Johner, Matter of

• Decision Date: 20 April 1982
• Docket Number: No. 5592,5592
• Parties: In the Matter of Injury to Jerome JOHNER, an employee of Coal-Onial Homes. Jerome S. JOHNER, Employee of Coal-Onial Homes, Appellant (Employee-Claimant), v. WYOMING STATE TREASURER, ex rel. WORKER'S COMPENSATION DIVISION, Appellee.
• Court: Wyoming Supreme Court

Page 932

643 P.2d 932

In the Matter of Injury to Jerome JOHNER, an employee of Coal-Onial Homes.

Jerome S. JOHNER, Employee of Coal-Onial Homes, Appellant (Employee-Claimant), v. WYOMING STATE TREASURER, ex rel. WORKER'S COMPENSATION DIVISION, Appellee.

No. 5592.

Supreme Court of Wyoming.

April 20, 1982.

Thomas M. Padget, Thomas, O'Neil & Padget, Gillette, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Sr. Asst. Atty. Gen., and Carl J. Hildebrand, Asst. Atty. Gen., for appellee.

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

ROSE, Chief Justice.

This appeal involves a challenge by Jerome S. Johner to the district court's order cancelling his temporary total-disability benefits. ¹ This order also required that an offset be made against the worker's permanent partial-disability award for certain temporary total-disability benefits which the court perceived to have been improperly received. Appellant petitioned the district court to reconsider the offset aspect of its decision, which petition was denied.

Our review of the worker's compensation statutes leads us to conclude that the district court acted without authority in allowing the State to recover the temporary total-disability payments.

We will reverse.

FACTS

The appellant, Jerome Johner, injured his back by falling off a ladder while in the course of his employment for Coal-Onial Homes on October 19, 1977. The worker In July of 1978 a disc was removed from a portion of appellant's back and Mr. Johner continued to comply with the rules and regulations applicable to obtaining temporary disability benefits and his doctor continued to submit reports and bills to the court.

was awarded temporary total-disability benefits under § 27-12-402, W.S.1977. ²

In April of 1981, the district court became concerned that for the three previous months doctors' reports had not been filed with respect to appellant's continuing temporary total-disability status. The district judge inquired of appellant's doctor, who, on May 15, 1981, filed with the court a letter which said that since May of 1980 appellant's condition had not improved. The doctor further reported that, in his opinion, Mr. Johner's condition was stabilized and concluded that the worker had suffered a 20% total permanent partial disability to his body. Upon receipt of this letter, the district court entered the challenged order which declared that appellant, as of May 30, 1980, had ceased to be entitled to any temporary disability payments and that any overpayment would be offset against a future permanent partial-disability award.

THE OFFSET WAS IMPROPER

In entering the challenged order, the district judge was purportedly acting pursuant to the authority contained in § 27-12-611, W.S.1977. That section of the Worker's Compensation law provides:

"(a) Each employee awarded compensation for temporary total disability shall submit himself for medical examination by a physician licensed to practice medicine in this state, upon request by his employer, at a place designated by the employer which is reasonably convenient for the employee. The employee may have a licensed physician present of his own selection. The purpose of the examination is to determine whether the employee has recovered so that his earning power at any gainful occupation for which he is reasonably suited by experience or training, is substantially restored.

"(b) The results of the examination shall be reported by the employer and the physician to the clerk of the district court who made the award in the first instance, and the matter shall be disposed of as the judge deems proper. If the judge finds that the employee has recovered and has been restored to his earning ability, and that compensation should be discontinued, his decision and judgment shall be certified to the director and state auditor and state treasurer and shall be direction to those officers to discontinue compensation payments.

"(c) If an employee refuses to submit to or obstructs the examination, his right to monthly payments shall be suspended until the examination has taken place. No compensation shall be paid during the period of refusal." (Emphasis added.)

As emphasized above, the important portion for purposes of this appeal is subsection (b) which permits the district judge to terminate or continue an employee's temporary benefits upon examination of the physician's reports. The appellant does not challenge the authority of the district court to terminate his temporary payments, but argues that the judge is without authority to order recoupment of alleged overpayment. The State, on the other hand, argues that we should construe § 27-12-611 as permitting, by implication and as a matter of policy, district judges to order repayment in these circumstances. Since § 27-12-611 is silent upon the issue of recoupment, we will agree with the appellant.

As a general rule of construction we have said that the Worker's Compensation law is to be liberally and reasonably construed so that the industry and not the worker will bear the burden of injuries suffered. Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219 (1977); Pease v. Pacific Power & Light Co., Wyo., 453 P.2d 887 (1969); Wright v. Wyoming State Training School, 71 Wyo. 173, 255 P.2d 211 (1953). We have also recognized that worker's compensation is a statutory responsibility and any change or addition to the law is a function of the legislature and not the courts. In re Sikora, 57 Wyo. 57, 112 P.2d 557 (1941). Finally, as a matter of general statutory construction, the rule is that, in construing a legislative enactment, we are bound by the language found within its four corners and we are not at liberty to insert language, words or provisions that do not there appear. Matter of Adoption of Voss, Wyo., 550 P.2d 481 (1976); Lo Sasso v. Braun, Wyo., 386 P.2d 630 (1963). We cannot usurp the power of the legislative branch in deciding what should have been said. Barber v. State Highway Commission, 80 Wyo. 340, 342 P.2d 723 (1959).

With these propositions in mind, it is for us to decide whether or not § 27-12-611 conferred upon the district judge the authority to order recoupment of the temporary disability benefits which the court decided the appellant had received but to which he was not entitled.

This question is new for this court but it has been thoroughly discussed in other jurisdictions. In Tompkins v. George Rinner Construction Co., 196 Kan. 244, 409 P.2d 1001 (1966), it was held that even though the employer subsequently won a challenge to an award for compensation, no recoupment or recovery of the benefits paid to the employee during the pendency of the appeal could be ordered since the legislature had not included a provision therefor. The premise for the court's decision rested in the proposition that the workmen's compensation laws were exclusive and provided the only procedures for obtaining and enforcing an award. 409 P.2d at 1003. Similarly, in State v. Olson, 172 Wash. 424, 20 P.2d 850 (1933), the court held that an absence of a statutory provision precluded the recoupment of funds paid to an employee...