State Codes and Statutes

Statutes > Wyoming > Title27 > Chapter14

CHAPTER 14 - WORKER'S COMPENSATION

 

ARTICLE 1 - GENERALLY

 

27-14-101. Short title; statement of intent.

 

(a) This act may be cited as the "Wyoming Worker'sCompensation Act".

 

(b) It is the intent of the legislature in creating the Wyomingworker's compensation division that the laws administered by it to provide aworker's benefit system be interpreted to assure the quick and efficientdelivery of indemnity and medical benefits to injured and disabled workers at areasonable cost to the employers who are subject to the Worker's CompensationAct. It is the specific intent of the legislature that benefit claims cases bedecided on their merits and that the common law rule of "liberalconstruction" based on the supposed "remedial" basis of workers'benefits legislation shall not apply in these cases. The worker's benefitsystem in Wyoming is based on a mutual renunciation of common law rights and defensesby employers and employees alike. Accordingly, the legislature declares thatthe Worker's Compensation Act is not remedial in any sense and is not to begiven a broad liberal construction in favor of any party.

 

27-14-102. Definitions.

 

(a) As used in this act:

 

(i) "Artificial replacement" means the addition of anartificial part to the human body which replaces a part lost, damaged or inneed of correction, excluding any personal item, artificial heart, automobileor the remodeling of an automobile or other physical structure or any item offurniture except as provided by rule and regulation of the division. If awheelchair is approved by the division for use during impairment or disability,"artificial replacement" may include necessary cost effective physicalstructures such as ramps, automobile devices or remodeling, bars and rails, andother necessary equipment or devices aiding the body during impairment ordisability, subject to the following criteria:

 

(A) A physical structure for which artificial replacement isclaimed shall be the primary residence of the claimant;

 

(B) Only one (1) automobile at a time shall be eligible fordevices or remodeling under this paragraph.

 

(ii) "Ascertainable loss" means that point in time inwhich it is apparent that permanent physical impairment has resulted from acompensable injury, the extent of the physical impairment due to the injury canbe determined and the physical impairment will not substantially improve ordeteriorate because of the injury;

 

(iii) "Child" means any unmarried minor or physicallyor mentally incapacitated individual receiving court ordered support orsubstantially all of his financial support from the employee at the time ofinjury or death of the employee and includes an adopted child, stepchild,posthumous child or acknowledged illegitimate child but does not include aparent or spouse of the employee;

 

(iv) "Delinquent payment" means any payment requiredof an employer under this act which is not paid within thirty (30) days afterthe date due as specified by this act;

 

(v) "Administrator" means the administrator of thedivision;

 

(vi) "Division" means the worker's compensationdivision within the department of employment;

 

(vii) "Employee" means any person engaged in anyextrahazardous employment under any appointment, contract of hire orapprenticeship, express or implied, oral or written, and includes legallyemployed minors, aliens authorized to work by the United States department ofjustice, office of citizenship and immigration services, and aliens whom theemployer reasonably believes, at the date of hire and the date of injury basedupon documentation in the employer's possession, to be authorized to work bythe United States department of justice, office of citizenship and immigrationservices. "Employee" does not include:

 

(A) Any individual whose employment is determined to be casuallabor;

 

(B) A sole proprietor or a partner of a business partnershipunless coverage is elected pursuant to W.S. 27-14-108(k);

 

(C) An officer of a corporation unless coverage is electedpursuant to W.S. 27-14-108(k);

 

(D) Any individual engaged as an independent contractor;

 

(E) A spouse or dependent of an employer living in theemployer's household;

 

(F) A professional athlete, except as provided in W.S.27-14-108(q);

 

(G) An employee of a private household;

 

(H) A private duty nurse engaged by a private party;

 

(J) An employee of the federal government;

 

(K) Any volunteer unless covered pursuant to W.S. 27-14-108(e);

 

(M) Any adult or juvenile prisoner or probationer unlesscovered pursuant to W.S. 27-14-108(d)(ix);

 

(N) An elected public official or an appointed member of anygovernmental board or commission, except for a duly elected or appointedsheriff or county coroner;

 

(O) The owner and operator of a motor vehicle which is leasedor contracted with driver to a for-hire common or contract carrier. Theowner-operator shall not be an employee for purposes of this act if he performsthe service pursuant to a contract which provides that the owner-operator shallnot be treated as an employee for purposes of the Federal InsuranceContributions Act, the Social Security Act, the Federal Unemployment Tax Actand income tax withholding at source;

 

(P) A member of a limited liability company unless coverage iselected pursuant to W.S. 27-14-108(k);

 

(Q) A foster parent providing foster care services for thedepartment of family services or for a certified child placement agency;

 

(R) An individual providing child day care or babysittingservices, whose wages are subsidized or paid in whole or in part by the Wyomingdepartment of family services. This exclusion from coverage does not excludefrom coverage an individual providing child day care or babysitting services asan employee of any individual or entity other than the Wyoming department offamily services.

 

(viii) "Employer" means any person or entity employingan employee engaged in any extrahazardous occupation or electing coverage underW.S. 27-14-108(j) and at least one (1) of whose employees is described in W.S.27-14-301. "Employer" includes:

 

(A) Repealed By Laws 1999, ch. 46, 2.

 

(B) The governmental entity for which recipients of publicassistance perform work if that work does not otherwise establish a coveredemployer and employee relationship;

 

(C) The governmental entity for which volunteers perform thespecified volunteer activities under W.S. 27-14-108(e);

 

(D) The governmental entity for which prisoners andprobationers work or perform community service under W.S. 27-14-108(d)(ix) or(xv);

 

(E) An owner-operator of a mine at which any mine rescueoperation or training occurs;

 

(F) A temporary service contractor for a temporary worker;

 

(G) Any person, contractor, firm, association or corporation otherwisequalifying under this paragraph as an employer and who utilizes the services ofa worker furnished by another contractor, joint employer, firm, association,person or corporation other than a temporary service contractor, jointemployer, independent contractor or owner and operator excluded as an employeeunder subparagraph (a)(vii)(O) of this section;

 

(H) Any employer otherwise qualifying under this paragraph asan employer and participating in a school-to-work program approved by thedepartment of workforce services, any local school district board of trustees,community college district board of trustees or the department of education,and the employer previously elected coverage in writing pursuant to W.S.27-14-108(m).

 

(ix) "Gross earnings" means remuneration payable forservices from any source including commissions, bonuses and cash and excludingtips and gratuities. The reasonable cash value of remuneration other than cashor check shall be prescribed by rule and regulation of the division. To theextent the following are not considered wages under 26 U.S.C. 3301 through3311, "gross earnings" does not include:

 

(A) Any premium paid by an employer under a plan, system orinto a fund for insurance or annuities to provide an employee or class ofemployees retirement, sickness or accident disability, medical andhospitalization expenses for sickness or accident disability or death benefitsif the employee cannot receive any part of this payment instead of the deathbenefit or any part of the premium if the benefit is insured and cannot assignor receive cash instead of the benefit upon withdrawal from or termination ofthe plan, system, policy or services with the employer;

 

(B) A payment by an employer not deducted from an employee's remunerationfor the tax imposed under 26 U.S.C. 3101;

 

(C) Any dismissal payment which the employer is not obligatedto make;

 

(D) The value of any meals or lodging furnished by and for theconvenience of the employer to the employee if the meals are furnished on thebusiness premises of the employer or in the case of lodging, the employee isrequired to accept lodging on the business premises of his employer as acondition of his employment;

 

(E) Remuneration received by an employee as sick pay followinga six (6) month continuous period of illness;

 

(F) Any benefit received under a cafeteria plan specified by 26U.S.C. 125, excluding cash;

 

(G) Wages of a deceased worker paid to a beneficiary or estatefollowing the calendar year of the worker's death;

 

(H) Services received under any dependent care assistanceprogram to the extent excluded from gross income under 26 U.S.C. 129;

 

(J) Wages paid to a disabled worker during the year followingthe year in which he became entitled to disability insurance benefits under theSocial Security Act;

 

(K) Services or benefits received under any educationalassistance program;

 

(M) Any benefit or other value received under an employeeachievement award;

 

(N) The value of any qualified group legal services plan to theextent payments are excludable from gross income under 26 U.S.C. 120;

 

(O) Costs of group term-life insurance;

 

(P) Any loan repayment which is repaid at interest rates belowestablished market rates;

 

(Q) Any moving expenses;

 

(R) Employer contributions to any qualified retirement orpension plan or individual retirement account and distributions from qualifiedretirement and pension plans and annuities under 26 U.S.C. 403(b);

 

(S) Benefit payments under any supplemental unemploymentcompensation plan; and

 

(T) Any benefits paid under this act or any other worker'scompensation law of another state.

 

(x) "Health care provider" means doctor of medicine,chiropractic or osteopathy, dentist, optometrist, podiatrist, psychologist oradvanced practitioner of nursing, acting within the scope of his license,licensed to practice in this state or in good standing in his home state;

 

(xi) "Injury" means any harmful change in the humanorganism other than normal aging and includes damage to or loss of anyartificial replacement and death, arising out of and in the course ofemployment while at work in or about the premises occupied, used or controlledby the employer and incurred while at work in places where the employer's businessrequires an employee's presence and which subjects the employee toextrahazardous duties incident to the business. "Injury" does notinclude:

 

(A) Any illness or communicable disease unless the risk ofcontracting the illness or disease is increased by the nature of theemployment;

 

(B) Injury caused by:

 

(I) The fact the employee is intoxicated or under the influenceof a controlled substance, or both, except any prescribed drug taken asdirected by an authorized health care provider. The division shall define"intoxicated" and "under the influence of a controlledsubstance" for purposes of this subparagraph in its rules and regulations;or

 

(II) The employee's willful intention to injure or kill himselfor another.

 

(C) Injury due solely to the culpable negligence of the injuredemployee;

 

(D) Any injury sustained during travel to or from employmentunless the employee is reimbursed for travel expenses or is transported by avehicle of the employer;

 

(E) Any injury sustained by the prisoner during or any harmresulting from any illegal activity engaged in by prisoners held under custody;

 

(F) Any injury or condition preexisting at the time ofemployment with the employer against whom a claim is made;

 

(G) Any injury resulting primarily from the natural agingprocess or from the normal activities of day-to-day living, as established bymedical evidence supported by objective findings;

 

(H) Any injury sustained while engaged in recreational orsocial events under circumstances where an employee was under no duty to attendand where the injury did not result from the performance of tasks related tothe employee's normal job duties or as specifically instructed to be performedby the employer; or

 

(J) Any mental injury unless it is caused by a compensablephysical injury, it occurs subsequent to or simultaneously with, the physicalinjury and it is established by clear and convincing evidence, which shallinclude a diagnosis by a licensed psychiatrist or licensed clinical psychologistmeeting criteria established in the most recent edition of the diagnostic andstatistical manual of mental disorders published by the American PsychiatricAssociation. In no event shall benefits for a compensable mental injury bepaid for more than six (6) months after an injured employee's physical injuryhas healed to the point that it is not reasonably expected to substantiallyimprove.

 

(xii) "Medical and hospital care" when provided by ahealth care provider means any reasonable and necessary first aid, medical,surgical or hospital service, medical and surgical supplies, apparatus,essential and adequate artificial replacement, body aid during impairment,disability or treatment of an employee pursuant to this act including therepair or replacement of any preexisting artificial replacement, hearing aid,prescription eyeglass lens, eyeglass frame, contact lens or dentures if thedevice is damaged or destroyed in an accident and any other health services orproducts authorized by rules and regulations of the division. "Medicaland hospital care" does not include any personal item, automobile or theremodeling of an automobile or other physical structure, public or privatehealth club, weight loss center or aid, experimental medical or surgical procedure,item of furniture or vitamin and food supplement except as provided under ruleand regulation of the division and paragraph (a)(i) of this section forimpairments or disabilities requiring the use of wheelchairs;

 

(xiii) "Nonresident employer" means:

 

(A) An individual who was not domiciled in Wyoming for at leasttwelve (12) months prior to commencing operations in the state; or

 

(B) A partnership or other association if any member does notqualify under subparagraph (A) of this paragraph; or

 

(C) A corporation in which more than three-fourths (3/4) of thecapital stock is owned by individuals who do not qualify under subparagraph (A)of this paragraph; and

 

(D) A person who uses or employs covered individuals in Wyomingand who has not been a continuous contributor under this act for twelve (12)months preceding the use or employment.

 

(xiv) "Payroll" means "gross earnings" asdefined under paragraph (a)(ix) of this section;

 

(xv) "Permanent partial disability" means the economicloss to an injured employee, measured as provided under W.S. 27-14-405(j),resulting from a permanent physical impairment;

 

(xvi) "Permanent total disability" means the loss ofuse of the body as a whole or any permanent injury certified under W.S.27-14-406, which permanently incapacitates the employee from performing work atany gainful occupation for which he is reasonably suited by experience ortraining;

 

(xvii) "Spouse" means any individual legally married toan employee at the time of injury or death;

 

(xviii) "Temporary total disability" means that period oftime an employee is temporarily and totally incapacitated from performingemployment at any gainful employment or occupation for which he is reasonablysuited by experience or training. The period of temporary total disabilityterminates at the time the employee completely recovers or qualifies forbenefits under W.S. 27-14-405 or 27-14-406;

 

(xix) "Joint employer" means any person, firm,corporation or other entity which employs joint employees, is associated byownership, commonly managed or controlled and contributes to the worker'scompensation account as required by this act;

 

(xx) "Employer making contributions required by thisact" means the employee's employer and any joint employer when theemployer or any joint employer reports the employee's wages to the division onan account or through a consolidated worker's compensation account andcontributions are made to the account as required by this act;

 

(xxi) "Joint employee" means any person:

 

(A) Who has an express or implied contract for employment withmore than one (1) joint employer at the same time;

 

(B) Whose work is controlled by more than one (1) jointemployer; and

 

(C) Who is engaged in the performance of work for more than one(1) joint employer.

 

(xxii) "Consolidated Wyoming worker's compensationaccount" means an account maintained by the Wyoming workers' compensationdivision to which an employer reports the wages of its employees and jointemployees for its own account and the account of its joint employers, pursuantto which contributions are made to the account as required by this act;

 

(xxiii) "Independent contractor" means an individual whoperforms services for another individual or entity and:

 

(A) Is free from control or direction over the details of theperformance of services by contract and by fact;

 

(B) Repealed By Laws 1998, ch. 117, 2.

 

(C) Represents his services to the public as a self-employedindividual or an independent contractor; and

 

(D) May substitute another person to perform his services.

 

(xxiv) "Casual labor" means service of less than two (2)consecutive weeks and not within the normal course of business;

 

(xxv) "Temporary service contractor" means any person,firm, association or corporation conducting a business that employs individualsdirectly for the purpose of furnishing services of the employed individuals ona temporary basis to others;

 

(xxvi) "Temporary worker" means a worker whose servicesare furnished to another employer on a temporary basis to substitute for apermanent employee on leave or to meet an emergency or short-term workload;

 

(xxvii) "This act" means W.S. 27-14-101 through27-14-805;

 

(xxviii) "State employee" means any individual enteringinto service of or working under an employment contract with any agency of thestate of Wyoming for which compensation is paid or which qualifies theindividual to participate in the state retirement account. Effective on andafter July 1, 2002, "state employee" shall include the University ofWyoming;

 

(xxix) "Professional athlete" means an individual whoreceives payment from a team owner for competing on a baseball, basketball,football, hockey or soccer team having its principal place of business inWyoming;

 

(xxx) For purposes of W.S. 27-14-207 and 27-14-806,"person" means as defined in W.S. 8-1-102.

