Bemis v. Texaco, Inc.

• Decision Date: 06 April 1965
• Docket Number: No. 3414,3414
• Citation: 400 P.2d 529
• Parties: Earl A. BEMIS, Appellant (Employee-Claimant, below), v. TEXACO, INC. (Employer-Defendant, below), and Wyoming State Treasurer, Appellee.
• Court: Wyoming Supreme Court

Page 529

400 P.2d 529

Earl A. BEMIS, Appellant (Employee-Claimant, below), v. TEXACO, INC. (Employer-Defendant, below), and Wyoming State Treasurer, Appellee.

No. 3414.

Supreme Court of Wyoming.

April 6, 1965.

Rehearing Denied May 11, 1965.

See 401 P.2d 708.

Robert A. Burgess, Casper, for appellant.

John F. Raper, Atty. Gen., Thomas A. Burley, Sp. Asst. Atty. Gen., Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

Earl A. Bemis, an employee of Texaco, was injured by an industrial accident on May 29, 1954. X ray revealed a compression fracture of the interior part of the eighth dorsal body. This fracture was reported well healed by January 22, 1955, and employee was discharged from treatment March 1955. On October 17, 1963, reexamination showed that increased arthritic changes in the 1954 fracture caused a 17 percent disability of the employee's body. In December 1963 Bemis filed an application and claim for award under the Workmen's Compensation Law for 17 percent permanent partial disability, and Texaco approved the claim for $2,040, such amount being based on the provisions of c. 204, § 3, S.L. of Wyoming, 1961. At the instance of the Workmen's Compensation Department and the State Treasurer, the amount was reduced to $1,275, it being their position that the applicable law was c. 143, § 40, S.L. of Wyoming, 1951, and the employee appealed.

Appellant contends that the order entered by the trial court, which reduced the amount, should be reversed because:

(1) The district court did not have jurisdiction to enter the order appealed from as the State Treasurer did not file a petition to reopen the case as required by law, and if a proper petition were filed it was not filed within thirty days after receipt of the order of award as required by law; and

(2) The compensable injury did not occur at the time of the accident, but occurred in 1963 when arthritic changes caused a 17 percent permanent partial disability.

In Claim of Heil, 65 Wyo. 175, 197 P.2d 692, this court, in dealing with a factual situation different from the case at bar, noted with approval the holding in Ohio that provisions relating to compensation of injured employees in force at the time a cause of action accrues are the measure of the right of such employees to participate in the fund and stated, 197 P.2d at 694, that our statutes 'would appear ordinarily to fix the time when the employee's status for compensation as to dependents is to be determined' at the time of the injury and not at some time afterward.

In Warner v. Zaiser, 184 Minn. 598, 239 N.W. 761, 762, it was stated:

'* * * The obligations and rights of the parties as to weekly compensation and other benefits to the employee do become fixed at the date of a compensable accident * * *. The rate of compensation * * * for injury * * * may not be changed after the event takes place that fixes the rights of the parties under the law in force at that particular time.' (Emphasis supplied.)

Problems have often arisen on a somewhat allied subject, that is, whether Workmen's Compensation in force at the time of an accident or that at the time of a workman's resulting death determines the compensation recoverable by a dependent. In this there has been little unanimity of agreement. Annotation, 82 A.L.R. 1244. But even so, that question is substantially different from the one before us, and any solution would be of slight benefit.

Appellant cites as authority for his position Allen v. Kalamazoo Paraffine Co., 312 Mich. 575, 20 N.W.2d 731, wherein it was held that when an eye was injured in an industrial accident, but not to the extent that a compensable...