.
Tuesday, April 29, 2014
Settlement of American with Disabilities Act and Fair Employment Practices Act Claim
Sean Scoggin negotiated a settlement on behalf of our client, owner of a McDonald`s franchise, regarding a claim brought against it by a former employee pursuant to the American with Disabilities Act and Wyoming Fair Employment Practices Act.
The employee alleged that he was discriminated against on the basis of his disability and that he was not afforded reasonable accommodations by his employer and that he was discharged on the basis of his disability.
The evidence demonstrated that our client had made numerous attempts to accommodate the employee by providing a job coach and by moving him to different jobs within the restaurant. He showed he was unable to perform the work in these different jobs at a satisfactory level or was otherwise restricted from the job due to health restrictions placed by his physicians. The employee was discharged after he failed to show for a meeting to discuss appropriate work conditions for him and because the employer was informed that he had found new employment.
The Employee agreed to accept as settlement $3,500.00 and six free Value Meal coupons.
Wednesday, March 05, 2014
Office of Administrative Hearings Finds in Favor of Client in Workers` Compensation Claim for Benefits related to Carpal Tunnel Syndrome (CTS)
The Office of Administrative Hearings found in favor of the Claimant, our client, represented by Brian J. Hunter and extended Workers` Compensation coverage for bilateral carpal tunnel syndrome (CTS). The Wyoming Workers` Compensation Division had objected to coverage on grounds that our client had filed a late claim and that her carpal tunnel syndrome was not related to her substantial work on a computer and keyboard use. The Hearing Examiner found that the Division`s medical expert lacked credibility with regard to his testimony that computer keyboard use is not a cause of CTS and that the Claimant did not have CTS at his examination.
The decision noted that four of Claimant`s doctors found her to have CTS and that the testimony from Claimant`s primary physician that keyboarding was a contributing factor but not the sole cause of the CTS was more credible. It was also noted that Claimant`s symptoms decreased when away from work for significant periods of time. The issue of late filing of the Report of Injury was also resolved in favor of Claimant by finding the filing to be timely, and that even if the report was late there was no prejudice to the Division due to the limited treatment Claimant received.
Thursday, February 06, 2014
Successful Defense of Punitive Damages Claim Stemming From Auto Accident
Sean W. Scoggin provided a successful defense to our client in an automobile accident. Plaintiff met our client a local bar and proceeded to ask him for a ride. Plaintiff alleged that she did not know that Defendant had been drinking. The ride resulted in a one vehicle accident and our client was found to be driving under the influence of alcohol. Our client admitted fault but did not waive a finding of comparative fault on the part of the Plaintiff.
Expert testimony of Plaintiff`s emergency room doctor established, contrary to her testimony, that there was no loss of consciousness and she was discharged without pain medication with a pain level no pain. A defense expert reviewed Plaintiff`s medical records and testified at trial that Plaintiff suffered no more than a bruised sternum and small abrasions and that complaints regarding the low back and neck were pre-existing complaint and not related to the accident.
Plaintiff made a claim to the jury for $850,000 in damages. The Jury awarded $15,000 in damages and denied a request for punitive damages. Our client was found negligent by the jury but also apportioned 45 percent of the fault to Plaintiff thereby reducing her award to $8,250.
Thursday, November 07, 2013
Julie Tiedeken Successfully Defends in Auto Accident
Julie Nye Tiedeken successfully defended our client from personal injury claims stemming from a motor vehicle accident that occurred on October 2008. Our client was driving his vehicle and the Plaintiff was a passenger. The Plaintiff contended that he suffered extensive injuries from the accident including injuries to his foot that required surgery.
The jury returned a verdict in favor of our client finding that although he was negligent, his actions were not the cause of Plaintiff`s injuries.
Wednesday, October 16, 2013
Successful Outcome from Arbitration in Claim for Uninsured Motorist Coverage
Sean Scoggin represented our client in an arbitration before a panel of three Wyoming attorneys, Mark W. Gifford, Joesph E. Vlastos and Richard H. Honecker. The issue at the arbitration hearing involved our client`s claim for uninsured motorist coverage against her liability insurer arising out of a motor vehicle accident in April 2008 in Cheyenne, Wyoming. The arbitration panel heard and considered all the evidence and found that our client was entitled to recover significant additional compensation from the insurer for her injuries and damages stemming from the accident.