 

27-14-103. Repealed by Laws 1991, ch. 190, 2.

 

27-14-104. Exclusive remedy as to employer; nonliability ofco-employees; no relief from liability; rights as to delinquent ornoncontributing employer.

 

(a) The rights and remedies provided in this act for anemployee including any joint employee, and his dependents for injuries incurredin extrahazardous employments are in lieu of all other rights and remedies againstany employer and any joint employer making contributions required by this act,or their employees acting within the scope of their employment unless theemployees intentionally act to cause physical harm or injury to the injuredemployee, but do not supersede any rights and remedies available to an employeeand his dependents against any other person.

 

(b) No contract, rule, regulation or device shall operate torelieve an employer from any liability created by this act except as otherwiseprovided by this act.

 

(c) This act does not limit or affect any right or action byany employee and his dependents against an employer for injuries received whileemployed by the employer when the employer at the time of the injuries has notqualified under this act for the coverage of his eligible employees, or havingqualified, has not paid the required premium on an injured employee's earningswithin thirty (30) days of the date due. When an employee's employment startswithin the same month as the injury, the status of delinquency or notcontributing shall not apply until after the regular payroll reporting date.

 

27-14-105. Action against third party; notice; subrogation; legalrepresentation; payment under reservation of rights; actions by department.

 

(a) If an employee covered by this act receives an injury undercircumstances creating a legal liability in some person other than the employerto pay damages, the employee if engaged in work for his employer at the time ofthe injury is not deprived of any compensation to which he is entitled underthis act. He may also pursue his remedy at law against the third party or thecoemployee to the extent permitted by W.S. 27-14-104(a). Except as provided bysubsections (b), (e) and (f) of this section, if the employee recovers from thethird party or the coemployee in any manner including judgment, compromise,settlement or release, the state is entitled to be reimbursed for all paymentsmade, or to be made, to or on behalf of the employee under this act but not toexceed one-third (1/3) of the total proceeds of the recovery without regard tothe types of damages alleged in the third-party action. Any recovery by thestate shall be reduced pro rata for attorney fees and costs in the sameproportion as the employee is liable for fees and costs. All money received bythe state under this section shall be credited to the worker's compensationaccount and considered in computing the employer's experience rating.

 

(b) The director and the attorney general shall be served bycertified mail return receipt requested with a copy of the complaint filed inany suit initiated pursuant to subsection (a) of this section. Service of thecomplaint on the director and attorney general is a jurisdictional requirement in order to maintain the suit. The director and the attorney general shall benotified in writing by certified mail return receipt requested of any judgment,compromise, settlement or release entered into by an employee. Before offeringsettlement to an employee, a third party or its insurer shall notify the stateof the proposed settlement and give the state fifteen (15) days after receiptof such notice in which to object. If notice of proposed settlement is notprovided, the state is entitled to initiate an independent action against thethird party or its insurer for all payments made to and any amount reserved foror on behalf of the employee under this act. If there is a settlement,compromise or release entered into by the parties in claims against a personother than the employer, the attorney general representing the director shallbe made a party in all such negotiations for settlement, compromise orrelease. The attorney general and the director, for purposes of facilitatingcompromise and settlement, may in a proper case authorize acceptance by thestate of less than the state's claim for reimbursement. The proceeds of anyjudgment, settlement, compromise or release are encumbered by a continuing lienin favor of the state to the extent of the total amount of the state's claimfor reimbursement under this section and for all current and future benefitsunder this act. The lien shall remain in effect until the state is paid theamount authorized under this section. In addition the person paying thesettlement remains liable to the state for the state's claim unless the statethrough the attorney general signs the release prior to payment of an agreedsettlement.

 

(c) If the injury causes the death of the employee, the rightsand remedies in this section inure to and the obligations are binding upon thepersonal representative of the deceased employee for the benefit of hisdependents.

 

(d) Any attorney who fails to notify the director and attorneygeneral of any settlement or fails to ensure the state receives its share ofthe proceeds of any settlement or judgment under subsection (a) of this sectionshall be reported to the grievance committee of the Wyoming state bar.

 

(e) At any time before the statute of limitation bars anemployee or his estate from commencing a claim for personal injury or wrongfuldeath, and upon the unsolicited written request of the employee or estate, thedepartment may commence such an action on behalf of the employee or hisestate. From any amounts recovered under this subsection, the state isentitled to an amount equal to all sums awarded as benefits to the employee orhis estate and all anticipated future medical costs. Any excess recovery shallbe paid to the injured employee or his estate.

 

(f) The department or employer shall have an additional six (6)month limitation period beyond the date on which the employee or his estate isbarred under the statute of limitations from commencing a claim for personalinjury or wrongful death, in which to commence such an action on behalf of theemployee or his estate. From any amounts recovered under this subsection, thestate is entitled to an amount equal to all sums awarded as benefits to theemployee or his estate, all anticipated future medical costs and all costs oflitigation. Any excess recovery shall be paid to the injured employee or hisestate.

 

(g) For purposes of subsections (e) and (f) of this section,nothing in this section prohibits any third party from reimbursing the worker'scompensation account for medical or temporary total disability costs withoutprejudice prior to any judgment, settlement or release.

 

27-14-106. Minor employee to be free of any legal disability.

 

Aminor shall be deemed free of any legal disability for the purposes of this actand no other person has any cause of action or right to compensation for hisinjury except as expressly provided in this act.

 

27-14-107. Repealed by Laws 1995, ch. 121, 3.

 

27-14-108. Extrahazardous industries, employments, occupations;enumeration; definitions; optional coverage.

 

(a) This act applies to the following, which shall be deemedextrahazardous employment:

 

(i) Repealed by Laws 2002, Ch. 30, 2.

 

(ii) Regardless of individual occupation, all workers employedin the following sectors, subsectors, industry groups and industries, as eachis defined in the most recent edition of the North American IndustryClassification System (NAICS) manual:

 

(A) Agriculture, sector 11:

 

(I) Subsector 113, forestry and logging:

 

(1) Industry group 1133, logging.

 

(B) Mining, sector 21;

 

(C) Utilities, sector 22;

 

(D) Construction, sector 23;

 

(E) Manufacturing, sector 31-33;

 

(F) Wholesale trade, sector 42:

 

(I) Subsector 422, wholesale trade, nondurable goods:

 

(1) Industrygroup 4225, farm product raw materials, wholesale;

 

(2) Industrygroup 4226, chemical and allied products, wholesale;

 

(3) Industrygroup 4227, petroleum and petroleum products, wholesale;

 

(4) Industrygroup 4228, beer, wine, and distilled alcoholic beverages, wholesale;

 

(5) Industry group4229, miscellaneous nondurable goods, wholesale.

 

(G) Retail trade, sector 44-45:

 

(I) Subsector 441, motor vehicle and parts dealer;

 

(II) Subsector 444, building materials and garden equipment andsupplies:

 

(1) Industrygroup 4441, building materials and supplies dealers:

 

a. NAICSindustry 44419, other building materials.

 

(III) Subsector 445, food and beverage stores:

 

(1) Industrygroup 4452, specialty food stores:

 

a. NAICSindustry 44521, meat markets;

 

b. NAICSindustry 44522, fish and seafood markets;

 

c. NAICSindustry 44529, other specialty stores.

 

(IV) Subsector 447, gasoline stations;

 

(V) Subsector 454, nonstore retailers:

 

(1) Industrygroup 4543, direct selling establishments:

 

a. NAICSindustry 45431, fuel dealers.

 

(H) Transportation and warehousing, sector 48-49:

 

(I) Subsector 481, air transportation;

 

(II) Subsector 484, truck transportation;

 

(III) Subsector 485, urban transit systems;

 

(IV) Subsector 486, pipeline transportation;

 

(V) Subsector 491, postal service;

 

(VI) Subsector 492, couriers and messengers;

 

(VII) Subsector 493, warehousing and storage.

 

(J) Information, sector 51:

 

(I) Subsector 511, publishing industries:

 

(1) Industrygroup 5111, newspaper, periodical, book and database publishers.

 

(K) Real estate and rental and leasing, sector 53:

 

(I) Subsector 531, real estate:

 

(1) Industry group 5311, lessors of real estate.

 

(II) Subsector 532, rental and leasing services:

 

(1) Industrygroup 5321, automotive equipment rental and leasing.

 

(M) Administrative and support and waste management andremediation services, sector 56:

 

(I) Subsector 561, administrative and support services:

 

(1) Industrygroup 5616, investigation, guard and armored car services;

 

(2) Industrygroup 5617, services to buildings and dwellings.

 

(II) Subsector 562, waste management and remediation services.

 

(N) Educational services, sector 61:

 

(I) Subsector 611, educational services:

 

(1) Industry group 6116, other schools and instruction:

 

a. NAICS industry 61161, fine arts schools;

 

b. NAICS industry 61162, sports and recreation instruction;

 

c. NAICS industry 61169, all other schools and instruction:

 

i. United States NAICS industry 611692, automobile driving schools.

 

(O) Health care and social services, sector 62:

 

(I) Subsector 621, ambulatory health care services;

 

(II) Subsector 622, hospitals;

 

(III) Subsector 623, nursing and residential care facilities;

 

(IV) Subsector 624, social assistance:

 

(1) Industry group 6241, individual and family services;

 

(2) Industry group 6242, community food and housing, and emergency and other reliefservices;

 

(3) Industry group 6243, vocational rehabilitation services.

 

(P) Except as provided under subsection (o) of this section,arts, entertainment and recreation, sector 71;

 

(Q) Accommodation and food services, sector 72;

 

(R) Other services (except public administration), sector 81:

 

(I) Subsector 811, repair and maintenance;

 

(II) Subsector 812, personal and laundry services:

 

(1) Industrygroup 8123, dry-cleaning and laundry services;

 

(2) Industrygroup 8129, other personal services:

 

a. NAICSindustry 81291, pet care (except veterinary services).

 

(S) Public administration, sector 92:

 

(I) Subsector 922, justice, public order and safety activities:

 

(1) Industry group 9221, justice, public order and safety activities:

 

a. NAICSindustry 92212, police protection;

 

b. NAICSindustry 92214, correctional institutions;

 

c. NAICSindustry 92215, fire protection, including firefighters while performing underthe direction of a duly authorized officer in charge and engaged in competitionat employer sanctioned training events, construction, maintenance orimprovement of equipment or facilities utilized in fire protection activities,fundraising, civic affairs or other similar authorized activities.

 

(II) Subsector 923, administration of human resource programs:

 

(1) Industrygroup 9231, administration of human resource programs:

 

a. NAICSindustry 92312, administration of public health programs;

 

b. NAICSindustry 92313, administration of human resource programs (except education,public health and veterans' affairs programs);

 

c. NAICSindustry 92314, administration of veterans' affairs.

 

(III) Subsector 924, administration of environmental qualityprograms.

 

(b) Repealed by Laws 1992, ch. 33, 2.

 

(c) Repealed By Laws 1996, ch. 71, 2, 1995, ch. 121, 3.

 

(d) This act applies to governmental entities engaged in anindustrial classification listed under subsection (a) of this section and toemployees of governmental entities engaged in or employed as the following:

 

(i) Janitors, groundskeepers and maintenance workers;

 

(ii) Federal programs which require coverage for theirparticipants;

 

(iii) State employees and effective until June 30, 2002,employees of the University of Wyoming while traveling in the performance oftheir duties;

 

(iv) Repealed By Laws 2001, Ch. 132, 2.

 

(v) Repealed By Laws 2001, Ch. 132, 2.

 

(vi) Casual employees engaged in fighting forest or grass fireswhen employed by a governmental entity;

 

(vii) Applicants or recipients of general welfare or relief whoare employed by a governmental entity;

 

(viii) Repealed By Laws 2001, Ch. 132, 2.

 

(ix) All adult and juvenile prisoners and probationers whenperforming work pursuant to law or court order;

 

(x) Diagnostic and analytical laboratory employees;

 

(xi) Hazardous substance workers;

 

(xii) Power equipment operators;

 

(xiii) Motor delivery drivers;

 

(xiv) Workshop employees;

 

(xv) Persons performing community service pursuant to a criminalsentencing order or a diversion agreement entered into with a prosecutingauthority, if the governing body of the jurisdiction for whom the service isperformed has made a prior written election of coverage for the communityservice work;

 

(xvi) Public school educational assistants who provide servicesto special education students;

 

(xvii) County coroners and deputy county coroners;

 

(xviii) Fire protection, including firefighters while performingunder the direction of a duly authorized officer in charge and engaged incompetition at employer sanctioned training events, construction, maintenanceor improvement of equipment or facilities utilized in the fire protectionactivities, fundraising, civic affairs or similar authorized activities.

 

(e) Specifically enumerated volunteers to whom this act appliesare:

 

(i) Firefighters while:

 

(A) Firefighting;

 

(B) Performing rescue work;

 

(C) Participating in a hazardous material response;

 

(D) Responding to any other situation where the health orsafety of the public is at risk;

 

(E) Training for the activities enumerated in subparagraphs (A)through (D) and (F) of this paragraph, including while engaged in competitionat employer sanctioned training events;

 

(F) Constructing, maintaining or improving equipment orfacilities utilized in the activities enumerated in subparagraphs (A) through(E) of this paragraph; or

 

(G) Performing under the direction of a duly authorized officerin charge and engaged in fundraising, civic affairs or other similar authorizedactivities.

 

(ii) Search and rescue personnel;

 

(iii) Law enforcement personnel;

 

(iv) Search pilots;

 

(v) Mine rescue workers;

 

(vi) Ambulance personnel;

 

(vii) Hazardous substance workers;

 

(viii) Emergency management agency personnel;

 

(ix) Elected county or local officials volunteering to performgovernmental services on behalf of the jurisdiction to which they are elected,where the services are outside of the elected officials' regular duties, if thegoverning body of the jurisdiction has made a prior written election ofcoverage for the volunteer work;

 

(x) Volunteers working on projects approved by the Wyoming gameand fish commission;

 

(xi) Law enforcement aides while:

 

(A) Conducting patrols, reporting suspicious activities orcontrolling traffic and crowds on an authorized work schedule agreed to by andwithin the jurisdiction of the law enforcement agency to which the volunteerservice is provided;

 

(B) Training under the auspices of a law enforcement agency.

 

(f) As used in this section:

 

(i) Repealed by Laws 1992, ch. 33, 2.

 

(ii) "Diagnostic and analytical laboratory employees"means all laboratory personnel handling or analyzing or otherwise exposed toinfections, chemical or biological hazardous materials or employed in alaboratory in which infections, chemical or biological hazardous materials arehandled or stored;

 

(iii) Repealed By Laws 1999, ch. 46, 2.

 

(iv) "Workshop" means any location where power drivenmachinery is used and manual labor is exercised by way of trade or gain orotherwise incidental to the process of making, altering, repairing, printing orornamenting, finishing or adapting for sale or otherwise any article or part ofarticle, over which location the employer of the person working at the locationhas the right of access or control. Workshop includes any location where powermachinery is being used and manual labor is exercised for recycling, crushing,incinerating, disposal or otherwise altering any article including but notlimited to, paper products, metal, glass, rubber and plastic, over whichlocation the employer of the person working at the location has the right ofaccess or control. A workshop does not include any location on which onlyoffice fans, typewriters, adding machines, calculators, computers, dictaphonesor other similar equipment driven by electric motors are operated which aresufficiently protected not to constitute a hazard to employees;

 

(v) Repealed by Laws 1992, ch. 33, 2.

