Black Watch Farms v. Baldwin
| Decision Date | 10 September 1970 |
| Docket Number | No. 3860,3860 |
| Parties | BLACK WATCH FARMS, Appellant (Employer below), v. Charles K. BALDWIN, Appellee (Employee below). |
| Court | Wyoming Supreme Court |
Joseph F. Maier, Torrington, for appellant.
John O. Callahan, Torrington, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER and McEWAN, JJ.
This matter is before us on an appeal from an order of the district court in Goshen County pertaining to workmen's compensation.
The employer, Black Watch Farms, filed written objections to an award claimed by Charles K. Baldwin, employee. Trial was had to the court without a jury. The court ordered the Workmen's Compensation Department to pay all claims for medicine and drugs and monthly compensation at the rate of $275 per month to the date of the hearing, plus mileage incurred by the employee. It was ordered that the court retain jurisdiction of the matter for further consideration and disposition. The employer has appealed.
Baldwin was injured July 8, 1968 while doing general ranch work for employer. A bull charged a metal gate and pushed the gate against the employee's leg while he was astride a horse. The accident caused a bruising of the leg resulting in a hematoma on the right leg below the knee. The hematoma was treated by Dr. Keenan in a hospital at Torrington and Baldwin was under Keenan's care for about a month.
At the instance of Dr. Keenan, Baldwin was examined by Dr. Kline, an orthopedic surgeon in Cheyenne. Dr. Keenan testified Dr. Kline reported he could find no reason for the pain Baldwin complained of. An order was entered December 2, 1968 permiting Baldwin to change physicians and to engage the professional services of Dr. Oliver E. K. Hall of Grand Junction Colorado for a period not to exceed 60 days from the date of the order.
The record discloses that Dr. Hall's first report and fee bill showed the nature and extent of injuries to be 'Sprain lumbosacral spine and right hip, ruptured lumbar disc.' The next report showed Hall had performed surgery on the employee. This report stated a laminectomy was performed at L4-5, at which level a myelogram had revealed a large filling defect; that part of the spinous process of L4 and L5 was excised along with the interspinous ligament and ligamentum flavum; that nerve roots were explored as was the spinal canal; and that no retropulsed disc was encountered.
Despite the 60-day limitation in the order authorizing treatment by Dr. Hall, periodic reports were submitted by Dr. Hall up to the time of the hearing. These reports purported to certify that the employee continued to be disabled; and in the meantime Baldwin continued to claim and receive temporary total disability up to the time to hearing.
Finally, at the end of seven months after the order authorizing the employee to obtain the services of Dr. Hall for 60 days, the employer filed its written objections to further awards of medical payments or compensation. It was another three months before a hearing was held.
The testimony of Baldwin at the court hearing revealed that, prior to his accident at the Black Watch ranch, he had a leg injury in the ankle requiring an operation; that he had double hernia in 1962; that he had a neck injury resulting in an operation on his spinal column or vertebrae at the top portion of his neck; that he fell on a cement floor, possibly in 1962; that he had a shoulder injury but had it fixed while rodeoing; and that he received an injury from wrestling in 1953, which resulted in a blocked vertebrae first and then a second vertebrae.
As a result of the employer requesting an examination by an impartial physician, Baldwin was examined by Dr. B. B. Johnson, an orthopedic surgeon in Colorado where Baldwin was living. Within a few days after Dr. Johnson's report was filed, the employer filed its written objections.
One of the points urged by Black Watch on appeal is that the employer was entitled to have the payment of temporary total disability discontinued and the ascertainment of permanent partial disability, if any, made.
We find the evidence adduced at the court hearing insufficient to show Baldwin entitled to temporary total disability compensation at the time of the hearing. It would appear, then, that appellant's position on this point has merit and that the case will have to be remanded for a determination of whether there is permanent partial disability resulting from the accident in question. If so, the extent of such disability would of course need to be determined.
Although parties have not discussed the matter, we deem it important to point out that the burden is on a claimant of workmen's compensation benefits to show that he is entitled to an award of compensation. Jennings v. C. M. & W. Drilling Company, 77 Wyo. 69, 307 P.2d 122, 123-124; Bemis v. Texaco, Inc., Wyo., 400 P.2d 529, 531; In re Hardison, Wyo., 429 P.2d 320, 322; Sheridan Coal Co. v. Harnsberger, 43 Wyo. 226, 3 P.2d 80, 82; Associated Seed Growers, Inc. v. Scrogham, 52 Wyo. 232, 73 P.2d 300, 307.
It will help to understand the burden of proof if we keep in mind that what was being heard by the court was Aldwin's claim for monthly temporary total disability benefits and the employer's objection to further awards for temporary total disability.
It is understandable that such awards are made monthly on the strength of a physician's report and certification that the workman is still totally disabled-if there is no objection on the part of employer. Section 27-114, W.S.1957, C.1967, makes it clear, if there be a dispute as to the right of the injured employee to receive compensation or as to the amount thereof, then it is the duty of the judge to set the case down for hearing at the earliest possible date.
Appellee misconstrues the effect of this section. He assumes the claims of the workman and the reports of his physician are evidence in the case. In support of his position, he points to the following provision:
'The hearing shall be conducted upon the statement and report filed by the employer, and such formal claims as may be presented and filed with the clerk of the district court by or on behalf of the injured workman.'
The language quoted does not include reports of physicians, but the...
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