Herring v. Welltech, Inc.

• Decision Date: 16 March 1983
• Docket Number: No. 5768,5768
• Parties: In the Matter of the Worker's Compensation Claim of Carl HERRING, Appellant (Plaintiff), v. WELLTECH, INC., Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 361

660 P.2d 361

In the Matter of the Worker's Compensation Claim of Carl HERRING, Appellant (Plaintiff), v. WELLTECH, INC., Appellee (Defendant).

No. 5768.

Supreme Court of Wyoming.

March 16, 1983.

Steven M. Avery of White, Avery & Spurrier, Riverton, signed the brief and appeared in oral argument on behalf of appellant.

John R. Vincent of Hettinger & Leedy, P.C., Riverton, signed the brief and appeared in oral argument on behalf of appellee.

Before ROONEY, C.J. ^* , and RAPER, THOMAS, ROSE ^** and BROWN, JJ.

ROONEY, Chief Justice.

Appellant was an employee of appellee. Appellant appeals from an order of the district court denying his petition to reopen a worker's compensation case which had been closed for failure on his part to file an answer to appellee's denial of his claim.

We reverse and remand.

Following is a pertinent chronology:

12/1/81--Appellant slipped while going from pickup to appellee's shop and hit head on handrail. Treated and released from emergency room at hospital.

12/4/81--Clerk of court received $32.00 claim from hospital for such treatment. Clerk of court paid claim with file notation that appellee telephonically approved.

12/7/81--Clerk of court sent "consent card" ¹ form to appellee.

12/16/81--Notation was placed in file that appellee called and that "apparently employee told doctor it should go on company insurance and they took it to mean WC [worker's compensation] rather than group carrier." Clerk of court sent letter to appellant advising him that appellee informed her that the charges were to be against insurance carrier rather than worker's compensation, and "[i]f you do not agree with the above, you have 10 days in which to file a claim for Worker's Compensation benefits."

1/12/82--Appellee returned this "consent card" marked disapproved and "accident was not work related."

1/27/82--Appellant filed employee's report and claim with notation that he had not received the letter from the clerk of court dated December 17, 1981, until January 25, 1982. File contained notation that clerk of court had telephonically advised appellee that appellant had filed a claim and that appellee advised that it would file an accident report and "withdraw denial."

2/3/82--Appellee filed employer's report of injury in which it stated that the accident arose out of employment. Appellee did not answer the question as to whether or not the accident was due solely to the culpable negligence of appellant.

3/12/82--Appellee returned "consent card" which referred to the $32.00 claim marked approved. Claim was filed by Dr. Nastasi for x-rays of appellant taken on March 5, 1982 in the amount of $186.00.

3/16/82--Appellant filed a claim for total disability for period December 15, 1981, to March 15, 1982, in amount of $5,403.18. "Consent card" sent by clerk of court to appellee for the claim.

3/22/82--Appellee returned "consent cards" re Dr. Nastasi's claim and re total disability claim marked disapproved.

3/25/82--Appellee filed Petition Protesting Benefits and Statement of Reasons for Objection to Claim.

3/26/82--Clerk of court sent appellant a letter enclosing copy of appellee's denial of claim and advising him that he must file an answer within ten days and if he did not do so, the claim would be dismissed.

3/30/82--Appellant filed form for transfer of case to Natrona County.

4/5/82--Appellee disapproved transfer of case to Natrona County; the clerk of court advised appellant that if he wished the matter to be "resolved through court hearing," he could request one; and the clerk of court advised appellant that his answer to the petition requesting benefits and his request for a hearing on the question of transfer of the case to Natrona County "must be filed * * * no later than April 10, 1982" or the case would be closed.

4/13/82--Clerk of court noted in file that appellant had not filed an answer and that "this case is closed." Copies of notation were sent to appellant and appellee.

4/27/82--Appellant filed his answer to petition.

5/17/82--Court ordered that appellant's answer be filed in "this closed case" and that no further action be taken in the matter inasmuch as the case was closed for failure of appellant to answer appellee's denial of the claim or request a hearing herein within the allotted ten days.

7/26/82--Appellant filed petition to reopen the case.

8/4/82--By order, the court denied the petition to reopen. This appeal is from such order.