 

(vi) "Power equipment operator" means any worker whooperates power machinery;

 

(vii) "Mine rescue team" means mine rescue workers andthe employers of the workers performing actual rescue operations or trainingrescue operations at any underground mine pursuant to the consent of the ownerof the mine and the employers of the members of the team. Mine rescue teammembers while engaged in mine rescue operations and training, shall beconsidered employees of the employer at whose mine they engage in mine rescuework;

 

(viii) "Hazardous substance" means those substancesdesignated or enumerated within the notification of hazardous waste activitypublication of the federal environmental protection agency;

 

(ix) "Hazardous substance worker" means a trainedemployee or volunteer involved with performing emergency response and postemergency response operations for the release or substantial threat of releaseof hazardous substances.

 

(g) This act does not apply to the following:

 

(i) Repealed by Laws 1995, ch. 121, 3.

 

(ii) Repealed By Laws 1995, ch. 121, 3.

 

(iii) Repealed By Laws 1995, ch. 121, 3.

 

(iv) Repealed By Laws 2006, Chapter 2, 2.

 

(v) through (ix) Repealed by Laws 1995, ch. 121, 3.

 

(vi) Repealed By Laws 1995, ch. 121, 3.

 

(vii) Repealed By Laws 1995, ch. 121, 3.

 

(viii) Repealed By Laws 1995, ch. 121, 3.

 

(ix) Repealed By Laws 1995, ch. 121, 3.

 

(x) Those individuals excluded as an employee under W.S.27-14-102(a)(vii)(A) through (O).

 

(h) Repealed by Laws 2002, Ch. 30, 2.

 

(j) Any employee not enumerated under subsections (a) through(g) of this section or not employed in an extrahazardous employment enumeratedunder this section may be covered and subject to the provisions of this act andhis employment shall be treated as if extrahazardous for purposes of this act,if his employer elects to obtain coverage under this act and makes payments asrequired by this act. An employer electing coverage pursuant to this subsectionmay only elect to cover all his employees. An employer may withdraw coverageelected under this subsection at any time if the elected coverage has been ineffect for at least two (2) years and the employer is current on allcontributions and payments required under this act.

 

(k) Any corporation, limited liability company, partnership orsole proprietorship may elect to obtain coverage under this act for any or allof its corporate officers, limited liability company members, partners in apartnership or sole proprietor by notifying the division in writing of itselection upon initial registration with the division, or thirty (30) days priorto the beginning of a calendar quarter. Any employer electing coveragepursuant to this subsection shall simultaneously elect coverage for itsemployees, as provided in subsection (j) of this section, if those employeesare not already covered under this act. Notwithstanding subsection (j) of thissection, an employer shall not withdraw coverage at any time during thesubsequent eight (8) calendar quarters. Application for termination of coverageunder this subsection shall be filed in writing with the division. Terminationof coverage shall be effective the first day of the month following thedivision's receipt of the notice of termination which shall specify whether thetermination is for the officers, members and partners or for the officers,members, partners and all electively covered employees.

 

(m) Any employer may elect to obtain coverage under this actfor school-to-work participants engaging in program activities at his place ofbusiness in accordance with rules and regulations of the division.

 

(n) Repealed by Laws 2002, Ch. 10, 2.

 

(o) Notwithstanding subparagraph (a)(ii)(P) of this section andupon request of an employer, the department may exclude employment fromcoverage under this act if it determines the primary source of revenue of theemployer's business is derived from operations classified under subparagraph(a)(ii)(P) of this section and any of the following industries:

 

(i) Agriculture, forestry, fishing and hunting, sector 11:

 

(A) Subsector 111, crop production;

 

(B) Subsector 112, animal production;

 

(C) Subsector 113, forestry and logging:

 

(I) Industry group 1131, timber tract operations;

 

(II) Industry group 1132, forest nurseries and gathering offorest products.

 

(D) Subsector 115, support activities for agriculture andforestry.

 

(p) Any university of the state of Wyoming or any communitycollege, school district or private or parochial school or college may elect toobtain coverage under this act for any person who may at any time be receivingtraining under any work or job training program for the purpose of training orlearning trades or occupations. The bona fide student so placed shall be deemedan employee of the respective university, community college, school district orprivate or parochial school or college sponsoring the training orrehabilitation program.

 

(q) A team owner shall obtain coverage under this act forprofessional athletes as defined in W.S. 27-14-102(a)(xxix). For the purpose ofdetermining employer contributions under this act, all professional athletesfor whom coverage is obtained are deemed to be paid, for each month duringwhich competition or team practice is held, the average monthly wage mostrecently computed pursuant to W.S. 27-14-802(b). Notwithstanding any otherprovision of law, the division shall classify professional athletes coveredunder this subsection under NAICS industry code number 711211, sports teams andclubs, and shall keep that classification separate for rate making purposes.

 

ARTICLE 2 - PREMIUMS AND RATES

 

27-14-201. Rates and classifications; rate surcharge.

 

(a) The worker's compensation program shall be neither more norless than self-supporting. Employments affected by this act shall be dividedby the division into classes, whose rates may be readjusted annually as thedivision actuarially determines. Any employer may contest his classificationas determined by the division following the contested case provisions of theWyoming Administrative Procedure Act except that the division shall carry theburden of proving that the classification is correct. Information shall be keptof the amounts collected and expended in each class for actuarially determiningrates, but for payment of compensation, the worker's compensation account shallbe one and indivisible.

 

(b) If it is determined at any time and in any manner that adetermination by the division of an industrial or employment classification isincorrect, premiums under any corrected classification shall be charged onlyfrom the date of change in classification. This subsection shall not apply toany employer's categorization of an employee's gross earnings to an industrialor employment classification.

 

(c) Upon compliance with the rate making provisions of theWyoming Administrative Procedure Act and written approval by the governor, thedivision shall determine the hazards of the different classes of employmentsand fix the premiums therefor at the lowest rate consistent with maintenance ofan actuarially sound worker's compensation account and the creation ofactuarially sound surplus and reserves, and for such purpose shall adopt asystem of rating in such a manner as to take account of the peculiar hazard ofeach risk, mathematically and equally based on actual costs to the program interms of number and extent of injuries and deaths, and shall use consultants orrating organizations as it determines necessary. The department shall submit anannual report with respect to proposed annual rate adjustments under thissection to the joint labor, health and social services interim committee nolater than October 1 of the year preceding the implementation of the rateadjustment. The total annual rate adjustment for any employment classificationunder this section is subject to the following limitations:

 

(i) Repealed by Laws 1994, ch. 86, 3.

 

(ii) Repealed by Laws 1994, ch. 86, 3.

 

(iii) Repealed By Laws 1998, ch. 117, 2.

 

(iv) Repealed By Laws 1998, ch. 117, 2.

 

(v) For the calendar year commencing January 1, 1999 and eachcalendar year thereafter, any increase in the base rate for each employmentclassification shall not exceed fifty percent (50%) of the base rate imposedfor that employment classification during the immediately preceding year;

 

(vi) To compensate for the difference between revenues generatedunder base rate adjustment limitations imposed under paragraph (c)(v) of thissection and revenues which would have been generated if base rates had beenadjusted without limitations, the division may limit base rate decreases forany employment classification by not more than fifty percent (50%) of theactuarially determined decrease;

 

(vii) Repealed By Laws 1998, ch. 117, 2.

 

(viii) In determining rates under this section for employersspecified under W.S. 27-14-108(a)(ii)(G)(I), the division shall base the rateson one (1) rate classification for sales personnel and one (1) rateclassification for all other personnel other than clerical;

 

(ix) Notwithstanding paragraph (v) of this subsection, for thecalendar year beginning January 1, 2003, rates shall be adjusted to reflect thereclassification of industry codes in accordance with the North AmericanIndustry Classification System (NAICS) manual, but in no case shall the basepremium rate for any classification for the calendar year beginning January 1,2003 exceed one hundred fifty percent (150%) of the lowest base rate assignedto any employer in that classification under the standard industrialclassification manual for the preceding year.

 

(d) In addition, the plan of rating shall use an experiencerating system based on three (3) years claim experience, or as much thereof asis available, for employers enrolled under it. This system shall rewardemployers with a better than average claim experience, penalize employers witha worse than average claim experience and may provide for premium volumediscount so long as the account remains actuarially sound. Discounts from orpenalties added to base employment classification rates because of claimexperience shall not exceed sixty-five percent (65%). The experience rating ofthe employer against whom a claim is made shall be charged only that proportionof total benefits payable equal to the percentage that employment with thatemployer contributes to the cause of the injury.

 

(e) The division in fixing rates shall provide for the costs ofbenefits and the expenses of administering the worker's compensation accountallowed by law, subject to the following:

 

(i) The account shall be one (1) account but shall includeprovision for all expenses allowed by this act, loss adjustment expenses andunpaid losses, including:

 

(A) Case reserves;

 

(B) Future development on known claims;

 

(C) Reopened claims reserve;

 

(D) Claims incurred but not reported;

 

(E) Claims incurred and reported but not yet recorded;

 

(F) An actuarially reasonable contingency margin to reflect theuncertainty inherent in estimates of unpaid losses and loss adjustmentexpenses.

 

(ii) The account shall be fully reserved on or before December31, 2013;

 

(iii) The division shall annually obtain a report from aqualified actuary rendering an opinion regarding the reasonableness of thebooked loss and loss adjustment expense reserve and carried contingencyreserve;

 

(iv) The division shall provide the opinion required byparagraph (iii) of this subsection to the joint labor, health and socialservices interim committee, or its successor, by November 1 of each year;

 

(v) For purposes of calculating reserves, future liabilitiesshall be discounted to present value using a discount factor selected by thedivision. The discount factor selected by the division and the reason for itsselection shall be included in the annual report to the joint labor, health andsocial services interim committee or its successor;

 

(vi) The collection through premiums of any deficiency inreserves and surpluses that exceeds five percent (5%) of the fund balance shallbe averaged over a ten (10) year period;

 

(vii) For purposes of this section:

 

(A) "Fully reserved" means that the workers'compensation account established by W.S. 27-14-701 has, in the opinion of aqualified actuary, funds sufficient on a discounted basis to provide for allunpaid loss and loss adjustment expenses as well as an actuarially appropriateprovision for adverse contingencies;

 

(B) "Qualified actuary" means a person who

State Codes and Statutes

Statutes > Wyoming > Title27 > Chapter14

CHAPTER 14 - WORKER'S COMPENSATION

 

ARTICLE 1 - GENERALLY

 

27-14-101. Short title; statement of intent.

 

(a) This act may be cited as the "Wyoming Worker'sCompensation Act".

 

(b) It is the intent of the legislature in creating the Wyomingworker's compensation division that the laws administered by it to provide aworker's benefit system be interpreted to assure the quick and efficientdelivery of indemnity and medical benefits to injured and disabled workers at areasonable cost to the employers who are subject to the Worker's CompensationAct. It is the specific intent of the legislature that benefit claims cases bedecided on their merits and that the common law rule of "liberalconstruction" based on the supposed "remedial" basis of workers'benefits legislation shall not apply in these cases. The worker's benefitsystem in Wyoming is based on a mutual renunciation of common law rights and defensesby employers and employees alike. Accordingly, the legislature declares thatthe Worker's Compensation Act is not remedial in any sense and is not to begiven a broad liberal construction in favor of any party.

 

27-14-102. Definitions.

 

(a) As used in this act:

 

(i) "Artificial replacement" means the addition of anartificial part to the human body which replaces a part lost, damaged or inneed of correction, excluding any personal item, artificial heart, automobileor the remodeling of an automobile or other physical structure or any item offurniture except as provided by rule and regulation of the division. If awheelchair is approved by the division for use during impairment or disability,"artificial replacement" may include necessary cost effective physicalstructures such as ramps, automobile devices or remodeling, bars and rails, andother necessary equipment or devices aiding the body during impairment ordisability, subject to the following criteria:

 

(A) A physical structure for which artificial replacement isclaimed shall be the primary residence of the claimant;

 

(B) Only one (1) automobile at a time shall be eligible fordevices or remodeling under this paragraph.

 

(ii) "Ascertainable loss" means that point in time inwhich it is apparent that permanent physical impairment has resulted from acompensable injury, the extent of the physical impairment due to the injury canbe determined and the physical impairment will not substantially improve ordeteriorate because of the injury;

 

(iii) "Child" means any unmarried minor or physicallyor mentally incapacitated individual receiving court ordered support orsubstantially all of his financial support from the employee at the time ofinjury or death of the employee and includes an adopted child, stepchild,posthumous child or acknowledged illegitimate child but does not include aparent or spouse of the employee;

 

(iv) "Delinquent payment" means any payment requiredof an employer under this act which is not paid within thirty (30) days afterthe date due as specified by this act;

 

(v) "Administrator" means the administrator of thedivision;

 

(vi) "Division" means the worker's compensationdivision within the department of employment;

 

(vii) "Employee" means any person engaged in anyextrahazardous employment under any appointment, contract of hire orapprenticeship, express or implied, oral or written, and includes legallyemployed minors, aliens authorized to work by the United States department ofjustice, office of citizenship and immigration services, and aliens whom theemployer reasonably believes, at the date of hire and the date of injury basedupon documentation in the employer's possession, to be authorized to work bythe United States department of justice, office of citizenship and immigrationservices. "Employee" does not include:

 

(A) Any individual whose employment is determined to be casuallabor;

 

(B) A sole proprietor or a partner of a business partnershipunless coverage is elected pursuant to W.S. 27-14-108(k);

 

(C) An officer of a corporation unless coverage is electedpursuant to W.S. 27-14-108(k);

 

(D) Any individual engaged as an independent contractor;

 

(E) A spouse or dependent of an employer living in theemployer's household;

 

(F) A professional athlete, except as provided in W.S.27-14-108(q);

 

(G) An employee of a private household;

 

(H) A private duty nurse engaged by a private party;

 

(J) An employee of the federal government;

 

(K) Any volunteer unless covered pursuant to W.S. 27-14-108(e);

 

(M) Any adult or juvenile prisoner or probationer unlesscovered pursuant to W.S. 27-14-108(d)(ix);

 

(N) An elected public official or an appointed member of anygovernmental board or commission, except for a duly elected or appointedsheriff or county coroner;

 

(O) The owner and operator of a motor vehicle which is leasedor contracted with driver to a for-hire common or contract carrier. Theowner-operator shall not be an employee for purposes of this act if he performsthe service pursuant to a contract which provides that the owner-operator shallnot be treated as an employee for purposes of the Federal InsuranceContributions Act, the Social Security Act, the Federal Unemployment Tax Actand income tax withholding at source;

 

(P) A member of a limited liability company unless coverage iselected pursuant to W.S. 27-14-108(k);

 

(Q) A foster parent providing foster care services for thedepartment of family services or for a certified child placement agency;

 

(R) An individual providing child day care or babysittingservices, whose wages are subsidized or paid in whole or in part by the Wyomingdepartment of family services. This exclusion from coverage does not excludefrom coverage an individual providing child day care or babysitting services asan employee of any individual or entity other than the Wyoming department offamily services.

 

(viii) "Employer" means any person or entity employingan employee engaged in any extrahazardous occupation or electing coverage underW.S. 27-14-108(j) and at least one (1) of whose employees is described in W.S.27-14-301. "Employer" includes:

 

(A) Repealed By Laws 1999, ch. 46, 2.