Wednesday, August 14, 2013
Sean Scoggin Obtains Defense Verdict in Trial Involving Car Accident
Sean W. Scoggin successfully defended a case brought by a Plaintiff alleging that a car accident in July 2009 caused chronic neck pain and depression. Medical bills were presented to the jury in the amount of $166,000.00. Plaintiff`s medical expert testified that both of the cervical fusions that she had prior to trial were necessitated by the accident. Plaintiff also claimed damages for severe pain and suffering, loss of enjoyment of life and loss of consortium on the part of her husband.
Plaintiff did not attend the trial except to testify as she alleged that she was too emotional about the accident to sit through trial. Plaintiff`s own treating healthcare provider testified that imaging prior to and after the accident did not show more than normal degeneration of the cervical spine and did not indicate an acute injury. This doctor testified that despite some minor disc protrusions he saw nothing that would have necessitated surgery.
The jury found that out client was negligent with regard to the accident, but he was not the cause of the plaintiffs` injuries.
Tuesday, March 12, 2013
Second Successful Appeal of Denial of Permanent Total Disability
This is the second of two successful appeals to the Wyoming Supreme Court involving our client, Tyler Stallman, in pursuit of benefits that she was eligible for related to her Workers` Compensation claim for Permanent Total Disability.
Appellant Tyler L. Stallman worked for the Wyoming Department of Corrections
at the Wyoming Women’s Center in Lusk, Wyoming. She sustained significant injuries during a vehicle rollover while driving to pick up a prisoner in Sheridan. Ms. Stallman suffered from multiple pelvic fractures, pulmonary and bodily contusions, a chipped tooth, and an impacted humeral head fracture of the right shoulder. A doctor’s notes indicated that “[t]he accident appears to have been quite significant.” Ms. Stallman was hospitalized for a week, during which her pelvic fractures were stabilized. She later underwent several surgeries, including a rhinoplasty1 and a resurfacing arthroplasty of the right shoulder. After she was released from WMC, Ms. Stallman attended physical therapy and counseling for post-traumatic stress disorder (PTSD), and she participated in several years of post-operative care and rehabilitation.
After receiving a 22% permanent partial impairment award from the Wyoming Workers’ Safety and Compensation Division (the Division), she applied for permanent total disability (PTD) benefits. The Division denied her application, finding that she did not meet the statutory definition of permanent total disability. Ms. Stallman requested a contested case hearing, and the case was referred to a panel of the Medical Commission (the Commission or panel).
Following the hearing and based upon the evidence presented, the Commission concluded that Ms. Stallman did not meet her burden of proving that she was entitled to PTD benefits under the odd lot doctrine. The decision was appealed to the district court which affirmed the Commission. We appealed to the Wyoming Supreme Court, claiming that the Commission’s final order was unsupported by substantial evidence and contrary to applicable law due to improper application of the odd lot doctrine.
The Supreme Court held that Ms. Stallman presented a prima facie case showing that she was unemployable in her community due to her injuries, and that the Division failed to rebut this showing by demonstrating that there was in fact gainful employment available to her within a reasonable geographic area. The Court reversed the district court’s order affirming the Commission’s final order, and remanded this matter to the district court with directions that it remand the case to the Commission for an award of Permanent Total Disability.
See 2013 WY 28 (Wyo. 2013).
Friday, November 30, 2012
Owner of Stolen Vehicle Does not Owe a Duty to Victims of Crash
The Supreme Court affirmed the decision of the District Court granting summary judgment to our client, the owner of a stolen vehicle.
The Plaintiff on behalf of herself and her two minor children filed suit against our client who left her car unattended with the motor running in her private driveway while she briefly returned to her home to retrieve her pocketbook. In the interim, a methamphetamine user, stole her vehicle and later got into a high-speed chase with the police, which ended when the car he was driving collided with a vehicle driven by the plaintiff, mother. The complaint alleged that our client breached a duty to them of due care by leaving her car unattended with the keys in the ignition. The district court granted the motion for summary judgment filed on behalf of our client on the basis that no duty was owed to the appellants under either the common law or by statute, and that the Plaintiff`s act of leaving her keys in her car with the motor running was not the proximate cause of the accident.
