Barnes, Matter of

• Decision Date: 07 December 1978
• Docket Number: No. 5003,5003
• Citation: 587 P.2d 214
• Parties: In the Matter of the injury to Earl J. BARNES. WYOMING STATE TREASURER, ex rel. Worker's Compensation Division, Appellant (Objector-Defendant below), and True Drilling Company, Joint Appellant (Employer below), v. Earl J. BARNES, Appellee (Employee below).
• Court: Wyoming Supreme Court

Page 214

587 P.2d 214

In the Matter of the injury to Earl J. BARNES WYOMING STATE TREASURER, ex rel. Worker's Compensation Division, Appellant (Objector-Defendant below) and

True Drilling Company, Joint Appellant (Employer below), v. Earl J. BARNES, Appellee (Employee below).

No. 5003.

Supreme Court of Wyoming.

Dec. 7, 1978.

John J. Rooney, Atty. Gen., Cheyenne, Daniel E. White, Asst. Atty. Gen., and R. Stanley Lowe, Casper, signed the brief and White appeared in oral argument on behalf of the appellants.

Willis C. Geer, County Atty. and Thomas Padget, Deputy County Atty., Gillette, signed the brief and Padget appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J. and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

This appeal arose from an order of the district court awarding the appellee-employee, Barnes, temporary total disability payments under the Worker's Compensation Act. ¹ The appellants, Wyoming State Treasurer, ex rel. Worker's Compensation Division (hereinafter Division) and True Drilling Company, the employer, assert in this appeal that:

(1) The employee suffered a compensable injury on March 29, 1967.

(2) The employee's application and claim for temporary total disability benefits was not timely filed under § 72, Ch. 143, S.L.Wyo.1951. ²

(3) The employee's application and claim for temporary total disability benefits was not timely filed under § 9, Ch. 191, S.L.Wyo.1969. ³

We will affirm.

The record discloses that the employee suffered an injury on March 29, 1967, at which time he had been employed by the employer for approximately five years. Employee did not have to discontinue working at the time of this injury and was absent from work only briefly for treatments of various sorts. A report, dated April 5, 1967, by his attending chiropractor, Alvin L. Bollig, D.C., indicated that employee suffered from an "acute lumbodorsal strain with possible disc herniation," not due to a preexisting condition. Dr. Bollig's treatment was "manipulation and physiotherapy," and his concluding remarks were:

"Patient responded satisfactorily, had good range of movement and only slight pain remaining when patient had a relapse for no apparent reason on April 4, (sic) At this point I X-Rayed and am suspicious of a disc herniation and referred patient to Dr. Whiston."

A timely Injured Worker's Report of Accident was filed by the employee with the district court on April 5, 1967. An order permitting the employee to obtain treatment from Drs. Whiston and Anderson of Casper was signed by the district judge on April 6, 1967. On April 11, 1967, Dr. Anderson filed a report with the district court which concluded that:

" * * * Mr. Barnes has suffered an acute back strain and I have recommended the use heat (sic), Rela, 1 tablet, q. i. d. and Indocin, 1 capsule, t. i. d. He may work as tolerated and he should be rechecked in ten days."

Payments for treatment and services were authorized and paid from the Worker's Compensation Fund. The last Supplemental Report of Physician submitted by Dr. Anderson to the district court on July 17, 1967, contains the following:

"10. REMARKS: Patient has been dismissed from treatment but if he has recurrence of his symptoms in the future, he will require a spinal fusion to be carried out between the 5th lumbar and 1st sacral vertebrae. X-ray exam. shows narrowing of the lumbo-sacral disc."

The next item contained in the record is a petition to reopen filed by the employee on June 22, 1976. ⁴ The petition recited the accident of March 29, 1967, that previous treatment had ceased on July 17, 1967, and that employee had additional problems with his back since being released and that he underwent surgery on February 25, 1976. Attached to the petition was a note from Dr. Anderson which stated:

"Mr. Barnes (sic) present condition is the result of his original injury on 3/29/67. At that time he had a lumbosacral derangement and x-rays at this time show a lumbosacral derangement and the patient had surgery. He will be disabled for a period of, at least, six months from the time of his surgery which was 2/25/76."