 

(B) The governmental entity for which recipients of publicassistance perform work if that work does not otherwise establish a coveredemployer and employee relationship;

 

(C) The governmental entity for which volunteers perform thespecified volunteer activities under W.S. 27-14-108(e);

 

(D) The governmental entity for which prisoners andprobationers work or perform community service under W.S. 27-14-108(d)(ix) or(xv);

 

(E) An owner-operator of a mine at which any mine rescueoperation or training occurs;

 

(F) A temporary service contractor for a temporary worker;

 

(G) Any person, contractor, firm, association or corporation otherwisequalifying under this paragraph as an employer and who utilizes the services ofa worker furnished by another contractor, joint employer, firm, association,person or corporation other than a temporary service contractor, jointemployer, independent contractor or owner and operator excluded as an employeeunder subparagraph (a)(vii)(O) of this section;

 

(H) Any employer otherwise qualifying under this paragraph asan employer and participating in a school-to-work program approved by thedepartment of workforce services, any local school district board of trustees,community college district board of trustees or the department of education,and the employer previously elected coverage in writing pursuant to W.S.27-14-108(m).

 

(ix) "Gross earnings" means remuneration payable forservices from any source including commissions, bonuses and cash and excludingtips and gratuities. The reasonable cash value of remuneration other than cashor check shall be prescribed by rule and regulation of the division. To theextent the following are not considered wages under 26 U.S.C. 3301 through3311, "gross earnings" does not include:

 

(A) Any premium paid by an employer under a plan, system orinto a fund for insurance or annuities to provide an employee or class ofemployees retirement, sickness or accident disability, medical andhospitalization expenses for sickness or accident disability or death benefitsif the employee cannot receive any part of this payment instead of the deathbenefit or any part of the premium if the benefit is insured and cannot assignor receive cash instead of the benefit upon withdrawal from or termination ofthe plan, system, policy or services with the employer;

 

(B) A payment by an employer not deducted from an employee's remunerationfor the tax imposed under 26 U.S.C. 3101;

 

(C) Any dismissal payment which the employer is not obligatedto make;

 

(D) The value of any meals or lodging furnished by and for theconvenience of the employer to the employee if the meals are furnished on thebusiness premises of the employer or in the case of lodging, the employee isrequired to accept lodging on the business premises of his employer as acondition of his employment;

 

(E) Remuneration received by an employee as sick pay followinga six (6) month continuous period of illness;

 

(F) Any benefit received under a cafeteria plan specified by 26U.S.C. 125, excluding cash;

 

(G) Wages of a deceased worker paid to a beneficiary or estatefollowing the calendar year of the worker's death;

 

(H) Services received under any dependent care assistanceprogram to the extent excluded from gross income under 26 U.S.C. 129;

 

(J) Wages paid to a disabled worker during the year followingthe year in which he became entitled to disability insurance benefits under theSocial Security Act;

 

(K) Services or benefits received under any educationalassistance program;

 

(M) Any benefit or other value received under an employeeachievement award;

 

(N) The value of any qualified group legal services plan to theextent payments are excludable from gross income under 26 U.S.C. 120;

 

(O) Costs of group term-life insurance;

 

(P) Any loan repayment which is repaid at interest rates belowestablished market rates;

 

(Q) Any moving expenses;

 

(R) Employer contributions to any qualified retirement orpension plan or individual retirement account and distributions from qualifiedretirement and pension plans and annuities under 26 U.S.C. 403(b);

 

(S) Benefit payments under any supplemental unemploymentcompensation plan; and

 

(T) Any benefits paid under this act or any other worker'scompensation law of another state.

 

(x) "Health care provider" means doctor of medicine,chiropractic or osteopathy, dentist, optometrist, podiatrist, psychologist oradvanced practitioner of nursing, acting within the scope of his license,licensed to practice in this state or in good standing in his home state;

 

(xi) "Injury" means any harmful change in the humanorganism other than normal aging and includes damage to or loss of anyartificial replacement and death, arising out of and in the course ofemployment while at work in or about the premises occupied, used or controlledby the employer and incurred while at work in places where the employer's businessrequires an employee's presence and which subjects the employee toextrahazardous duties incident to the business. "Injury" does notinclude:

 

(A) Any illness or communicable disease unless the risk ofcontracting the illness or disease is increased by the nature of theemployment;

 

(B) Injury caused by:

 

(I) The fact the employee is intoxicated or under the influenceof a controlled substance, or both, except any prescribed drug taken asdirected by an authorized health care provider. The division shall define"intoxicated" and "under the influence of a controlledsubstance" for purposes of this subparagraph in its rules and regulations;or

 

(II) The employee's willful intention to injure or kill himselfor another.

 

(C) Injury due solely to the culpable negligence of the injuredemployee;

 

(D) Any injury sustained during travel to or from employmentunless the employee is reimbursed for travel expenses or is transported by avehicle of the employer;

 

(E) Any injury sustained by the prisoner during or any harmresulting from any illegal activity engaged in by prisoners held under custody;

 

(F) Any injury or condition preexisting at the time ofemployment with the employer against whom a claim is made;

 

(G) Any injury resulting primarily from the natural agingprocess or from the normal activities of day-to-day living, as established bymedical evidence supported by objective findings;

 

(H) Any injury sustained while engaged in recreational orsocial events under circumstances where an employee was under no duty to attendand where the injury did not result from the performance of tasks related tothe employee's normal job duties or as specifically instructed to be performedby the employer; or

 

(J) Any mental injury unless it is caused by a compensablephysical injury, it occurs subsequent to or simultaneously with, the physicalinjury and it is established by clear and convincing evidence, which shallinclude a diagnosis by a licensed psychiatrist or licensed clinical psychologistmeeting criteria established in the most recent edition of the diagnostic andstatistical manual of mental disorders published by the American PsychiatricAssociation. In no event shall benefits for a compensable mental injury bepaid for more than six (6) months after an injured employee's physical injuryhas healed to the point that it is not reasonably expected to substantiallyimprove.

 

(xii) "Medical and hospital care" when provided by ahealth care provider means any reasonable and necessary first aid, medical,surgical or hospital service, medical and surgical supplies, apparatus,essential and adequate artificial replacement, body aid during impairment,disability or treatment of an employee pursuant to this act including therepair or replacement of any preexisting artificial replacement, hearing aid,prescription eyeglass lens, eyeglass frame, contact lens or dentures if thedevice is damaged or destroyed in an accident and any other health services orproducts authorized by rules and regulations of the division. "Medicaland hospital care" does not include any personal item, automobile or theremodeling of an automobile or other physical structure, public or privatehealth club, weight loss center or aid, experimental medical or surgical procedure,item of furniture or vitamin and food supplement except as provided under ruleand regulation of the division and paragraph (a)(i) of this section forimpairments or disabilities requiring the use of wheelchairs;

 

(xiii) "Nonresident employer" means:

 

(A) An individual who was not domiciled in Wyoming for at leasttwelve (12) months prior to commencing operations in the state; or

 

(B) A partnership or other association if any member does notqualify under subparagraph (A) of this paragraph; or

 

(C) A corporation in which more than three-fourths (3/4) of thecapital stock is owned by individuals who do not qualify under subparagraph (A)of this paragraph; and

 

(D) A person who uses or employs covered individuals in Wyomingand who has not been a continuous contributor under this act for twelve (12)months preceding the use or employment.

 

(xiv) "Payroll" means "gross earnings" asdefined under paragraph (a)(ix) of this section;

 

(xv) "Permanent partial disability" means the economicloss to an injured employee, measured as provided under W.S. 27-14-405(j),resulting from a permanent physical impairment;

 

(xvi) "Permanent total disability" means the loss ofuse of the body as a whole or any permanent injury certified under W.S.27-14-406, which permanently incapacitates the employee from performing work atany gainful occupation for which he is reasonably suited by experience ortraining;

 

(xvii) "Spouse" means any individual legally married toan employee at the time of injury or death;

 

(xviii) "Temporary total disability" means that period oftime an employee is temporarily and totally incapacitated from performingemployment at any gainful employment or occupation for which he is reasonablysuited by experience or training. The period of temporary total disabilityterminates at the time the employee completely recovers or qualifies forbenefits under W.S. 27-14-405 or 27-14-406;

 

(xix) "Joint employer" means any person, firm,corporation or other entity which employs joint employees, is associated byownership, commonly managed or controlled and contributes to the worker'scompensation account as required by this act;

 

(xx) "Employer making contributions required by thisact" means the employee's employer and any joint employer when theemployer or any joint employer reports the employee's wages to the division onan account or through a consolidated worker's compensation account andcontributions are made to the account as required by this act;

 

(xxi) "Joint employee" means any person:

 

(A) Who has an express or implied contract for employment withmore than one (1) joint employer at the same time;

 

(B) Whose work is controlled by more than one (1) jointemployer; and

 

(C) Who is engaged in the performance of work for more than one(1) joint employer.

 

(xxii) "Consolidated Wyoming worker's compensationaccount" means an account maintained by the Wyoming workers' compensationdivision to which an employer reports the wages of its employees and jointemployees for its own account and the account of its joint employers, pursuantto which contributions are made to the account as required by this act;

 

(xxiii) "Independent contractor" means an individual whoperforms services for another individual or entity and:

 

(A) Is free from control or direction over the details of theperformance of services by contract and by fact;

 

(B) Repealed By Laws 1998, ch. 117, 2.

 

(C) Represents his services to the public as a self-employedindividual or an independent contractor; and

 

(D) May substitute another person to perform his services.

 

(xxiv) "Casual labor" means service of less than two (2)consecutive weeks and not within the normal course of business;

 

(xxv) "Temporary service contractor" means any person,firm, association or corporation conducting a business that employs individualsdirectly for the purpose of furnishing services of the employed individuals ona temporary basis to others;

 

(xxvi) "Temporary worker" means a worker whose servicesare furnished to another employer on a temporary basis to substitute for apermanent employee on leave or to meet an emergency or short-term workload;

 

(xxvii) "This act" means W.S. 27-14-101 through27-14-805;

 

(xxviii) "State employee" means any individual enteringinto service of or working under an employment contract with any agency of thestate of Wyoming for which compensation is paid or which qualifies theindividual to participate in the state retirement account. Effective on andafter July 1, 2002, "state employee" shall include the University ofWyoming;

 

(xxix) "Professional athlete" means an individual whoreceives payment from a team owner for competing on a baseball, basketball,football, hockey or soccer team having its principal place of business inWyoming;

 

(xxx) For purposes of W.S. 27-14-207 and 27-14-806,"person" means as defined in W.S. 8-1-102.

 

27-14-103. Repealed by Laws 1991, ch. 190, 2.

 

27-14-104. Exclusive remedy as to employer; nonliability ofco-employees; no relief from liability; rights as to delinquent ornoncontributing employer.

 

(a) The rights and remedies provided in this act for anemployee including any joint employee, and his dependents for injuries incurredin extrahazardous employments are in lieu of all other rights and remedies againstany employer and any joint employer making contributions required by this act,or their employees acting within the scope of their employment unless theemployees intentionally act to cause physical harm or injury to the injuredemployee, but do not supersede any rights and remedies available to an employeeand his dependents against any other person.

 

(b) No contract, rule, regulation or device shall operate torelieve an employer from any liability created by this act except as otherwiseprovided by this act.

 

(c) This act does not limit or affect any right or action byany employee and his dependents against an employer for injuries received whileemployed by the employer when the employer at the time of the injuries has notqualified under this act for the coverage of his eligible employees, or havingqualified, has not paid the required premium on an injured employee's earningswithin thirty (30) days of the date due. When an employee's employment startswithin the same month as the injury, the status of delinquency or notcontributing shall not apply until after the regular payroll reporting date.

 

27-14-105. Action against third party; notice; subrogation; legalrepresentation; payment under reservation of rights; actions by department.

 

(a) If an employee covered by this act receives an injury undercircumstances creating a legal liability in some person other than the employerto pay damages, the employee if engaged in work for his employer at the time ofthe injury is not deprived of any compensation to which he is entitled underthis act. He may also pursue his remedy at law against the third party or thecoemployee to the extent permitted by W.S. 27-14-104(a). Except as provided bysubsections (b), (e) and (f) of this section, if the employee recovers from thethird party or the coemployee in any manner including judgment, compromise,settlement or release, the state is entitled to be reimbursed for all paymentsmade, or to be made, to or on behalf of the employee under this act but not toexceed one-third (1/3) of the total proceeds of the recovery without regard tothe types of damages alleged in the third-party action. Any recovery by thestate shall be reduced pro rata for attorney fees and costs in the sameproportion as the employee is liable for fees and costs. All money received bythe state under this section shall be credited to the worker's compensationaccount and considered in computing the employer's experience rating.

 

(b) The director and the attorney general shall be served bycertified mail return receipt requested with a copy of the complaint filed inany suit initiated pursuant to subsection (a) of this section. Service of thecomplaint on the director and attorney general is a jurisdictional requirement in order to maintain the suit. The director and the attorney general shall benotified in writing by certified mail return receipt requested of any judgment,compromise, settlement or release entered into by an employee. Before offeringsettlement to an employee, a third party or its insurer shall notify the stateof the proposed settlement and give the state fifteen (15) days after receiptof such notice in which to object. If notice of proposed settlement is notprovided, the state is entitled to initiate an independent action against thethird party or its insurer for all payments made to and any amount reserved foror on behalf of the employee under this act. If there is a settlement,compromise or release entered into by the parties in claims against a personother than the employer, the attorney general representing the director shallbe made a party in all such negotiations for settlement, compromise orrelease. The attorney general and the director, for purposes of facilitatingcompromise and settlement, may in a proper case authorize acceptance by thestate of less than the state's claim for reimbursement. The proceeds of anyjudgment, settlement, compromise or release are encumbered by a continuing lienin favor of the state to the extent of the total amount of the state's claimfor reimbursement under this section and for all current and future benefitsunder this act. The lien shall remain in effect until the state is paid theamount authorized under this section. In addition the person paying thesettlement remains liable to the state for the state's claim unless the statethrough the attorney general signs the release prior to payment of an agreedsettlement.

 

(c) If the injury causes the death of the employee, the rightsand remedies in this section inure to and the obligations are binding upon thepersonal representative of the deceased employee for the benefit of hisdependents.

 

(d) Any attorney who fails to notify the director and attorneygeneral of any settlement or fails to ensure the state receives its share ofthe proceeds of any settlement or judgment under subsection (a) of this sectionshall be reported to the grievance committee of the Wyoming state bar.

 

(e) At any time before the statute of limitation bars anemployee or his estate from commencing a claim for personal injury or wrongfuldeath, and upon the unsolicited written request of the employee or estate, thedepartment may commence such an action on behalf of the employee or hisestate. From any amounts recovered under this subsection, the state isentitled to an amount equal to all sums awarded as benefits to the employee orhis estate and all anticipated future medical costs. Any excess recovery shallbe paid to the injured employee or his estate.

 

(f) The department or employer shall have an additional six (6)month limitation period beyond the date on which the employee or his estate isbarred under the statute of limitations from commencing a claim for personalinjury or wrongful death, in which to commence such an action on behalf of theemployee or his estate. From any amounts recovered under this subsection, thestate is entitled to an amount equal to all sums awarded as benefits to theemployee or his estate, all anticipated future medical costs and all costs oflitigation. Any excess recovery shall be paid to the injured employee or hisestate.

 

(g) For purposes of subsections (e) and (f) of this section,nothing in this section prohibits any third party from reimbursing the worker'scompensation account for medical or temporary total disability costs withoutprejudice prior to any judgment, settlement or release.

