Claim of Grindle

• Decision Date: 16 July 1986
• Docket Number: No. 85-249,85-249
• Parties: In the Matter of Worker's Compensation Claim of Doloris W. GRINDLE, Employee, Claimant, Bethesda Care Center, Employer. Doloris W. GRINDLE, Appellant (Employee-Claimant), v. The STATE of Wyoming, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant).
• Court: Wyoming Supreme Court

Page 166

722 P.2d 166

In the Matter of Worker's Compensation Claim of Doloris W. GRINDLE, Employee, Claimant, Bethesda Care Center, Employer.

Doloris W. GRINDLE, Appellant (Employee-Claimant), v. The STATE of Wyoming, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant).

No. 85-249.

Supreme Court of Wyoming.

July 16, 1986.

Tony S. Lopez, Zimmers, Bluher & Lopez, Laramie, for appellant (employee-claimant).

A.G. McClintock, Atty. Gen., and Patrick J. Crank, Asst. Atty. Gen., for Appellee (objector-defendant).

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Chief Justice.

The issues which must be resolved in this case relate to the correctness of the finding of the district court that Doloris Grindle had sustained a readily apparent injury which caused the statute of limitations relating to worker's compensation claims to begin to run; whether Doloris Grindle's lack of knowledge with respect to the statutory scheme generally and the applicable statute of limitations specifically excused her from timely filing of a claim; and whether the district court erred in its decision that the failure of the employer to file a report required by statute did not prejudice the claimant. We affirm the decision of the district court.

Ms. Grindle, who is a licensed practical nurse, began employment as a nurse's aide at Bethesda Care Center in January, 1984. She first was hired as a nurse's aide, and later she was promoted to the position of nurse. It is the practice of Bethesda Care Center to conduct an orientation for new employees, and at that time they are informed about worker's compensation. Grindle attended two orientation sessions, the first when she was hired as a nurse's aide and the second when she was promoted to the position of nurse. Grindle denied in her testimony that she ever had been informed of worker's compensation benefits. The record also demonstrates that the notice which relates to worker's compensation and work related injuries, required by statute to be posted, was posted in the staff lounge at all significant times. Grindle testified that she never had seen the posted notice.

On February 15, 1984, Grindle, in accordance with instructions from her supervisor, was assisting an elderly, obese patient back to the patient's bed following dinner. She was behind this patient who was steadying herself on a wheelchair. The patient had complained that without assistance she would be unable to walk halfway back to her bed. After going only about two steps this patient fell down, and Ms. Grindle, in the performance of her duties, made an effort to break the patient's fall. This resulted in both them ending up on the floor. At that time Grindle felt a sharp pain in her back, which then became a severe but dull pain, an "agonizing type thing." The pain later diminished.

In the period of time which followed this pain became chronic, but it was not continuous. It was aggravated when Grindle did heavy lifting or pulling. Ultimately, in April of 1985, she consulted a physician who recommended surgery. This occurred after she began to experience a numbness in "her bottom and down both legs." Having experienced back surgery some ten years previously, Grindle sought a second opinion, and that physician also recommended surgery. She then decided to have the problem corrected, and as a result of that surgery she was in a body cast for several months and received physical therapy.

Immediately after the fall, on February 15, 1984, Grindle consulted with her supervisor, and she then filled out a Bethesda Care Center incident report in which she indicated she had pain in her back and left shoulder. She did not lose any time from work because of this incident, and she did not file any worker's compensation report of the accident until after she was released from the hospital in May of 1985. When a claim for medical services was received the clerk of the district court requested an accident report from the employer, and the director of nursing at Bethesda Care Center completed this form. That individual, however, indicated that the cause of the injury was unknown because the incident report, which indicated pain in the back and left shoulder, did not correlate with Grindle's accident report which reflected lumbar back trouble. At the hearing Grindle testified that the first she knew of her eligibility for worker's compensation benefits was when the surgeon's nurse informed her of the possible availability of those benefits on the day that she was admitted to the hospital.

The procedural history in this instance is that Doloris Grindle did not file her Worker's Report of Accident until May 3, 1985. The worker's compensation file was initiated by a claim from a physician on April 12, 1985. After two other claims for medical services were filed Bethesda Care Center objected to these claims on April 23, 1985. Similar objection was lodged by the Worker's Compensation Division on May 20, 1985. After trial the district court denied worker's compensation benefits holding that the injury was readily apparent on February 15, 1984; the statute of limitations expired on February 15, 1985; and the May 3, 1985, claim for benefits was barred by the statute of limitations. The district judge also decided that there were no facts in this case which would justify an equitable estoppel. Grindle has appealed from this order of the district court.