The Wyoming Supreme Court decided that our client did not owe a duty to the Plaintiffs:
"We cannot agree with the [Plaintiffs] that the [Defendant] “essentially deliver[ed] [the] vehicle” to a drug-impaired thief. The fact that the [Defendant`s] conduct may have contributed in some way to the accident that occurred does not make her morally culpable. Certainly, [the thief], who was driving the vehicle at a high rate of speed in an attempt to elude the police, was in a better position to prevent the harm to the appellants than was the [Defendant]. In truth, the same can be said about the police officer or officers involved in the pursuit. And sadly, the same can even be said about [the Plaintiff] because the accident occurred at an intersection that [the Plaintiff] entered against a red light."
The Supreme Court refused to impose a duty upon our client in the circumstances presented in this case stating, "It must be remembered that the imposition of a duty not to leave the motor running in a vehicle in one’s driveway would apply across the board, and would create potential liability for every person in Wyoming who, on a cold winter day, starts his or her car to warm it up and defrost the windshield before driving upon the public highways."
Tuesday, November 20, 2012
Supreme Court Reverses District Court and Remands for Hearing on Permanent Total Disability
Our client, Tyler L. Stallman, was injured in a car accident that occurred in the course of her employment. After receiving a 22% permanent partial impairment award from the Wyoming Worker’s Compensation Division (Division), she sought permanent partial disability (PPD) benefits. The Division denied her application stating that she had not complied with the statutory work search requirements. Ms. Stallman requested a contested case hearing. Both parties submitted motions for summary judgment. After a hearing, the Office of Administrative Hearings (OAH) concluded as a matter of law that Ms. Stallman had not timely submitted documentation showing she had sought work and granted summary judgment for the Division.
Brian Hunter sought review on behalf of Ms. Stallman in the district court, which affirmed the OAH’s ruling. We then pursued her appeal to the Wyoming Supreme Court, claiming the OAH ruling granting the Division’s summary judgment motion was arbitrary, capricious and contrary to the evidence.
Specifically, it was argued that the Division improperly denied her application for benefits when she did not submit her work search documentation on the date it arbitrarily imposed—a date weeks before the statutory deadline for submitting her application. We argued that the OAH erred in upholding the denial based upon its incorrect finding that she had failed to provide her work search documentation as required by Wyo. Stat. Ann. § 27-14-405(h)(iii).
The Supreme Court held that Ms. Stallman’s work search submission was timely. and that she was entitled to a hearing and the opportunity to present evidence showing that she actively sought work. Upon remand, the Wyoming Workers` Compensation Division withdrew its objection.
The case is 2012 WY 147 (Wyo. 2012).
Wednesday, May 16, 2012
Jury Decides in Favor of Defendant in Carbon Monoxide Case
Julie Tiedeken and Sean Scoggin obtained a defense verdict following a trial to a twelve person jury. The case involved claims by Plaintiff`s that a heating/HVAC contractor was liable for damages they alleged to have incurred as a result of a malfunctioning heater/furnace in their rented apartment. Plaintiffs claimed that the furnace malfunctioned and caused carbon monoxide to build up in their home and that they suffered carbon monoxide poisoning and claimed permanent cognitive defects as a result of the exposure.
The jury found that our client was not liable for Plaintiffs` injuries and damages.
Wednesday, October 12, 2011
Positive Result in Defense of Personal Injury Claims Stemming from Automobile Accident
Sean Scoggin defended our client in a jury trial involving a motor vehicle accident that occurred in August 2007 in Rawlins, Wyoming. Our client was driving behind the Plaintiff. As the two pulled up to a stop sign, Plaintiff came to a stop and our client failed to stop in time and her front bumper made contact with the trailer hitch on Plaintiff`s truck at less than 5 miles per hour. There was a small amount of damage on the front bumper of the vehicle being driven by our client and no damage to Plaintiff`s truck. Plaintiff claimed that the accident caused damage to the driver’s seat recliner.