 

27-14-106. Minor employee to be free of any legal disability.

 

Aminor shall be deemed free of any legal disability for the purposes of this actand no other person has any cause of action or right to compensation for hisinjury except as expressly provided in this act.

 

27-14-107. Repealed by Laws 1995, ch. 121, 3.

 

27-14-108. Extrahazardous industries, employments, occupations;enumeration; definitions; optional coverage.

 

(a) This act applies to the following, which shall be deemedextrahazardous employment:

 

(i) Repealed by Laws 2002, Ch. 30, 2.

 

(ii) Regardless of individual occupation, all workers employedin the following sectors, subsectors, industry groups and industries, as eachis defined in the most recent edition of the North American IndustryClassification System (NAICS) manual:

 

(A) Agriculture, sector 11:

 

(I) Subsector 113, forestry and logging:

 

(1) Industry group 1133, logging.

 

(B) Mining, sector 21;

 

(C) Utilities, sector 22;

 

(D) Construction, sector 23;

 

(E) Manufacturing, sector 31-33;

 

(F) Wholesale trade, sector 42:

 

(I) Subsector 422, wholesale trade, nondurable goods:

 

(1) Industrygroup 4225, farm product raw materials, wholesale;

 

(2) Industrygroup 4226, chemical and allied products, wholesale;

 

(3) Industrygroup 4227, petroleum and petroleum products, wholesale;

 

(4) Industrygroup 4228, beer, wine, and distilled alcoholic beverages, wholesale;

 

(5) Industry group4229, miscellaneous nondurable goods, wholesale.

 

(G) Retail trade, sector 44-45:

 

(I) Subsector 441, motor vehicle and parts dealer;

 

(II) Subsector 444, building materials and garden equipment andsupplies:

 

(1) Industrygroup 4441, building materials and supplies dealers:

 

a. NAICSindustry 44419, other building materials.

 

(III) Subsector 445, food and beverage stores:

 

(1) Industrygroup 4452, specialty food stores:

 

a. NAICSindustry 44521, meat markets;

 

b. NAICSindustry 44522, fish and seafood markets;

 

c. NAICSindustry 44529, other specialty stores.

 

(IV) Subsector 447, gasoline stations;

 

(V) Subsector 454, nonstore retailers:

 

(1) Industrygroup 4543, direct selling establishments:

 

a. NAICSindustry 45431, fuel dealers.

 

(H) Transportation and warehousing, sector 48-49:

 

(I) Subsector 481, air transportation;

 

(II) Subsector 484, truck transportation;

 

(III) Subsector 485, urban transit systems;

 

(IV) Subsector 486, pipeline transportation;

 

(V) Subsector 491, postal service;

 

(VI) Subsector 492, couriers and messengers;

 

(VII) Subsector 493, warehousing and storage.

 

(J) Information, sector 51:

 

(I) Subsector 511, publishing industries:

 

(1) Industrygroup 5111, newspaper, periodical, book and database publishers.

 

(K) Real estate and rental and leasing, sector 53:

 

(I) Subsector 531, real estate:

 

(1) Industry group 5311, lessors of real estate.

 

(II) Subsector 532, rental and leasing services:

 

(1) Industrygroup 5321, automotive equipment rental and leasing.

 

(M) Administrative and support and waste management andremediation services, sector 56:

 

(I) Subsector 561, administrative and support services:

 

(1) Industrygroup 5616, investigation, guard and armored car services;

 

(2) Industrygroup 5617, services to buildings and dwellings.

 

(II) Subsector 562, waste management and remediation services.

 

(N) Educational services, sector 61:

 

(I) Subsector 611, educational services:

 

(1) Industry group 6116, other schools and instruction:

 

a. NAICS industry 61161, fine arts schools;

 

b. NAICS industry 61162, sports and recreation instruction;

 

c. NAICS industry 61169, all other schools and instruction:

 

i. United States NAICS industry 611692, automobile driving schools.

 

(O) Health care and social services, sector 62:

 

(I) Subsector 621, ambulatory health care services;

 

(II) Subsector 622, hospitals;

 

(III) Subsector 623, nursing and residential care facilities;

 

(IV) Subsector 624, social assistance:

 

(1) Industry group 6241, individual and family services;

 

(2) Industry group 6242, community food and housing, and emergency and other reliefservices;

 

(3) Industry group 6243, vocational rehabilitation services.

 

(P) Except as provided under subsection (o) of this section,arts, entertainment and recreation, sector 71;

 

(Q) Accommodation and food services, sector 72;

 

(R) Other services (except public administration), sector 81:

 

(I) Subsector 811, repair and maintenance;

 

(II) Subsector 812, personal and laundry services:

 

(1) Industrygroup 8123, dry-cleaning and laundry services;

 

(2) Industrygroup 8129, other personal services:

 

a. NAICSindustry 81291, pet care (except veterinary services).

 

(S) Public administration, sector 92:

 

(I) Subsector 922, justice, public order and safety activities:

 

(1) Industry group 9221, justice, public order and safety activities:

 

a. NAICSindustry 92212, police protection;

 

b. NAICSindustry 92214, correctional institutions;

 

c. NAICSindustry 92215, fire protection, including firefighters while performing underthe direction of a duly authorized officer in charge and engaged in competitionat employer sanctioned training events, construction, maintenance orimprovement of equipment or facilities utilized in fire protection activities,fundraising, civic affairs or other similar authorized activities.

 

(II) Subsector 923, administration of human resource programs:

 

(1) Industrygroup 9231, administration of human resource programs:

 

a. NAICSindustry 92312, administration of public health programs;

 

b. NAICSindustry 92313, administration of human resource programs (except education,public health and veterans' affairs programs);

 

c. NAICSindustry 92314, administration of veterans' affairs.

 

(III) Subsector 924, administration of environmental qualityprograms.

 

(b) Repealed by Laws 1992, ch. 33, 2.

 

(c) Repealed By Laws 1996, ch. 71, 2, 1995, ch. 121, 3.

 

(d) This act applies to governmental entities engaged in anindustrial classification listed under subsection (a) of this section and toemployees of governmental entities engaged in or employed as the following:

 

(i) Janitors, groundskeepers and maintenance workers;

 

(ii) Federal programs which require coverage for theirparticipants;

 

(iii) State employees and effective until June 30, 2002,employees of the University of Wyoming while traveling in the performance oftheir duties;

 

(iv) Repealed By Laws 2001, Ch. 132, 2.

 

(v) Repealed By Laws 2001, Ch. 132, 2.

 

(vi) Casual employees engaged in fighting forest or grass fireswhen employed by a governmental entity;

 

(vii) Applicants or recipients of general welfare or relief whoare employed by a governmental entity;

 

(viii) Repealed By Laws 2001, Ch. 132, 2.

 

(ix) All adult and juvenile prisoners and probationers whenperforming work pursuant to law or court order;

 

(x) Diagnostic and analytical laboratory employees;

 

(xi) Hazardous substance workers;

 

(xii) Power equipment operators;

 

(xiii) Motor delivery drivers;

 

(xiv) Workshop employees;

 

(xv) Persons performing community service pursuant to a criminalsentencing order or a diversion agreement entered into with a prosecutingauthority, if the governing body of the jurisdiction for whom the service isperformed has made a prior written election of coverage for the communityservice work;

 

(xvi) Public school educational assistants who provide servicesto special education students;

 

(xvii) County coroners and deputy county coroners;

 

(xviii) Fire protection, including firefighters while performingunder the direction of a duly authorized officer in charge and engaged incompetition at employer sanctioned training events, construction, maintenanceor improvement of equipment or facilities utilized in the fire protectionactivities, fundraising, civic affairs or similar authorized activities.

 

(e) Specifically enumerated volunteers to whom this act appliesare:

 

(i) Firefighters while:

 

(A) Firefighting;

 

(B) Performing rescue work;

 

(C) Participating in a hazardous material response;

 

(D) Responding to any other situation where the health orsafety of the public is at risk;

 

(E) Training for the activities enumerated in subparagraphs (A)through (D) and (F) of this paragraph, including while engaged in competitionat employer sanctioned training events;

 

(F) Constructing, maintaining or improving equipment orfacilities utilized in the activities enumerated in subparagraphs (A) through(E) of this paragraph; or

 

(G) Performing under the direction of a duly authorized officerin charge and engaged in fundraising, civic affairs or other similar authorizedactivities.

 

(ii) Search and rescue personnel;

 

(iii) Law enforcement personnel;

 

(iv) Search pilots;

 

(v) Mine rescue workers;

 

(vi) Ambulance personnel;

 

(vii) Hazardous substance workers;

 

(viii) Emergency management agency personnel;

 

(ix) Elected county or local officials volunteering to performgovernmental services on behalf of the jurisdiction to which they are elected,where the services are outside of the elected officials' regular duties, if thegoverning body of the jurisdiction has made a prior written election ofcoverage for the volunteer work;

 

(x) Volunteers working on projects approved by the Wyoming gameand fish commission;

 

(xi) Law enforcement aides while:

 

(A) Conducting patrols, reporting suspicious activities orcontrolling traffic and crowds on an authorized work schedule agreed to by andwithin the jurisdiction of the law enforcement agency to which the volunteerservice is provided;

 

(B) Training under the auspices of a law enforcement agency.

 

(f) As used in this section:

 

(i) Repealed by Laws 1992, ch. 33, 2.

 

(ii) "Diagnostic and analytical laboratory employees"means all laboratory personnel handling or analyzing or otherwise exposed toinfections, chemical or biological hazardous materials or employed in alaboratory in which infections, chemical or biological hazardous materials arehandled or stored;

 

(iii) Repealed By Laws 1999, ch. 46, 2.

 

(iv) "Workshop" means any location where power drivenmachinery is used and manual labor is exercised by way of trade or gain orotherwise incidental to the process of making, altering, repairing, printing orornamenting, finishing or adapting for sale or otherwise any article or part ofarticle, over which location the employer of the person working at the locationhas the right of access or control. Workshop includes any location where powermachinery is being used and manual labor is exercised for recycling, crushing,incinerating, disposal or otherwise altering any article including but notlimited to, paper products, metal, glass, rubber and plastic, over whichlocation the employer of the person working at the location has the right ofaccess or control. A workshop does not include any location on which onlyoffice fans, typewriters, adding machines, calculators, computers, dictaphonesor other similar equipment driven by electric motors are operated which aresufficiently protected not to constitute a hazard to employees;

 

(v) Repealed by Laws 1992, ch. 33, 2.

 

(vi) "Power equipment operator" means any worker whooperates power machinery;

 

(vii) "Mine rescue team" means mine rescue workers andthe employers of the workers performing actual rescue operations or trainingrescue operations at any underground mine pursuant to the consent of the ownerof the mine and the employers of the members of the team. Mine rescue teammembers while engaged in mine rescue operations and training, shall beconsidered employees of the employer at whose mine they engage in mine rescuework;

 

(viii) "Hazardous substance" means those substancesdesignated or enumerated within the notification of hazardous waste activitypublication of the federal environmental protection agency;

 

(ix) "Hazardous substance worker" means a trainedemployee or volunteer involved with performing emergency response and postemergency response operations for the release or substantial threat of releaseof hazardous substances.

 

(g) This act does not apply to the following:

 

(i) Repealed by Laws 1995, ch. 121, 3.

 

(ii) Repealed By Laws 1995, ch. 121, 3.

 

(iii) Repealed By Laws 1995, ch. 121, 3.

 

(iv) Repealed By Laws 2006, Chapter 2, 2.

 

(v) through (ix) Repealed by Laws 1995, ch. 121, 3.

 

(vi) Repealed By Laws 1995, ch. 121, 3.

 

(vii) Repealed By Laws 1995, ch. 121, 3.

 

(viii) Repealed By Laws 1995, ch. 121, 3.

 

(ix) Repealed By Laws 1995, ch. 121, 3.

 

(x) Those individuals excluded as an employee under W.S.27-14-102(a)(vii)(A) through (O).

 

(h) Repealed by Laws 2002, Ch. 30, 2.

 

(j) Any employee not enumerated under subsections (a) through(g) of this section or not employed in an extrahazardous employment enumeratedunder this section may be covered and subject to the provisions of this act andhis employment shall be treated as if extrahazardous for purposes of this act,if his employer elects to obtain coverage under this act and makes payments asrequired by this act. An employer electing coverage pursuant to this subsectionmay only elect to cover all his employees. An employer may withdraw coverageelected under this subsection at any time if the elected coverage has been ineffect for at least two (2) years and the employer is current on allcontributions and payments required under this act.

 

(k) Any corporation, limited liability company, partnership orsole proprietorship may elect to obtain coverage under this act for any or allof its corporate officers, limited liability company members, partners in apartnership or sole proprietor by notifying the division in writing of itselection upon initial registration with the division, or thirty (30) days priorto the beginning of a calendar quarter. Any employer electing coveragepursuant to this subsection shall simultaneously elect coverage for itsemployees, as provided in subsection (j) of this section, if those employeesare not already covered under this act. Notwithstanding subsection (j) of thissection, an employer shall not withdraw coverage at any time during thesubsequent eight (8) calendar quarters. Application for termination of coverageunder this subsection shall be filed in writing with the division. Terminationof coverage shall be effective the first day of the month following thedivision's receipt of the notice of termination which shall specify whether thetermination is for the officers, members and partners or for the officers,members, partners and all electively covered employees.

 

(m) Any employer may elect to obtain coverage under this actfor school-to-work participants engaging in program activities at his place ofbusiness in accordance with rules and regulations of the division.

 

(n) Repealed by Laws 2002, Ch. 10, 2.

 

(o) Notwithstanding subparagraph (a)(ii)(P) of this section andupon request of an employer, the department may exclude employment fromcoverage under this act if it determines the primary source of revenue of theemployer's business is derived from operations classified under subparagraph(a)(ii)(P) of this section and any of the following industries:

 

(i) Agriculture, forestry, fishing and hunting, sector 11:

 

(A) Subsector 111, crop production;

 

(B) Subsector 112, animal production;

 

(C) Subsector 113, forestry and logging:

 

(I) Industry group 1131, timber tract operations;

 

(II) Industry group 1132, forest nurseries and gathering offorest products.

 

(D) Subsector 115, support activities for agriculture andforestry.

 

(p) Any university of the state of Wyoming or any communitycollege, school district or private or parochial school or college may elect toobtain coverage under this act for any person who may at any time be receivingtraining under any work or job training program for the purpose of training orlearning trades or occupations. The bona fide student so placed shall be deemedan employee of the respective university, community college, school district orprivate or parochial school or college sponsoring the training orrehabilitation program.

 

(q) A team owner shall obtain coverage under this act forprofessional athletes as defined in W.S. 27-14-102(a)(xxix). For the purpose ofdetermining employer contributions under this act, all professional athletesfor whom coverage is obtained are deemed to be paid, for each month duringwhich competition or team practice is held, the average monthly wage mostrecently computed pursuant to W.S. 27-14-802(b). Notwithstanding any otherprovision of law, the division shall classify professional athletes coveredunder this subsection under NAICS industry code number 711211, sports teams andclubs, and shall keep that classification separate for rate making purposes.

 

ARTICLE 2 - PREMIUMS AND RATES

 

27-14-201. Rates and classifications; rate surcharge.

 

(a) The worker's compensation program shall be neither more norless than self-supporting. Employments affected by this act shall be dividedby the division into classes, whose rates may be readjusted annually as thedivision actuarially determines. Any employer may contest his classificationas determined by the division following the contested case provisions of theWyoming Administrative Procedure Act except that the division shall carry theburden of proving that the classification is correct. Information shall be keptof the amounts collected and expended in each class for actuarially determiningrates, but for payment of compensation, the worker's compensation account shallbe one and indivisible.

