Deroche v. R.L. Manning Co.

• Decision Date: 15 May 1987
• Docket Number: No. 86-171,86-171
• Citation: 737 P.2d 332
• Parties: Curlin J. DEROCHE, Appellant (Employee-Claimant), v. R.L. MANNING CO., Appellee (Employer-Defendant), v. STATE of Wyoming ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Third-Party Respondent).
• Court: Wyoming Supreme Court

Page 332

737 P.2d 332

Curlin J. DEROCHE, Appellant (Employee-Claimant), v. R.L. MANNING CO., Appellee (Employer-Defendant), v. STATE of Wyoming ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Third-Party Respondent).

No. 86-171.

Supreme Court of Wyoming.

May 15, 1987.

James M. Guill, Goppert & Olson, Cody, for appellant.

Thomas F. Reese, Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellee Manning.

No appearance for appellee State of Wyo.

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

THOMAS, Justice.

The dispositive question in this case is whether the record sustains a finding by the district court that an injured workman failed to meet his burden of proving that he had suffered an increase in incapacity due solely to the injury, which he must do to justify reopening his award pursuant to § 27-12-606, W.S.1977. The district judge authored a decision letter which focused upon the four-year period of limitations found in the statute. In the Order Denying Petition, however, the court also made a general finding against the workman. If the district court's decision had been grounded upon the statute of limitations only, it would be erroneous, but the general finding against the workman, coupled with the record which is available, justifies a conclusion that the district court properly denied this claim for additional benefits. We affirm the decision of the district court.

Curlin Deroche, in his brief, presents only this issue:

"Did the district court improperly deny claimant's petition as not being timely filed under W.S. § 27-12-606 (1977)?"

The employer, R.L. Manning Company, urges a broader consideration, and it states the issues to be:

"1. The order dismissing the Worker's Compensation claim of appellant should be affirmed since the petition to reopen was untimely due to:

"A. The failure to reopen the 1978 award within the time allowed by W.S.. Section 27-12-606.

"B. The 'awards' which appellant asserts extended the statute of limitations were not based upon petitions to reopen and therefore are void ab initio.

"2. The order dismissing the Worker's Compensation claim of appellant should be affirmed based on the record."

The injury which is in issue in this case occurred on July 7, 1974. Deroche, then an employee of R.L. Manning Company, suffered a work-related injury to his back which eventually required surgery. On October 5, 1978, the district court entered its order authorizing the payment of all of Deroche's medical expenses, and it also authorized further examination and treatment. In May of 1981, a petition to reopen the case was filed which pointed out that Deroche had received no award for temporary total disability payments because his attorney assumed they would be paid as a matter of law without a request being made. An order was entered which modified the earlier order and awarded temporary total disability payments for the period from February 17, 1976 through May 10, 1977. Deroche continued with treatment for back pain, and in September of 1983, he filed another petition seeking to have his case reopened so that additional funds could be awarded for surgery he proposed to obtain in Canada pursuant to the recommendation of his treating physician. At that time, both the Worker's Compensation Division of the State of Wyoming and R.L. Manning Company objected to the petition for further funds for the requested surgery. R.L. Manning Company also objected to any further temporary total disability payments and to any permanent partial disability award.

On March 22, 1985, R.L. Manning Company filed its petition which objected to all earlier claims and awards and requested the district court to reopen and evaluate Deroche's worker's compensation claims pursuant to § 27-12-606, W.S.1977. That petition alleged fraud or mistake and the fact that Deroche's back injury in part was attributable to a separate non-compensable injury and was not solely due to the 1974 work-related injury. Subsequently, R.L. Manning Company raised the issue of the timeliness of Deroche's 1983 petition while at the same time alleging that he had failed to meet his burden of proof pursuant to § 27-12-606, W.S.1977.

The hearing in this case was held on June 24, 1985. The proceedings were not reported, and consequently, there is no transcript. The court record and depositions taken from several physicians who had treated Deroche were placed into evidence. On November 27, 1985, the district court furnished its decision letter in which it concluded that Deroche's petition to modify or amend his earlier worker's compensation award related only to the 1978 award and was not timely pursuant to § 27-12-606, W.S.1977. On January 15, 1986, the district court then entered its order denying Deroche's petition on the grounds that it was untimely, but the court also included a general finding in two respects:

" * * * [T]he court * * * generally finds that the petition and amended petition of the Employee-Claimant should be denied.

* * *

* * *

"Wherefore, the petition and amended petition of the Employee-Claimant must be denied as untimely and the Court finds generally in favor of the Employer-Respondent and denies the petition and amended petition and denies the payment of any Worker's Compensation claims."

The several depositions of physicians who had treated Deroche demonstrate that none of the doctors, including those relied upon by Deroche, testified that there was any increase in his disability due solely to his work-related injury. The testimony was conflicting as to whether or not additional surgery would reduce the pain that Deroche claimed. There is some testimony that Deroche, subsequent to the 1976 surgery, may have developed a condition described as lumbar stenosis, a narrowing of the spinal canal. This condition could possibly result from scarring from the earlier back surgery. Most of the physicians testified that Deroche had experienced a permanent disability of at least five percent of the whole body, but one doctor stated that Deroche experienced no permanent disability, nor was he at the time suffering from any temporary total disability. In response to cross-examination by counsel, that doctor testified:

"Yeah, I would agree that if the man complains of some back trouble, that that kind of work [roughnecking in an oil field] is going to be very difficult for him; but I must say that it's just amazing and I think a sad commentary on our society and on our compensation system that a man should be disabled for ten years from the age of 29 on with no gainful employment when there's all kinds of employment that he could have done."

Of those physicians who assigned some permanent total disability rating, there was a general consensus that the degree of disability had not changed subsequent to the 1976 surgery. Furthermore, several of the doctors testified that Deroche's back condition was exacerbated by his incessant overweight condition. There also was uncontradicted testimony which indicated that Deroche's recent back problems were attributable to a re-injury of his back by nonwork-related events.

Addressing initially the timeliness of Deroche's claim, this is not the first time this aspect of the statute has been addressed. Section 27-12-606, W.S.1977 provides:

"Where an award of compensation has been made in favor of or on behalf of an employee for any benefits under this act [§§ 27-12-101 through 27-12-804], an application may be made to the clerk of district court by any party within four (4) years from the date of the last award, or at any time during which monthly payments under an award are being made, for additional benefits of any type or nature or for a modification of the amount of the award on the ground of increase or decrease of incapacity due solely to the injury, or upon grounds of mistake or fraud."

In Matter of Injury to Millsap, Wyo., 732 P.2d 1065 (1987), we held that a petition to reopen was timely if filed within four years of an award for any benefits. In that case, we held that an order to pay a doctor's bill for a worker's compensation claim was a judicial determination which extended the time for a petition to reopen to four years.

Following Matter of Injury to Millsap, supra, it is clear that the 1981 order entered by the district court in this case, which provided for the payment of temporary total disability payments, was a judicial determination and an award of any benefits for purposes of § 27-12-606, W.S.1977. In addition, the record discloses the payment of several bills for treatment of Deroche's back condition as recently as 1985....