A hearing was conducted on August 19, 1976. At that hearing the only evidence presented to the court was the testimony of the employee. The only issue was the statute of limitations. Employee's testimony iterated the circumstances of the accident in 1967. He stated that he had pain and had missed work at intervals between 1967 and 1976 but did not consult with his physician during that time. He terminated employment with employer on January 14, 1976. On February 3, 1976, he went back to Dr. Anderson because his back condition had worsened and the pain had spread to his left leg. He stated that he had not reinjured his back. Dr. Anderson treated employee with medication for several weeks. Employee testified on cross-examination about his complaints of pain at the time he quit his employment with employer:

"Q. Well, did you complain to him at the time you quit?

"A. Yeah.

"Q. And what did you say?

"A. Well, that last day it was hurting so bad that I couldn't hardly get in the car. And Mr. Baker asked me if I wanted to put it on the book that I had hurt my back again and I told him no, it was just like always and it would probably be all right in a few days.

"Q. Well, you say 'put it on the books' that you hurt your back again. Had you hurt your back again?

"A. No, not I don't know, I don't understand how to differentiate between hurting your back again and the same injury. Mr. Baker knew how my back was, had known for years, and he's known when my back hurts. He's had to come up and run the rig a time or two when I couldn't."

Employee was asked why he had not notified employer or the court before he had his operation, and he responded that the operation had been performed without much notice to him. He testified that he had called officials of employer from the hospital after the operation and they had indicated it was too late for him to apply for benefits either under his insurance or Worker's Compensation. Employee's testimony was in no way contradicted nor was any evidence presented on behalf of employer. At the close of the hearing the trial judge commented:

" * * * (I)t just appears to the Court that under the circumstances of this case that the matter was never closed because of the statement of Dr. Anderson in his report of July 25, 1967, in which he says: ' . . . has injuries resulting in permanent disability.' His remarks are that: 'The patient has been dismissed from treatment, but if he has recurrence of his symptoms in the future he will require a spinal fusion to be carried out,' etcetera.

"And his letter then dated May 27, 1976, would indicate that the surgery that he performed in February of this year was related to that original injury that he talked about back in '67.

"And so it will be the ruling of the Court that the matter never has been closed, that it was a continuing thing during that period of time, and the award will be allowed."

As a result of the hearing, an order was issued by the district court on September 1, 1976, which concluded in pertinent part:

" * * * (T)he Court finding that the claim of the petitioner concerns on-going treatment necessitated by the petitioners (sic) previous injury on March 29, 1967 and that all proper claims are allowable.

"IT IS THEREFORE ORDERED that the petition to reopen is not necessary and that all proper claims presented by the petitioner shall be allowed as part of the petitioners (sic) original claim."

On September 24, 1976, an Objection to Award was filed by the attorney general in behalf of the Division. No protest was made to hospital or medical benefits awarded but an anticipation of further awards claimed:

"(3) According to the decision of the Wyoming Supreme Court in the case of Wyoming State Treasurer, ex rel. Workmen's Compensation Division (Dept.) v. Niezwaag, 452 P.2d 214 (Wyo.1969), all claims for temporary total, permanent total, or permanent partial disability are barred by the provisions of W.S. 27-117 (Laws 1951, Chapter 143, Section 72), being the law in effect on March 29, 1967, the date of the injury to Claimant. Therefore, all such claims are not 'proper claims' in this case because they were not filed within two years of the date of injury or within two years of a period in which monthly payments were being received by the Claimant.

"(4) Objector-Defendant expects such claims, particularly claims for temporary total disability, to be filed with this Court in the immediate future.

"THEREFORE Objector-Defendant requests that:

"(1) Said claims to be set down for a hearing and that:

"(2) all claims for temporary total, permanent partial or permanent total disability be denied as improper claims under the law in effect at the time of the injury to the Claimant * * * ."

A claim for temporary total disability was filed in the district court on October 27, 1976. On November 3, 1976, a petition was filed by employer which objected to employee's claim on grounds virtually identical to those outlined in the State Treasurer's objection set out above.

An amended application and claim for award was filed on February 8, 1977, which asked for temporary total disability benefits from February 25, 1976 to October 6, 1976. On March 7, 1977, employer objected to the amended claim. An order was issued on March 28, 1977, to the effect that employee was awarded temporary total disability benefits for the claimed period. An order of award dated March 29, 1978, afforded employee temporary total disability payment.

We have recited the facts and procedure in great detail in order to underscore the unusual factual and procedural nature of this case. We hold our disposition to be governed by the decision of this court in Baldwin v. Scullion, 1936, 50 Wyo. 508, 62 P.2d 531. ⁵ Scullion was an employee injured on July 15, 1934, but continued working despite some pain. In August, 1934,...