Injury to Loveday, Matter of

• Decision Date: 17 December 1985
• Docket Number: No. 85-84,85-84
• Citation: 711 P.2d 396
• Parties: In the Matter of the INJURY TO Johny LOVEDAY, an Employee of Exeter Drilling. Johny LOVEDAY, Appellant (Claimant), v. WYOMING STATE TREASURER, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector).
• Court: Wyoming Supreme Court

Page 396

711 P.2d 396

In the Matter of the INJURY TO Johny LOVEDAY, an Employee of Exeter Drilling.

Johny LOVEDAY, Appellant (Claimant), v. WYOMING STATE TREASURER, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector).

No. 85-84.

Supreme Court of Wyoming.

Dec. 17, 1985.

Mark L. Hughes of Hughes & Dumbrill, Sundance, for appellant (claimant).

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Terry J. Harris, Asst. Atty. Gen. (argued), for appellee (objector).

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

CARDINE, Justice.

The appellant, John Loveday, applied to the district court for modification of a worker's compensation award he had received following an oil rig accident. Neither the Wyoming Worker's Compensation Division nor Exeter Drilling, the appellant's employer, contested the application for modification. The district court, nevertheless, held a hearing and denied the application.

Appellant raises two issues on appeal and the appellee, the State of Wyoming, agrees that they are controlling. The two issues we must decide are:

(1) whether the district court could lawfully conduct a hearing and deny the application for modification in the absence of it being contested by the State or by the employer; and

(2) assuming that the district court's action was lawful, whether its denial is supported by the evidence.

We affirm.

FACTS

On August 27, 1981, appellant suffered a severe back injury while working on an oil rig for his employer, Exeter Drilling. A period of disability and medical treatment ensued during which appellant filed for and received worker's compensation benefits. Eventually, appellant applied for a permanent partial disability rating of 65% of the man as a whole; and the court granted the application based on appellant's educational level, age, and chances for reemployment in jobs requiring physical labor. Appellant received his permanent partial disability award in two lump sums totaling $30,000.

Appellant continued to suffer severe back pain from his work-related injury and subsequently underwent surgery to remove Harrington rods that had been implanted in his back. Although the rods were successfully removed, appellant suffered a heart attack within a day after the surgery. Appellant's heart condition and continued back problems made it impossible for him to perform physical labor in the oil industry. More sedentary work was precluded by appellant's age, educational background and continued pain in his back and legs. He therefore requested that the district court modify his permanent disability rating from 65% to 100%.

The district court set the matter for a contested hearing and sent notices to appellant the Worker's Compensation Division, and the employer. Neither the Worker's Compensation Division nor the employer appeared at the hearing to contest the application for modification. Appellant, his lawyer, and appellant's back surgeon, Dr. Baker, appeared and participated in the hearing. It was clear from Dr. Baker's undisputed testimony that appellant was 100% disabled, but it was not clear that the heart attack which increased the disability was caused by the surgery. During the taking of testimony, the court interrupted direct examination and asked Dr. Baker exactly when the heart attack occurred. Dr. Baker said that the heart symptoms had appeared almost immediately after surgery, meaning that afternoon or the next day. Dr. Baker's only other reference to causation occurred when he was asked about the level of appellant's disability. Dr. Baker stated:

"[A]t the time of his initial evaluation for disability, I thought that it was 65% related to the back only. Unfortunately, this was complicated by a--a complication at the time of surgery or shortly thereafter, while still in the hospital, with a heart attack, which, again, left him with some degree of limitation."

Then, in response to a straightforward question about the cause of the heart attack, Dr. Baker answered:

"Well, I guess one would have to say that the injury to his heart did occur at the time of surgery under an anesthetic. I only can say that because he--there were no complaints of this before and he did have trouble afterwards that I would have to voice my opinion on that reasoning."

This response concluded Dr. Baker's testimony.

At the close of the hearing, the district court denied appellant's application for a higher permanent disability rating. The court held that it could not view the case as "strictly a default matter"; that "the employee has an obligation to show his entitlement to benefits under the existing statutes"; that the court based its finding upon the evidence presented at the hearing; and, finally, that there had not been "sufficient credible evidence--medical or otherwise--to establish a causal link between the back surgery and the heart attack." Without that link, the appellant had not satisfied his burden of proving that there had been an "increase * * * of incapacity due to solely to the injury" as required by § 27-12-606, W.S. 1977 (June 1983 Replacement), the statute which allows modification of an award.

