Alco of Wyoming v. Baker

• Decision Date: 27 September 1982
• Docket Number: No. 5692,5692
• Citation: 651 P.2d 266
• Parties: ALCO OF WYOMING, Appellant (Employer-Defendant), and Wyoming State Treasurer, ex rel. Worker's Compensation Division, Appellant (Objector-Defendant), v. Myra BAKER and Lori Jones, Appellees (Employees-Claimants).
• Court: Wyoming Supreme Court

Page 266

651 P.2d 266

ALCO OF WYOMING, Appellant (Employer-Defendant) and Wyoming State Treasurer, ex rel. Worker's Compensation Division, Appellant (Objector-Defendant), v. Myra BAKER and Lori Jones, Appellees (Employees-Claimants).

No. 5692.

Supreme Court of Wyoming.

Sept. 27, 1982.

W. Thomas Sullins, II, of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellant Alco of Wyoming.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Sr. Asst. Atty. Gen., and Carl J. Hildebrand, Asst. Atty. Gen., Cheyenne for appellant Wyoming State Treasurer, ex rel. Worker's Compensation Div.

Burton W. Guetz, Casper, for appellees.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

Appellees Myra Baker (Baker) and Lori Jones (Jones) were employees of appellant Alco of Wyoming (Alco). They had attended a company picnic. Baker was driving home from the picnic with Jones as her passenger when Baker's truck left the road, injuring them both. Baker and Jones applied for and received worker's compensation awards. Some of the awards were objected to by the employer, Alco, and all of them were objected to by the Wyoming State Treasurer through the Worker's Compensation Division. Both Alco and the State appealed the district court's orders allowing the coverage under the worker's compensation statutes, § 27-12-101 et seq., W.S.1977.

Appellants contend that the trial court erred in finding that appellees were employees entitled to coverage and in finding that appellees' injuries arose out of or in the course of their employment. Appellants also contend that the trial court erred in prohibiting them from raising the defenses of intoxication and culpable negligence.

We reverse.

The district court found that both appellees were clerical workers, but were subject to the hazards of the business, thus entitling them to coverage under § 27-12-102(a)(viii), which provides:

" 'Employee' means any person who has entered into the employment of * * * an employer engaged in an extrahazardous occupation, except * * * those engaged in clerical work and not subject to the hazards of the business. * * * " (Emphasis added.)

The claimant in a worker's compensation case has the burden of proof. Black Watch Farms v. Baldwin, Wyo., 474 P.2d 297 (1970). Unless the statute dictates otherwise, as in hernia cases, the claimant has the burden of establishing every essential element of his claim by a preponderance of the evidence. Miller v. City of Lander, Wyo., 453 P.2d 889 (1969). The testimony established that appellees were clerical workers. Appellees testified that their general duties involved paperwork or bookwork. Jones testified that she was an office manager, and Baker testified that she was a processing clerk. Appellees first had to prove that their employer's business was extrahazardous under § 27-12-106, they also had to prove that, as clerical workers, they were subject to the hazards of the business.

Alco was engaged in the sale and installation of storm doors and patio covers. Section 27-12-106(a)(i) says that factory work is an extrahazardous occupation, but the only testimony at trial on the subject showed that the manufacture of the storm doors took place in Denver. The employer did not operate a factory in Casper.

Section 27-12-106(a)(iv) lists employment in a workshop where machinery is used as an extrahazardous occupation. Section 27-12-102(a)(xix), defines workshop:

" 'Workshop' means any place where power driven machinery is employed and manual labor is exercised by way of trade or gain, or otherwise incidental to the process of making, altering, repairing, printing or ornamenting, finishing or adapting for sale or otherwise any article or part of article, over which place the employer of the person working therein has the right of access or control. No place is a workshop within the meaning of this act solely because office fans, typewriters, adding machines, dictaphones or other similar equipment driven by electric motors are operated therein and so protected as not to constitute a hazard to employees."

There was, however, no testimony that there was a workshop on the Alco premises. We are left to conjecture if any of the activities described to define workshop were carried on there. The only testimony presented concerned the fact that screens and door closure latches were repaired or replaced, but there was no indication that any machinery was used. A party having the burden of proof cannot prevail if the factors necessary to support his claim are left to guess or conjecture. White v. Maverick Production Co., 63 Wyo. 452, 182 P.2d 818 (1947).

Section 27-12-106(a), lists warehousing and transfer as an extrahazardous occupation. Appellees testified that they would sometimes go into the warehouse to get new door closures for customers, to return a screen for repair, and to give phone messages to the other employees. However, § 27-12-102(a)(xviii) states:

" 'Warehousing' means an operation which principally stores for hire goods belonging to other persons, and does not include the storage of goods belonging to the operator of the business when the storage is incidental to the sale of the goods to their ultimate consumer."

Under that definition, the employer and employees were certainly not engaged in the extrahazardous...