Section 27-12-502(a), W.S.1977, provides in pertinent part:

"If an employee is injured he shall make a report of the occurrence and general notice of the injury to the employer within twenty-four (24) hours after the injury became apparent, and to the clerk of court within twenty (20) days thereafter, and file the report in the office of the clerk of court of the county in which the accident occurred. * * * "

Section 27-12-506(a), W.S.1977, provides in pertinent part:

"When an injury is suffered by any employee, the employer must file a report * * * with the clerk of court in the county in which the injury occurred within ten (10) days after the date on which the employer is notified of the injury. * * * "

Section 27-12-604, W.S.1977, provides in pertinent part:

"(a) If the employer in his report of the injury alleges that the injury was due solely to the culpable negligence of the injured employee, or that the claim for compensation is one not coming within the provisions of this act [§§ 27-12-101 to 27-12-804], then a jury may be demanded by either party and the cause tried as a court proceeding. * * *

"(b) In contested cases the contestant shall file a petition within ten (10) days following notice to the employee that the employer's report has been filed, stating the reasons for protesting the award and facts upon which the contestant relies * * *. The other party shall file an answer within ten (10) days after filing of the petition. If the contestant's statement is not filed within ten (10) days the court may dismiss this objection and if the answer is not filed within ten (10) days the court may dismiss the claim."

The court dismissed the claim in this case for failure of appellant to file an answer to the objection of appellee within ten days as required by § 27-12-604(b), W.S.1977. The objection was filed March 25, 1982, and the answer was filed April 27, 1982. However, many of the other filing deadlines were not met in this case. Appellee failed to return the "consent card" within ten days after receipt of it. The card was mailed December 7, 1981, and appellee telephoned in response on December 16, 1981, but the card was not returned until January 12, 1982. Appellant failed to file a report of the accident with the clerk of court within twenty days after the accident as required by § 27-12-502(a), W.S.1977. The accident was on December 1, 1981, and appellant's report was filed January 27, 1982. Appellee failed to file a report of the accident within ten days after being notified of the accident as required by § 27-12-506(a), W.S.1977. Appellee was notified on December 7, 1981, and his report was filed on February 3, 1982. It is noted that there were some telephonic communications between the parties and the clerk of court but that does not satisfy a statutory requirement for "filing." Appellee failed to file his petition protesting the award within ten days following notice to the employee that the employer's report had been filed as required by § 27-12-604(b), W.S.1977. Such report was filed February 3, 1982, and the petition was filed March 25, 1982.

In construing a statute, words must be given their plain and ordinary meaning. Jahn v. Burns, Wyo., 593 P.2d 828 (1979); and Belco Petroleum Corporation v. State Board of Equalization, Wyo., 587 P.2d 204 (1978). The result in this case becomes obvious when the plain words of the statute are applied to the facts of the case.

It could be said that the first failure to timely meet the procedural deadlines was appellee's failure to return the "consent card" within ten days, and that such failure resulted in a conclusive presumption that appellee waived its right to a hearing on the claim--as was recited on the card. See fn. 1, supra.

It could also be said that failure to meet the other deadlines precluded the respective parties from the relief claimed by each of them. However, we need not rest our determination on this time factor. When appellee filed the required report of the accident, it acknowledged that the accident was "due to employment." Appellee also returned a "consent card" on which it approved a claim for $32.00. The report is an essential and required part of the record used in processing a worker's compensation claim. It is true that at the time the report and the approval was indicated on the "consent card" the only filed claim was $32.00 for emergency room treatment. Dr. Nastasi's claim for $186.00 and the disability claim for $5,403.18 were submitted at a subsequent time. But the amount of the claim is not a factor in determination of whether or not the accident occurred during the course of employment. Once a claim is established as having occurred within the course of employment and not due to the culpable negligence of the employee--(the latter qualification is not here in question), these two factors cannot be challenged in conjunction with other claims arising out of the same incident, unless relief is granted under Rule 60(b), W.R.C.P., or § 27-12-606, W.S.1977; see fns. 2, 3, and 4, infra.

Appellee's acknowledgment that the accident arose out of employment took the issue out of a contested status and the status would not be changed at a later date by filing a petition which contested the claim on the basis that it did not arise out of such employment. It would become almost impossible to properly administer the Worker's Compensation Act if the employers were permitted to change their decisions in such a manner after money was paid out on the basis of an...