Our Client`s children who were in the back seat of her car were uninjured and they felt no more than a slight bump in the impact. The police were contacted and it took approximately 25 minutes for an officer to arrive. During that 25 minutes Plaintiff did not complain of any physical pain and was walking around without visible problems. He also indicated that he had been in a previous accident about one week before this accident. Once the officer arrived, he noted no damage to Plaintiff`s vehicle and that there was less than $1,000.00 damage to the vehicle driven by our client. Police video also showed Plaintiff walking around the scene of the accident with no discernable problems.
Plaintiff`s prior medical history also included his being on Social Security on and off since 1977 following an accident in which a tree fell on him and he sustained injuries to his neck, back and all off his left side. He had a second accident in 1978 where he smashed his neck and shoulder against the roll bar of a tractor.
At trial, Plaintiff claimed that as a result of the accident he had undergone two cervical surgeries and that he had problems with his low back. He asked the jury to award medical bills totaling $165,000 plus pain and suffering, loss of enjoyment of life and disability as a result of the accident. Ultimately the jury awarded only $8,437.75.
Friday, June 11, 2010
Summary Judgment in Defense of Malpractice Claim
Our attorneys were requested to represent a respected Wyoming law firm with regard to a legal malpractice claim filed against it by a former client. The firm had previously represented a Wyoming ranch in an earlier proceeding against a surveying and engineering firm that failed to render the professional services contracted for. The law firm, on behalf of its ranching clients filed suit against the engineering and surveying company. The district court granted summary judgment to the defendant engineer on the basis that suit was not filed within the applicable statute of limitations and the matter was appealed to the Wyoming Supreme Court. The firm and the ranch agreed to continue the representation through the supreme court appeal with the express understanding that the ranch may be a claim for legal malpractice.
On appeal the Wyoming Supreme Court affirmed the district court`s decision to grant summary judgment to the engineering and surveying company. During the intervening period the ranch had contacted other lawyers to represent it against our client in a lawsuit for legal malpractice. When the supreme court decision was issued the ranch was represented by another attorney and at that time was fully aware of the date upon which the running of the statute of limitations would be based with regard to the suit against our client.
The ranch filed suit in District Court to pursue its malpractice claim against our client for failure to file their original suit within the applicable statute of limitations. Bill McKellar and Brian Hunter filed a Motion for Summary Judgment in defense of the suit. We argued that the ranch again failed to file suit within the statute of limitations provided in Wyoming`s professional negligence statute, Wyo. Stat. 1-3-107 based on the decisions of the district court and the supreme court in the previous suit. The district court in this suit, noting the difficulty it had in reaching its decision in light of the consequences to the ranch yet again, agreed and determined that the ranch again failed to file within the applicable statute of limitations.
Thursday, October 01, 2009
Summary Judgment for Tour Operator in Wrongful Death Suit
On June 2, 2006, a tour group organized by our client gathered at the Jackson Lake Lodge in Grand Teton National Park. The group traveled via several vans owned and operated by an independent rafting company to a rafting launch site at Deadman’s Bar on the Snake River. The trip was expected to take approximately one hour. There the larger group was split into four smaller groups, and a guide was provided by the rafting company for each raft.
The raft at issue, Raft No. 2, had 11 passengers. The raft guide was an employee of the rafting company and had been for four years. Tragically, during the float trip, Raft No. 2 struck a log jam and was upended as a result. All the passengers were thrown into the river. Despite hard fought efforts to rescue everyone, three of the passengers died as a result of this accident.
Suit was filed against our client, the company that organized the tour alleging that it was responsible for the rafting accident and the deaths that occurred under a variety of theories including negligence, fraud and joint venture.
Bill McKellar and Brian Hunter filed motions for summary judgment on behalf of our client based on the Wyoming Recreation Safety Act, lack of duty/negligence, joint venture, fraud and punitive damages. The Court denied the motion for summary judgment regarding the Wyoming Recreation Safety Act but, granted the summary judgment motions based on Negligence, Joint Venture, Fraud and Punitive Damages. Ultimately our client was dismissed from the suit prior to trial based on the Court`s finding that as a matter of law the tour group operator had no duty to the Plaintiffs with regard to a rafting activity that was provided by an independent third-party vendor. The tour group operator "did not owe a duty to the tour members to warn them of the conditions of the river or otherwise act to prevent their injuries."