 

(b) If it is determined at any time and in any manner that adetermination by the division of an industrial or employment classification isincorrect, premiums under any corrected classification shall be charged onlyfrom the date of change in classification. This subsection shall not apply toany employer's categorization of an employee's gross earnings to an industrialor employment classification.

 

(c) Upon compliance with the rate making provisions of theWyoming Administrative Procedure Act and written approval by the governor, thedivision shall determine the hazards of the different classes of employmentsand fix the premiums therefor at the lowest rate consistent with maintenance ofan actuarially sound worker's compensation account and the creation ofactuarially sound surplus and reserves, and for such purpose shall adopt asystem of rating in such a manner as to take account of the peculiar hazard ofeach risk, mathematically and equally based on actual costs to the program interms of number and extent of injuries and deaths, and shall use consultants orrating organizations as it determines necessary. The department shall submit anannual report with respect to proposed annual rate adjustments under thissection to the joint labor, health and social services interim committee nolater than October 1 of the year preceding the implementation of the rateadjustment. The total annual rate adjustment for any employment classificationunder this section is subject to the following limitations:

 

(i) Repealed by Laws 1994, ch. 86, 3.

 

(ii) Repealed by Laws 1994, ch. 86, 3.

 

(iii) Repealed By Laws 1998, ch. 117, 2.

 

(iv) Repealed By Laws 1998, ch. 117, 2.

 

(v) For the calendar year commencing January 1, 1999 and eachcalendar year thereafter, any increase in the base rate for each employmentclassification shall not exceed fifty percent (50%) of the base rate imposedfor that employment classification during the immediately preceding year;

 

(vi) To compensate for the difference between revenues generatedunder base rate adjustment limitations imposed under paragraph (c)(v) of thissection and revenues which would have been generated if base rates had beenadjusted without limitations, the division may limit base rate decreases forany employment classification by not more than fifty percent (50%) of theactuarially determined decrease;

 

(vii) Repealed By Laws 1998, ch. 117, 2.

 

(viii) In determining rates under this section for employersspecified under W.S. 27-14-108(a)(ii)(G)(I), the division shall base the rateson one (1) rate classification for sales personnel and one (1) rateclassification for all other personnel other than clerical;

 

(ix) Notwithstanding paragraph (v) of this subsection, for thecalendar year beginning January 1, 2003, rates shall be adjusted to reflect thereclassification of industry codes in accordance with the North AmericanIndustry Classification System (NAICS) manual, but in no case shall the basepremium rate for any classification for the calendar year beginning January 1,2003 exceed one hundred fifty percent (150%) of the lowest base rate assignedto any employer in that classification under the standard industrialclassification manual for the preceding year.

 

(d) In addition, the plan of rating shall use an experiencerating system based on three (3) years claim experience, or as much thereof asis available, for employers enrolled under it. This system shall rewardemployers with a better than average claim experience, penalize employers witha worse than average claim experience and may provide for premium volumediscount so long as the account remains actuarially sound. Discounts from orpenalties added to base employment classification rates because of claimexperience shall not exceed sixty-five percent (65%). The experience rating ofthe employer against whom a claim is made shall be charged only that proportionof total benefits payable equal to the percentage that employment with thatemployer contributes to the cause of the injury.

 

(e) The division in fixing rates shall provide for the costs ofbenefits and the expenses of administering the worker's compensation accountallowed by law, subject to the following:

 

(i) The account shall be one (1) account but shall includeprovision for all expenses allowed by this act, loss adjustment expenses andunpaid losses, including:

 

(A) Case reserves;

 

(B) Future development on known claims;

 

(C) Reopened claims reserve;

 

(D) Claims incurred but not reported;

 

(E) Claims incurred and reported but not yet recorded;

 

(F) An actuarially reasonable contingency margin to reflect theuncertainty inherent in estimates of unpaid losses and loss adjustmentexpenses.

 

(ii) The account shall be fully reserved on or before December31, 2013;

 

(iii) The division shall annually obtain a report from aqualified actuary rendering an opinion regarding the reasonableness of thebooked loss and loss adjustment expense reserve and carried contingencyreserve;

 

(iv) The division shall provide the opinion required byparagraph (iii) of this subsection to the joint labor, health and socialservices interim committee, or its successor, by November 1 of each year;

 

(v) For purposes of calculating reserves, future liabilitiesshall be discounted to present value using a discount factor selected by thedivision. The discount factor selected by the division and the reason for itsselection shall be included in the annual report to the joint labor, health andsocial services interim committee or its successor;

 

(vi) The collection through premiums of any deficiency inreserves and surpluses that exceeds five percent (5%) of the fund balance shallbe averaged over a ten (10) year period;

 

(vii) For purposes of this section:

 

(A) "Fully reserved" means that the workers'compensation account established by W.S. 27-14-701 has, in the opinion of aqualified actuary, funds sufficient on a discounted basis to provide for allunpaid loss and loss adjustment expenses as well as an actuarially appropriateprovision for adverse contingencies;

 

(B) "Qualified actuary" means a person who


State Codes and Statutes

State Codes and Statutes

Statutes > Wyoming > Title27 > Chapter14

CHAPTER 14 - WORKER'S COMPENSATION

 

ARTICLE 1 - GENERALLY

 

27-14-101. Short title; statement of intent.

 

(a) This act may be cited as the "Wyoming Worker'sCompensation Act".

 

(b) It is the intent of the legislature in creating the Wyomingworker's compensation division that the laws administered by it to provide aworker's benefit system be interpreted to assure the quick and efficientdelivery of indemnity and medical benefits to injured and disabled workers at areasonable cost to the employers who are subject to the Worker's CompensationAct. It is the specific intent of the legislature that benefit claims cases bedecided on their merits and that the common law rule of "liberalconstruction" based on the supposed "remedial" basis of workers'benefits legislation shall not apply in these cases. The worker's benefitsystem in Wyoming is based on a mutual renunciation of common law rights and defensesby employers and employees alike. Accordingly, the legislature declares thatthe Worker's Compensation Act is not remedial in any sense and is not to begiven a broad liberal construction in favor of any party.

 

27-14-102. Definitions.

 

(a) As used in this act:

 

(i) "Artificial replacement" means the addition of anartificial part to the human body which replaces a part lost, damaged or inneed of correction, excluding any personal item, artificial heart, automobileor the remodeling of an automobile or other physical structure or any item offurniture except as provided by rule and regulation of the division. If awheelchair is approved by the division for use during impairment or disability,"artificial replacement" may include necessary cost effective physicalstructures such as ramps, automobile devices or remodeling, bars and rails, andother necessary equipment or devices aiding the body during impairment ordisability, subject to the following criteria:

 

(A) A physical structure for which artificial replacement isclaimed shall be the primary residence of the claimant;

 

(B) Only one (1) automobile at a time shall be eligible fordevices or remodeling under this paragraph.

 

(ii) "Ascertainable loss" means that point in time inwhich it is apparent that permanent physical impairment has resulted from acompensable injury, the extent of the physical impairment due to the injury canbe determined and the physical impairment will not substantially improve ordeteriorate because of the injury;

 

(iii) "Child" means any unmarried minor or physicallyor mentally incapacitated individual receiving court ordered support orsubstantially all of his financial support from the employee at the time ofinjury or death of the employee and includes an adopted child, stepchild,posthumous child or acknowledged illegitimate child but does not include aparent or spouse of the employee;

 

(iv) "Delinquent payment" means any payment requiredof an employer under this act which is not paid within thirty (30) days afterthe date due as specified by this act;

 

(v) "Administrator" means the administrator of thedivision;

 

(vi) "Division" means the worker's compensationdivision within the department of employment;

 

(vii) "Employee" means any person engaged in anyextrahazardous employment under any appointment, contract of hire orapprenticeship, express or implied, oral or written, and includes legallyemployed minors, aliens authorized to work by the United States department ofjustice, office of citizenship and immigration services, and aliens whom theemployer reasonably believes, at the date of hire and the date of injury basedupon documentation in the employer's possession, to be authorized to work bythe United States department of justice, office of citizenship and immigrationservices. "Employee" does not include:

 

(A) Any individual whose employment is determined to be casuallabor;

 

(B) A sole proprietor or a partner of a business partnershipunless coverage is elected pursuant to W.S. 27-14-108(k);

 

(C) An officer of a corporation unless coverage is electedpursuant to W.S. 27-14-108(k);

 

(D) Any individual engaged as an independent contractor;

 

(E) A spouse or dependent of an employer living in theemployer's household;

 

(F) A professional athlete, except as provided in W.S.27-14-108(q);

 

(G) An employee of a private household;

 

(H) A private duty nurse engaged by a private party;

 

(J) An employee of the federal government;

 

(K) Any volunteer unless covered pursuant to W.S. 27-14-108(e);

 

(M) Any adult or juvenile prisoner or probationer unlesscovered pursuant to W.S. 27-14-108(d)(ix);

 

(N) An elected public official or an appointed member of anygovernmental board or commission, except for a duly elected or appointedsheriff or county coroner;

 

(O) The owner and operator of a motor vehicle which is leasedor contracted with driver to a for-hire common or contract carrier. Theowner-operator shall not be an employee for purposes of this act if he performsthe service pursuant to a contract which provides that the owner-operator shallnot be treated as an employee for purposes of the Federal InsuranceContributions Act, the Social Security Act, the Federal Unemployment Tax Actand income tax withholding at source;

 

(P) A member of a limited liability company unless coverage iselected pursuant to W.S. 27-14-108(k);

 

(Q) A foster parent providing foster care services for thedepartment of family services or for a certified child placement agency;

 

(R) An individual providing child day care or babysittingservices, whose wages are subsidized or paid in whole or in part by the Wyomingdepartment of family services. This exclusion from coverage does not excludefrom coverage an individual providing child day care or babysitting services asan employee of any individual or entity other than the Wyoming department offamily services.

 

(viii) "Employer" means any person or entity employingan employee engaged in any extrahazardous occupation or electing coverage underW.S. 27-14-108(j) and at least one (1) of whose employees is described in W.S.27-14-301. "Employer" includes:

 

(A) Repealed By Laws 1999, ch. 46, 2.

 

(B) The governmental entity for which recipients of publicassistance perform work if that work does not otherwise establish a coveredemployer and employee relationship;

 

(C) The governmental entity for which volunteers perform thespecified volunteer activities under W.S. 27-14-108(e);

 

(D) The governmental entity for which prisoners andprobationers work or perform community service under W.S. 27-14-108(d)(ix) or(xv);

 

(E) An owner-operator of a mine at which any mine rescueoperation or training occurs;

 

(F) A temporary service contractor for a temporary worker;

 

(G) Any person, contractor, firm, association or corporation otherwisequalifying under this paragraph as an employer and who utilizes the services ofa worker furnished by another contractor, joint employer, firm, association,person or corporation other than a temporary service contractor, jointemployer, independent contractor or owner and operator excluded as an employeeunder subparagraph (a)(vii)(O) of this section;

 

(H) Any employer otherwise qualifying under this paragraph asan employer and participating in a school-to-work program approved by thedepartment of workforce services, any local school district board of trustees,community college district board of trustees or the department of education,and the employer previously elected coverage in writing pursuant to W.S.27-14-108(m).

 

(ix) "Gross earnings" means remuneration payable forservices from any source including commissions, bonuses and cash and excludingtips and gratuities. The reasonable cash value of remuneration other than cashor check shall be prescribed by rule and regulation of the division. To theextent the following are not considered wages under 26 U.S.C. 3301 through3311, "gross earnings" does not include:

 

(A) Any premium paid by an employer under a plan, system orinto a fund for insurance or annuities to provide an employee or class ofemployees retirement, sickness or accident disability, medical andhospitalization expenses for sickness or accident disability or death benefitsif the employee cannot receive any part of this payment instead of the deathbenefit or any part of the premium if the benefit is insured and cannot assignor receive cash instead of the benefit upon withdrawal from or termination ofthe plan, system, policy or services with the employer;

 

(B) A payment by an employer not deducted from an employee's remunerationfor the tax imposed under 26 U.S.C. 3101;

 

(C) Any dismissal payment which the employer is not obligatedto make;

 

(D) The value of any meals or lodging furnished by and for theconvenience of the employer to the employee if the meals are furnished on thebusiness premises of the employer or in the case of lodging, the employee isrequired to accept lodging on the business premises of his employer as acondition of his employment;

 

(E) Remuneration received by an employee as sick pay followinga six (6) month continuous period of illness;

 

(F) Any benefit received under a cafeteria plan specified by 26U.S.C. 125, excluding cash;

 

(G) Wages of a deceased worker paid to a beneficiary or estatefollowing the calendar year of the worker's death;

 

(H) Services received under any dependent care assistanceprogram to the extent excluded from gross income under 26 U.S.C. 129;

 

(J) Wages paid to a disabled worker during the year followingthe year in which he became entitled to disability insurance benefits under theSocial Security Act;

 

(K) Services or benefits received under any educationalassistance program;

 

(M) Any benefit or other value received under an employeeachievement award;

 

(N) The value of any qualified group legal services plan to theextent payments are excludable from gross income under 26 U.S.C. 120;

 

(O) Costs of group term-life insurance;

 

(P) Any loan repayment which is repaid at interest rates belowestablished market rates;

 

(Q) Any moving expenses;

 

(R) Employer contributions to any qualified retirement orpension plan or individual retirement account and distributions from qualifiedretirement and pension plans and annuities under 26 U.S.C. 403(b);

 

(S) Benefit payments under any supplemental unemploymentcompensation plan; and

 

(T) Any benefits paid under this act or any other worker'scompensation law of another state.

 

(x) "Health care provider" means doctor of medicine,chiropractic or osteopathy, dentist, optometrist, podiatrist, psychologist oradvanced practitioner of nursing, acting within the scope of his license,licensed to practice in this state or in good standing in his home state;

 

(xi) "Injury" means any harmful change in the humanorganism other than normal aging and includes damage to or loss of anyartificial replacement and death, arising out of and in the course ofemployment while at work in or about the premises occupied, used or controlledby the employer and incurred while at work in places where the employer's businessrequires an employee's presence and which subjects the employee toextrahazardous duties incident to the business. "Injury" does notinclude:

 

(A) Any illness or communicable disease unless the risk ofcontracting the illness or disease is increased by the nature of theemployment;

 

(B) Injury caused by:

 

(I) The fact the employee is intoxicated or under the influenceof a controlled substance, or both, except any prescribed drug taken asdirected by an authorized health care provider. The division shall define"intoxicated" and "under the influence of a controlledsubstance" for purposes of this subparagraph in its rules and regulations;or

 

(II) The employee's willful intention to injure or kill himselfor another.