The statement of issues presented by Doloris Grindle for decision in this case is:

"I. Did the district court err in ruling that the failure of the employer to file its required report pursuant to § 27-12-506 did not prejudice the claimant?

"II. Is lack of knowledge as to the applicable statute of limitations for filing a claim for benefits an excuse for failure to file a timely claim?

"III. Did the trial court err in ruling that the accident of February 15, 1984, constituted a readily apparent injury causing the statute of limitations to run from that date?"

The Worker's Compensation Division asserts that the following questions must be resolved:

"I. Did the district court err in ruling that the failure of the employer to file its required report pursuant to Section 27-12-506, W.S.1977, did not prejudice the appellant?

"II. Does sufficient evidence exist to support the trial court's factual finding that the appellee was not estopped in asserting the applicability of Section 27-12-503, W.S.1977, under Bauer v. State of Wyoming, ex rel. Wyoming Worker's Compensation Division, Wyo., 695 P.2d 1048 (1985)?

"III. Does sufficient evidence exist to support the trial court's factual finding that the injury was 'readily apparent' to the appellant on February 15, 1984?

"IV. Should this court's decision in Martini v. Kemmerer Coal Co., 38 Wyo. 172, 265 P. 707 (1928) be reversed?"

In accordance with our usual rule on appeal we will not consider the first issue presented by the parties.

"Our rule is that in the absence of fundamental error affecting a substantial right of the appellant or involving the jurisdiction of the court, we do not consider questions sought to be raised for the first time on appeal. Hopkinson v. State, Wyo., 664 P.2d 43 (1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); Nickelson v. People, Wyo., 607 P.2d 904 (1980); and Nisonger v. State, Wyo., 581 P.2d 1094 (1978)." Jahnke v. State, Wyo., 692 P.2d 911, 928 (1984).

Other cases which have developed this same basic proposition are Harries v. State, Wyo., 650 P.2d 273, 277 (1982); In the Matter of Parental Rights of PP, Wyo., 648 P.2d 512, 519 (1982); Laramie Citizens for Good Government v. City of Laramie, Wyo., 617 P.2d 474, 478 (1980); Elder v. Jones, Wyo., 608 P.2d 654, 660 (1980); Meuse-Rhine-Ijssel Cattle Breeders of Canada, Ltd. v. Y-Tex Corporation, Wyo., 590 P.2d 1306 (1979); Allen v. Allen, Wyo., 550 P.2d 1137 (1976); Steffens v. Smith, Wyo., 477 P.2d 119 (1970); and Gore v. John, 61 Wyo. 246, 157 P.2d 552 (1945). The record which was filed in this case does not contain any briefs which were presented to the trial court, and opening statements were waived. Our examination of the record does not disclose that Ms. Grindle, in any way, brought to the attention of the trial court any alleged prejudice resulting to her because of the failure of the employer to file an employer's accident report as required by § 27-12-506 W.S.1977. This issue was not presented for disposition in the trial court, and we do not address it on appeal.

Turning then to the question of whether this injury was a readily apparent injury within the definition set forth in § 27-12-503(a), W.S.1977, we conclude that the district court properly found that it was. Section 27-12-503(a), W.S.1977, provides:

"(a) No order or award for compensation involving an injury which is the result of a single brief occurrence rather than occurring over a substantial period of time, shall be made unless in addition to the reports of the injury, an application or claim for award is filed with the clerk of court in the county in which the injury occurred, within one (1) year after the day on which the injury occurred or for injuries not readily apparent, within one (1) year after discovery of the injury by the employee. The reports of an accident do not constitute a claim for compensation."

We have held that "[i]t is the duty of the trial judge as finder of fact to determine and find by a preponderance of the evidence whether there was a compensable injury, and, if so, when it was actually suffered by an employee, * * *." In the Matter of Barnes, Wyo., 587 P.2d 214 (1978); and Big Horn Coal Company v. Wartensleben, Wyo., 502 P.2d 187 (1972). See also Baldwin v. Scullion, 50 Wyo. 508, 531, 62 P.2d 531, 108 A.L.R. 304 (1936) (it is the clear duty of the trier of fact to determine when compensable injury has occurred).

The standard pursuant to which factual findings of a trial court are reviewed is...