THE DISTRICT COURT'S AUTHORITY TO HOLD AN UNCONTESTED HEARING

This is not the first time we have reviewed a trial court's decision to deny a worker's uncontested application for modification. Recently, we affirmed such a denial on grounds that the worker did not carry her burden of proving an increase in incapacity due solely to her original injury. Matter of Abas, Wyo., 701 P.2d 1153 (1985). In Abas, both parties assumed that the district court had authority to hold a hearing and deny a modification though neither the employer nor the Worker's Compensation Division contested the application by the employee. In this case, however, appellant makes no such assumption but instead brings squarely before us the issue of the district court's authority to hear and deny an application that is not contested. Appellant argues that the Wyoming statutes do not authorize district courts to hold hearings or deny modification applications when neither the employer nor the Worker's Compensation Division contests the application.

It is true that there is no specific statute providing for a modification hearing when the application is uncontested. The elaborate hearing procedures set forth in §§ 27-12-602 through 27-12-605, W.S.1977 (June 1983 Replacement), are designed for contested cases. Also, there is no statute which explicitly empowers the district court to deny uncontested applications for modification. Nevertheless, we believe that §§ 27-12-606 and 27-12-607 W.S.1977 (June 1983 Replacement), implicitly permit the district court to hold hearings and deny those applications. ¹

Section 27-12-607 provides in part:

"Every award within the meaning of this act [§§ 27-12-101 through 27-12-804] is a judicial determination of the rights of the employer, the employee and the disposition of money within the various accounts provided under this act as to all matters involved."

This statute puts an application for modification on a much different footing than an initial claim. When a claimant applies for a modification, he is seeking to alter an award which was established by a final judicial determination. As we stated recently in Hunteman v. Ward Transport, Inc., Wyo., 706 P.2d 1126, 1129 (1985), "[a worker's compensation award] is subject to the concept of finality, and the burden of establishing the ground to reopen is upon the claimant." See also House v. State ex rel. Worker's Compensation Division, Wyo., 701 P.2d 1162 (1985); Matter of Abas, supra, 701 P.2d 1153; Conn v. Ed Wederski Construction Company, Wyo., 668 P.2d 649 (1983). Although Hunteman was a contested case, we see no reason why the same principle of finality does not apply to an uncontested case. Section 27-12-607 does not distinguish between contested and uncontested modifications. In either case, the underlying awards to be modified are "award[s] within the meaning of this act" and thus subject to finality under § 27-12-607.

The finality principle of § 27-12-607 is not absolute. The legislature has attempted, through § 27-12-606, W.S.1977 (June 1983 Replacement), to "balance the concept of finality as applied to worker's compensation awards with the need to assure that injured workmen receive the full amount of any benefits to which they are entitled under the law." Conn v. Ed Wederski Construction Company, supra, 668 P.2d at 653. Section 27-12-606 was not intended to provide an easy means for the workman to obtain a modification. On the contrary, it provides quite limited grounds for modification. Conn, supra. It provides in part:

"Where an award of compensation has been made in favor of * * * an employee for any benefits under this act * * *, an application may be made to the clerk of district court * * * for * * * modification of the amount of the award on the ground of increase * * * of incapacity due solely to the injury, or upon grounds of mistake or fraud."

Besides providing limited grounds for modification, § 27-12-606 places the burden of proving those grounds upon the workman. In Hunteman v. Ward Transport, Inc., supra, 706 P.2d at 1129, we stated "[T]he burden of establishing the ground to reopen is upon the claimant. * * * The same burden must pertain to establishing an increase of incapacity due solely to the claimed injury. This burden is no different from the usual burden of proof cast upon the injured workman in worker's compensation matters. * * * The difference with respect to § 27-12-606 is that the workman must meet the burden in order to have the claim reopened. If he succeeds in persuading the district court to reopen the claim, then he quite likely will have met his burden of proof to establish entitlement to additional awards, although that might not be true in all instances. Even though the claim were...