 

(C) Injury due solely to the culpable negligence of the injuredemployee;

 

(D) Any injury sustained during travel to or from employmentunless the employee is reimbursed for travel expenses or is transported by avehicle of the employer;

 

(E) Any injury sustained by the prisoner during or any harmresulting from any illegal activity engaged in by prisoners held under custody;

 

(F) Any injury or condition preexisting at the time ofemployment with the employer against whom a claim is made;

 

(G) Any injury resulting primarily from the natural agingprocess or from the normal activities of day-to-day living, as established bymedical evidence supported by objective findings;

 

(H) Any injury sustained while engaged in recreational orsocial events under circumstances where an employee was under no duty to attendand where the injury did not result from the performance of tasks related tothe employee's normal job duties or as specifically instructed to be performedby the employer; or

 

(J) Any mental injury unless it is caused by a compensablephysical injury, it occurs subsequent to or simultaneously with, the physicalinjury and it is established by clear and convincing evidence, which shallinclude a diagnosis by a licensed psychiatrist or licensed clinical psychologistmeeting criteria established in the most recent edition of the diagnostic andstatistical manual of mental disorders published by the American PsychiatricAssociation. In no event shall benefits for a compensable mental injury bepaid for more than six (6) months after an injured employee's physical injuryhas healed to the point that it is not reasonably expected to substantiallyimprove.

 

(xii) "Medical and hospital care" when provided by ahealth care provider means any reasonable and necessary first aid, medical,surgical or hospital service, medical and surgical supplies, apparatus,essential and adequate artificial replacement, body aid during impairment,disability or treatment of an employee pursuant to this act including therepair or replacement of any preexisting artificial replacement, hearing aid,prescription eyeglass lens, eyeglass frame, contact lens or dentures if thedevice is damaged or destroyed in an accident and any other health services orproducts authorized by rules and regulations of the division. "Medicaland hospital care" does not include any personal item, automobile or theremodeling of an automobile or other physical structure, public or privatehealth club, weight loss center or aid, experimental medical or surgical procedure,item of furniture or vitamin and food supplement except as provided under ruleand regulation of the division and paragraph (a)(i) of this section forimpairments or disabilities requiring the use of wheelchairs;

 

(xiii) "Nonresident employer" means:

 

(A) An individual who was not domiciled in Wyoming for at leasttwelve (12) months prior to commencing operations in the state; or

 

(B) A partnership or other association if any member does notqualify under subparagraph (A) of this paragraph; or

 

(C) A corporation in which more than three-fourths (3/4) of thecapital stock is owned by individuals who do not qualify under subparagraph (A)of this paragraph; and

 

(D) A person who uses or employs covered individuals in Wyomingand who has not been a continuous contributor under this act for twelve (12)months preceding the use or employment.

 

(xiv) "Payroll" means "gross earnings" asdefined under paragraph (a)(ix) of this section;

 

(xv) "Permanent partial disability" means the economicloss to an injured employee, measured as provided under W.S. 27-14-405(j),resulting from a permanent physical impairment;

 

(xvi) "Permanent total disability" means the loss ofuse of the body as a whole or any permanent injury certified under W.S.27-14-406, which permanently incapacitates the employee from performing work atany gainful occupation for which he is reasonably suited by experience ortraining;

 

(xvii) "Spouse" means any individual legally married toan employee at the time of injury or death;

 

(xviii) "Temporary total disability" means that period oftime an employee is temporarily and totally incapacitated from performingemployment at any gainful employment or occupation for which he is reasonablysuited by experience or training. The period of temporary total disabilityterminates at the time the employee completely recovers or qualifies forbenefits under W.S. 27-14-405 or 27-14-406;

 

(xix) "Joint employer" means any person, firm,corporation or other entity which employs joint employees, is associated byownership, commonly managed or controlled and contributes to the worker'scompensation account as required by this act;

 

(xx) "Employer making contributions required by thisact" means the employee's employer and any joint employer when theemployer or any joint employer reports the employee's wages to the division onan account or through a consolidated worker's compensation account andcontributions are made to the account as required by this act;

 

(xxi) "Joint employee" means any person:

 

(A) Who has an express or implied contract for employment withmore than one (1) joint employer at the same time;

 

(B) Whose work is controlled by more than one (1) jointemployer; and

 

(C) Who is engaged in the performance of work for more than one(1) joint employer.

 

(xxii) "Consolidated Wyoming worker's compensationaccount" means an account maintained by the Wyoming workers' compensationdivision to which an employer reports the wages of its employees and jointemployees for its own account and the account of its joint employers, pursuantto which contributions are made to the account as required by this act;

 

(xxiii) "Independent contractor" means an individual whoperforms services for another individual or entity and:

 

(A) Is free from control or direction over the details of theperformance of services by contract and by fact;

 

(B) Repealed By Laws 1998, ch. 117, 2.

 

(C) Represents his services to the public as a self-employedindividual or an independent contractor; and

 

(D) May substitute another person to perform his services.

 

(xxiv) "Casual labor" means service of less than two (2)consecutive weeks and not within the normal course of business;

 

(xxv) "Temporary service contractor" means any person,firm, association or corporation conducting a business that employs individualsdirectly for the purpose of furnishing services of the employed individuals ona temporary basis to others;

 

(xxvi) "Temporary worker" means a worker whose servicesare furnished to another employer on a temporary basis to substitute for apermanent employee on leave or to meet an emergency or short-term workload;

 

(xxvii) "This act" means W.S. 27-14-101 through27-14-805;

 

(xxviii) "State employee" means any individual enteringinto service of or working under an employment contract with any agency of thestate of Wyoming for which compensation is paid or which qualifies theindividual to participate in the state retirement account. Effective on andafter July 1, 2002, "state employee" shall include the University ofWyoming;

 

(xxix) "Professional athlete" means an individual whoreceives payment from a team owner for competing on a baseball, basketball,football, hockey or soccer team having its principal place of business inWyoming;

 

(xxx) For purposes of W.S. 27-14-207 and 27-14-806,"person" means as defined in W.S. 8-1-102.

 

27-14-103. Repealed by Laws 1991, ch. 190, 2.

 

27-14-104. Exclusive remedy as to employer; nonliability ofco-employees; no relief from liability; rights as to delinquent ornoncontributing employer.

 

(a) The rights and remedies provided in this act for anemployee including any joint employee, and his dependents for injuries incurredin extrahazardous employments are in lieu of all other rights and remedies againstany employer and any joint employer making contributions required by this act,or their employees acting within the scope of their employment unless theemployees intentionally act to cause physical harm or injury to the injuredemployee, but do not supersede any rights and remedies available to an employeeand his dependents against any other person.

 

(b) No contract, rule, regulation or device shall operate torelieve an employer from any liability created by this act except as otherwiseprovided by this act.

 

(c) This act does not limit or affect any right or action byany employee and his dependents against an employer for injuries received whileemployed by the employer when the employer at the time of the injuries has notqualified under this act for the coverage of his eligible employees, or havingqualified, has not paid the required premium on an injured employee's earningswithin thirty (30) days of the date due. When an employee's employment startswithin the same month as the injury, the status of delinquency or notcontributing shall not apply until after the regular payroll reporting date.

 

27-14-105. Action against third party; notice; subrogation; legalrepresentation; payment under reservation of rights; actions by department.

 

(a) If an employee covered by this act receives an injury undercircumstances creating a legal liability in some person other than the employerto pay damages, the employee if engaged in work for his employer at the time ofthe injury is not deprived of any compensation to which he is entitled underthis act. He may also pursue his remedy at law against the third party or thecoemployee to the extent permitted by W.S. 27-14-104(a). Except as provided bysubsections (b), (e) and (f) of this section, if the employee recovers from thethird party or the coemployee in any manner including judgment, compromise,settlement or release, the state is entitled to be reimbursed for all paymentsmade, or to be made, to or on behalf of the employee under this act but not toexceed one-third (1/3) of the total proceeds of the recovery without regard tothe types of damages alleged in the third-party action. Any recovery by thestate shall be reduced pro rata for attorney fees and costs in the sameproportion as the employee is liable for fees and costs. All money received bythe state under this section shall be credited to the worker's compensationaccount and considered in computing the employer's experience rating.

 

(b) The director and the attorney general shall be served bycertified mail return receipt requested with a copy of the complaint filed inany suit initiated pursuant to subsection (a) of this section. Service of thecomplaint on the director and attorney general is a jurisdictional requirement in order to maintain the suit. The director and the attorney general shall benotified in writing by certified mail return receipt requested of any judgment,compromise, settlement or release entered into by an employee. Before offeringsettlement to an employee, a third party or its insurer shall notify the stateof the proposed settlement and give the state fifteen (15) days after receiptof such notice in which to object. If notice of proposed settlement is notprovided, the state is entitled to initiate an independent action against thethird party or its insurer for all payments made to and any amount reserved foror on behalf of the employee under this act. If there is a settlement,compromise or release entered into by the parties in claims against a personother than the employer, the attorney general representing the director shallbe made a party in all such negotiations for settlement, compromise orrelease. The attorney general and the director, for purposes of facilitatingcompromise and settlement, may in a proper case authorize acceptance by thestate of less than the state's claim for reimbursement. The proceeds of anyjudgment, settlement, compromise or release are encumbered by a continuing lienin favor of the state to the extent of the total amount of the state's claimfor reimbursement under this section and for all current and future benefitsunder this act. The lien shall remain in effect until the state is paid theamount authorized under this section. In addition the person paying thesettlement remains liable to the state for the state's claim unless the statethrough the attorney general signs the release prior to payment of an agreedsettlement.

 

(c) If the injury causes the death of the employee, the rightsand remedies in this section inure to and the obligations are binding upon thepersonal representative of the deceased employee for the benefit of hisdependents.

 

(d) Any attorney who fails to notify the director and attorneygeneral of any settlement or fails to ensure the state receives its share ofthe proceeds of any settlement or judgment under subsection (a) of this sectionshall be reported to the grievance committee of the Wyoming state bar.

 

(e) At any time before the statute of limitation bars anemployee or his estate from commencing a claim for personal injury or wrongfuldeath, and upon the unsolicited written request of the employee or estate, thedepartment may commence such an action on behalf of the employee or hisestate. From any amounts recovered under this subsection, the state isentitled to an amount equal to all sums awarded as benefits to the employee orhis estate and all anticipated future medical costs. Any excess recovery shallbe paid to the injured employee or his estate.

 

(f) The department or employer shall have an additional six (6)month limitation period beyond the date on which the employee or his estate isbarred under the statute of limitations from commencing a claim for personalinjury or wrongful death, in which to commence such an action on behalf of theemployee or his estate. From any amounts recovered under this subsection, thestate is entitled to an amount equal to all sums awarded as benefits to theemployee or his estate, all anticipated future medical costs and all costs oflitigation. Any excess recovery shall be paid to the injured employee or hisestate.

 

(g) For purposes of subsections (e) and (f) of this section,nothing in this section prohibits any third party from reimbursing the worker'scompensation account for medical or temporary total disability costs withoutprejudice prior to any judgment, settlement or release.

 

27-14-106. Minor employee to be free of any legal disability.

 

Aminor shall be deemed free of any legal disability for the purposes of this actand no other person has any cause of action or right to compensation for hisinjury except as expressly provided in this act.

 

27-14-107. Repealed by Laws 1995, ch. 121, 3.

 

27-14-108. Extrahazardous industries, employments, occupations;enumeration; definitions; optional coverage.

 

(a) This act applies to the following, which shall be deemedextrahazardous employment:

 

(i) Repealed by Laws 2002, Ch. 30, 2.

 

(ii) Regardless of individual occupation, all workers employedin the following sectors, subsectors, industry groups and industries, as eachis defined in the most recent edition of the North American IndustryClassification System (NAICS) manual:

 

(A) Agriculture, sector 11:

 

(I) Subsector 113, forestry and logging:

 

(1) Industry group 1133, logging.

 

(B) Mining, sector 21;

 

(C) Utilities, sector 22;

 

(D) Construction, sector 23;

 

(E) Manufacturing, sector 31-33;

 

(F) Wholesale trade, sector 42:

 

(I) Subsector 422, wholesale trade, nondurable goods:

 

(1) Industrygroup 4225, farm product raw materials, wholesale;

 

(2) Industrygroup 4226, chemical and allied products, wholesale;

 

(3) Industrygroup 4227, petroleum and petroleum products, wholesale;

 

(4) Industrygroup 4228, beer, wine, and distilled alcoholic beverages, wholesale;

 

(5) Industry group4229, miscellaneous nondurable goods, wholesale.

 

(G) Retail trade, sector 44-45:

 

(I) Subsector 441, motor vehicle and parts dealer;

 

(II) Subsector 444, building materials and garden equipment andsupplies:

 

(1) Industrygroup 4441, building materials and supplies dealers:

 

a. NAICSindustry 44419, other building materials.

 

(III) Subsector 445, food and beverage stores:

 

(1) Industrygroup 4452, specialty food stores:

 

a. NAICSindustry 44521, meat markets;

 

b. NAICSindustry 44522, fish and seafood markets;

 

c. NAICSindustry 44529, other specialty stores.

 

(IV) Subsector 447, gasoline stations;

 

(V) Subsector 454, nonstore retailers:

 

(1) Industrygroup 4543, direct selling establishments:

 

a. NAICSindustry 45431, fuel dealers.

 

(H) Transportation and warehousing, sector 48-49:

 

(I) Subsector 481, air transportation;

 

(II) Subsector 484, truck transportation;

 

(III) Subsector 485, urban transit systems;

 

(IV) Subsector 486, pipeline transportation;

 

(V) Subsector 491, postal service;

 

(VI) Subsector 492, couriers and messengers;

 

(VII) Subsector 493, warehousing and storage.

 

(J) Information, sector 51:

 

(I) Subsector 511, publishing industries:

 

(1) Industrygroup 5111, newspaper, periodical, book and database publishers.

 

(K) Real estate and rental and leasing, sector 53:

 

(I) Subsector 531, real estate:

 

(1) Industry group 5311, lessors of real estate.

 

(II) Subsector 532, rental and leasing services:

 

(1) Industrygroup 5321, automotive equipment rental and leasing.

 

(M) Administrative and support and waste management andremediation services, sector 56:

 

(I) Subsector 561, administrative and support services:

 

(1) Industrygroup 5616, investigation, guard and armored car services;

 

(2) Industrygroup 5617, services to buildings and dwellings.

 

(II) Subsector 562, waste management and remediation services.

 

(N) Educational services, sector 61:

 

(I) Subsector 611, educational services:

 

(1) Industry group 6116, other schools and instruction:

 

a. NAICS industry 61161, fine arts schools;

 

b. NAICS industry 61162, sports and recreation instruction;

 

c. NAICS industry 61169, all other schools and instruction:

 

i. United States NAICS industry 611692, automobile driving schools.

 

(O) Health care and social services, sector 62:

 

(I) Subsector 621, ambulatory health care services;

 

(II) Subsector 622, hospitals;

 

(III) Subsector 623, nursing and residential care facilities;

 

(IV) Subsector 624, social assistance:

 

(1) Industry group 6241, individual and family services;

 

(2) Industry group 6242, community food and housing, and emergency and other reliefservices;

 

(3) Industry group 6243, vocational rehabilitation services.

 

(P) Except as provided under subsection (o) of this section,arts, entertainment and recreation, sector 71;

 

(Q) Accommodation and food services, sector 72;

 

(R) Other services (except public administration), sector 81:

 

(I) Subsector 811, repair and maintenance;

 

(II) Subsector 812, personal and laundry services:

 

(1) Industrygroup 8123, dry-cleaning and laundry services;

 

(2) Industrygroup 8129, other personal services:

 

a. NAICSindustry 81291, pet care (except veterinary services).

 

(S) Public administration, sector 92:

 

(I) Subsector 922, justice, public order and safety activities:

 

(1) Industry group 9221, justice, public order and safety activities:

 

a. NAICSindustry 92212, police protection;

 

b. NAICSindustry 92214, correctional institutions;

 

c. NAICSindustry 92215, fire protection, including firefighters while performing underthe direction of a duly authorized officer in charge and engaged in competitionat employer sanctioned training events, construction, maintenance orimprovement of equipment or facilities utilized in fire protection activities,fundraising, civic affairs or other similar authorized activities.

 

(II) Subsector 923, administration of human resource programs:

 

(1) Industrygroup 9231, administration of human resource programs:

 

a. NAICSindustry 92312, administration of public health programs;

 

b. NAICSindustry 92313, administration of human resource programs (except education,public health and veterans' affairs programs);

 

c. NAICSindustry 92314, administration of veterans' affairs.

 

(III) Subsector 924, administration of environmental qualityprograms.

 

(b) Repealed by Laws 1992, ch. 33, 2.

 

(c) Repealed By Laws 1996, ch. 71, 2, 1995, ch. 121, 3.

 

(d) This act applies to governmental entities engaged in anindustrial classification listed under subsection (a) of this section and toemployees of governmental entities engaged in or employed as the following:

 

(i) Janitors, groundskeepers and maintenance workers;

 

(ii) Federal programs which require coverage for theirparticipants;

 

(iii) State employees and effective until June 30, 2002,employees of the University of Wyoming while traveling in the performance oftheir duties;

 

(iv) Repealed By Laws 2001, Ch. 132, 2.

 

(v) Repealed By Laws 2001, Ch. 132, 2.

 

(vi) Casual employees engaged in fighting forest or grass fireswhen employed by a governmental entity;

 

(vii) Applicants or recipients of general welfare or relief whoare employed by a governmental entity;

 

(viii) Repealed By Laws 2001, Ch. 132, 2.

 

(ix) All adult and juvenile prisoners and probationers whenperforming work pursuant to law or court order;

 

(x) Diagnostic and analytical laboratory employees;

 

(xi) Hazardous substance workers;

 

(xii) Power equipment operators;

 

(xiii) Motor delivery drivers;

 

(xiv) Workshop employees;

 

(xv) Persons performing community service pursuant to a criminalsentencing order or a diversion agreement entered into with a prosecutingauthority, if the governing body of the jurisdiction for whom the service isperformed has made a prior written election of coverage for the communityservice work;

 

(xvi) Public school educational assistants who provide servicesto special education students;

 

(xvii) County coroners and deputy county coroners;

 

(xviii) Fire protection, including firefighters while performingunder the direction of a duly authorized officer in charge and engaged incompetition at employer sanctioned training events, construction, maintenanceor improvement of equipment or facilities utilized in the fire protectionactivities, fundraising, civic affairs or similar authorized activities.

 

(e) Specifically enumerated volunteers to whom this act appliesare:

 

(i) Firefighters while:

 

(A) Firefighting;

 

(B) Performing rescue work;

 

(C) Participating in a hazardous material response;

 

(D) Responding to any other situation where the health orsafety of the public is at risk;

 

(E) Training for the activities enumerated in subparagraphs (A)through (D) and (F) of this paragraph, including while engaged in competitionat employer sanctioned training events;

 

(F) Constructing, maintaining or improving equipment orfacilities utilized in the activities enumerated in subparagraphs (A) through(E) of this paragraph; or

 

(G) Performing under the direction of a duly authorized officerin charge and engaged in fundraising, civic affairs or other similar authorizedactivities.

 

(ii) Search and rescue personnel;

 

(iii) Law enforcement personnel;

 

(iv) Search pilots;

 

(v) Mine rescue workers;

 

(vi) Ambulance personnel;

 

(vii) Hazardous substance workers;

 

(viii) Emergency management agency personnel;

 

(ix) Elected county or local officials volunteering to performgovernmental services on behalf of the jurisdiction to which they are elected,where the services are outside of the elected officials' regular duties, if thegoverning body of the jurisdiction has made a prior written election ofcoverage for the volunteer work;

 

(x) Volunteers working on projects approved by the Wyoming gameand fish commission;

 

(xi) Law enforcement aides while:

 

(A) Conducting patrols, reporting suspicious activities orcontrolling traffic and crowds on an authorized work schedule agreed to by andwithin the jurisdiction of the law enforcement agency to which the volunteerservice is provided;

 

(B) Training under the auspices of a law enforcement agency.

 

(f) As used in this section:

 

(i) Repealed by Laws 1992, ch. 33, 2.

 

(ii) "Diagnostic and analytical laboratory employees"means all laboratory personnel handling or analyzing or otherwise exposed toinfections, chemical or biological hazardous materials or employed in alaboratory in which infections, chemical or biological hazardous materials arehandled or stored;

 

(iii) Repealed By Laws 1999, ch. 46, 2.

 

(iv) "Workshop" means any location where power drivenmachinery is used and manual labor is exercised by way of trade or gain orotherwise incidental to the process of making, altering, repairing, printing orornamenting, finishing or adapting for sale or otherwise any article or part ofarticle, over which location the employer of the person working at the locationhas the right of access or control. Workshop includes any location where powermachinery is being used and manual labor is exercised for recycling, crushing,incinerating, disposal or otherwise altering any article including but notlimited to, paper products, metal, glass, rubber and plastic, over whichlocation the employer of the person working at the location has the right ofaccess or control. A workshop does not include any location on which onlyoffice fans, typewriters, adding machines, calculators, computers, dictaphonesor other similar equipment driven by electric motors are operated which aresufficiently protected not to constitute a hazard to employees;

 

(v) Repealed by Laws 1992, ch. 33, 2.

 

(vi) "Power equipment operator" means any worker whooperates power machinery;

 

(vii) "Mine rescue team" means mine rescue workers andthe employers of the workers performing actual rescue operations or trainingrescue operations at any underground mine pursuant to the consent of the ownerof the mine and the employers of the members of the team. Mine rescue teammembers while engaged in mine rescue operations and training, shall beconsidered employees of the employer at whose mine they engage in mine rescuework;

 

(viii) "Hazardous substance" means those substancesdesignated or enumerated within the notification of hazardous waste activitypublication of the federal environmental protection agency;

 

(ix) "Hazardous substance worker" means a trainedemployee or volunteer involved with performing emergency response and postemergency response operations for the release or substantial threat of releaseof hazardous substances.

 

(g) This act does not apply to the following:

 

(i) Repealed by Laws 1995, ch. 121, 3.

 

(ii) Repealed By Laws 1995, ch. 121, 3.

 

(iii) Repealed By Laws 1995, ch. 121, 3.

 

(iv) Repealed By Laws 2006, Chapter 2, 2.

 

(v) through (ix) Repealed by Laws 1995, ch. 121, 3.

 

(vi) Repealed By Laws 1995, ch. 121, 3.

 

(vii) Repealed By Laws 1995, ch. 121, 3.

 

(viii) Repealed By Laws 1995, ch. 121, 3.

 

(ix) Repealed By Laws 1995, ch. 121, 3.

 

(x) Those individuals excluded as an employee under W.S.27-14-102(a)(vii)(A) through (O).

 

(h) Repealed by Laws 2002, Ch. 30, 2.

 

(j) Any employee not enumerated under subsections (a) through(g) of this section or not employed in an extrahazardous employment enumeratedunder this section may be covered and subject to the provisions of this act andhis employment shall be treated as if extrahazardous for purposes of this act,if his employer elects to obtain coverage under this act and makes payments asrequired by this act. An employer electing coverage pursuant to this subsectionmay only elect to cover all his employees. An employer may withdraw coverageelected under this subsection at any time if the elected coverage has been ineffect for at least two (2) years and the employer is current on allcontributions and payments required under this act.

 

(k) Any corporation, limited liability company, partnership orsole proprietorship may elect to obtain coverage under this act for any or allof its corporate officers, limited liability company members, partners in apartnership or sole proprietor by notifying the division in writing of itselection upon initial registration with the division, or thirty (30) days priorto the beginning of a calendar quarter. Any employer electing coveragepursuant to this subsection shall simultaneously elect coverage for itsemployees, as provided in subsection (j) of this section, if those employeesare not already covered under this act. Notwithstanding subsection (j) of thissection, an employer shall not withdraw coverage at any time during thesubsequent eight (8) calendar quarters. Application for termination of coverageunder this subsection shall be filed in writing with the division. Terminationof coverage shall be effective the first day of the month following thedivision's receipt of the notice of termination which shall specify whether thetermination is for the officers, members and partners or for the officers,members, partners and all electively covered employees.

 

(m) Any employer may elect to obtain coverage under this actfor school-to-work participants engaging in program activities at his place ofbusiness in accordance with rules and regulations of the division.

 

(n) Repealed by Laws 2002, Ch. 10, 2.

 

(o) Notwithstanding subparagraph (a)(ii)(P) of this section andupon request of an employer, the department may exclude employment fromcoverage under this act if it determines the primary source of revenue of theemployer's business is derived from operations classified under subparagraph(a)(ii)(P) of this section and any of the following industries:

 

(i) Agriculture, forestry, fishing and hunting, sector 11:

 

(A) Subsector 111, crop production;

 

(B) Subsector 112, animal production;

 

(C) Subsector 113, forestry and logging:

 

(I) Industry group 1131, timber tract operations;

 

(II) Industry group 1132, forest nurseries and gathering offorest products.

 

(D) Subsector 115, support activities for agriculture andforestry.

 

(p) Any university of the state of Wyoming or any communitycollege, school district or private or parochial school or college may elect toobtain coverage under this act for any person who may at any time be receivingtraining under any work or job training program for the purpose of training orlearning trades or occupations. The bona fide student so placed shall be deemedan employee of the respective university, community college, school district orprivate or parochial school or college sponsoring the training orrehabilitation program.

 

(q) A team owner shall obtain coverage under this act forprofessional athletes as defined in W.S. 27-14-102(a)(xxix). For the purpose ofdetermining employer contributions under this act, all professional athletesfor whom coverage is obtained are deemed to be paid, for each month duringwhich competition or team practice is held, the average monthly wage mostrecently computed pursuant to W.S. 27-14-802(b). Notwithstanding any otherprovision of law, the division shall classify professional athletes coveredunder this subsection under NAICS industry code number 711211, sports teams andclubs, and shall keep that classification separate for rate making purposes.

 

ARTICLE 2 - PREMIUMS AND RATES

 

27-14-201. Rates and classifications; rate surcharge.

 

(a) The worker's compensation program shall be neither more norless than self-supporting. Employments affected by this act shall be dividedby the division into classes, whose rates may be readjusted annually as thedivision actuarially determines. Any employer may contest his classificationas determined by the division following the contested case provisions of theWyoming Administrative Procedure Act except that the division shall carry theburden of proving that the classification is correct. Information shall be keptof the amounts collected and expended in each class for actuarially determiningrates, but for payment of compensation, the worker's compensation account shallbe one and indivisible.

 

(b) If it is determined at any time and in any manner that adetermination by the division of an industrial or employment classification isincorrect, premiums under any corrected classification shall be charged onlyfrom the date of change in classification. This subsection shall not apply toany employer's categorization of an employee's gross earnings to an industrialor employment classification.

 

(c) Upon compliance with the rate making provisions of theWyoming Administrative Procedure Act and written approval by the governor, thedivision shall determine the hazards of the different classes of employmentsand fix the premiums therefor at the lowest rate consistent with maintenance ofan actuarially sound worker's compensation account and the creation ofactuarially sound surplus and reserves, and for such purpose shall adopt asystem of rating in such a manner as to take account of the peculiar hazard ofeach risk, mathematically and equally based on actual costs to the program interms of number and extent of injuries and deaths, and shall use consultants orrating organizations as it determines necessary. The department shall submit anannual report with respect to proposed annual rate adjustments under thissection to the joint labor, health and social services interim committee nolater than October 1 of the year preceding the implementation of the rateadjustment. The total annual rate adjustment for any employment classificationunder this section is subject to the following limitations:

 

(i) Repealed by Laws 1994, ch. 86, 3.

 

(ii) Repealed by Laws 1994, ch. 86, 3.

 

(iii) Repealed By Laws 1998, ch. 117, 2.

 

(iv) Repealed By Laws 1998, ch. 117, 2.

 

(v) For the calendar year commencing January 1, 1999 and eachcalendar year thereafter, any increase in the base rate for each employmentclassification shall not exceed fifty percent (50%) of the base rate imposedfor that employment classification during the immediately preceding year;

 

(vi) To compensate for the difference between revenues generatedunder base rate adjustment limitations imposed under paragraph (c)(v) of thissection and revenues which would have been generated if base rates had beenadjusted without limitations, the division may limit base rate decreases forany employment classification by not more than fifty percent (50%) of theactuarially determined decrease;

 

(vii) Repealed By Laws 1998, ch. 117, 2.

 

(viii) In determining rates under this section for employersspecified under W.S. 27-14-108(a)(ii)(G)(I), the division shall base the rateson one (1) rate classification for sales personnel and one (1) rateclassification for all other personnel other than clerical;

 

(ix) Notwithstanding paragraph (v) of this subsection, for thecalendar year beginning January 1, 2003, rates shall be adjusted to reflect thereclassification of industry codes in accordance with the North AmericanIndustry Classification System (NAICS) manual, but in no case shall the basepremium rate for any classification for the calendar year beginning January 1,2003 exceed one hundred fifty percent (150%) of the lowest base rate assignedto any employer in that classification under the standard industrialclassification manual for the preceding year.

 

(d) In addition, the plan of rating shall use an experiencerating system based on three (3) years claim experience, or as much thereof asis available, for employers enrolled under it. This system shall rewardemployers with a better than average claim experience, penalize employers witha worse than average claim experience and may provide for premium volumediscount so long as the account remains actuarially sound. Discounts from orpenalties added to base employment classification rates because of claimexperience shall not exceed sixty-five percent (65%). The experience rating ofthe employer against whom a claim is made shall be charged only that proportionof total benefits payable equal to the percentage that employment with thatemployer contributes to the cause of the injury.

 

(e) The division in fixing rates shall provide for the costs ofbenefits and the expenses of administering the worker's compensation accountallowed by law, subject to the following:

 

(i) The account shall be one (1) account but shall includeprovision for all expenses allowed by this act, loss adjustment expenses andunpaid losses, including:

 

(A) Case reserves;

 

(B) Future development on known claims;

 

(C) Reopened claims reserve;

 

(D) Claims incurred but not reported;

 

(E) Claims incurred and reported but not yet recorded;

 

(F) An actuarially reasonable contingency margin to reflect theuncertainty inherent in estimates of unpaid losses and loss adjustmentexpenses.

 

(ii) The account shall be fully reserved on or before December31, 2013;

 

(iii) The division shall annually obtain a report from aqualified actuary rendering an opinion regarding the reasonableness of thebooked loss and loss adjustment expense reserve and carried contingencyreserve;

 

(iv) The division shall provide the opinion required byparagraph (iii) of this subsection to the joint labor, health and socialservices interim committee, or its successor, by November 1 of each year;

 

(v) For purposes of calculating reserves, future liabilitiesshall be discounted to present value using a discount factor selected by thedivision. The discount factor selected by the division and the reason for itsselection shall be included in the annual report to the joint labor, health andsocial services interim committee or its successor;

 

(vi) The collection through premiums of any deficiency inreserves and surpluses that exceeds five percent (5%) of the fund balance shallbe averaged over a ten (10) year period;

 

(vii) For purposes of this section:

 

(A) "Fully reserved" means that the workers'compensation account established by W.S. 27-14-701 has, in the opinion of aqualified actuary, funds sufficient on a discounted basis to provide for allunpaid loss and loss adjustment expenses as well as an actuarially appropriateprovision for adverse contingencies;

 

(B) "Qualified actuary" means a person who

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