Prentice Clark House v. State ex rel. Worker's Compensation Div.

• Decision Date: 10 July 1985
• Docket Number: No. 84-275,84-275
• Citation: 701 P.2d 1162
• Parties: PRENTICE CLARK HOUSE, an employee of Merit Services, Appellant (Employee-Claimant), v. The STATE of Wyoming, ex rel. WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant).
• Court: Wyoming Supreme Court

Page 1162

701 P.2d 1162

PRENTICE CLARK HOUSE, an employee of Merit Services, Appellant (Employee-Claimant), v. The STATE of Wyoming, ex rel. WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant).

No. 84-275.

Supreme Court of Wyoming.

July 10, 1985.

Rehearing Denied Aug. 26, 1985.

R. Douglas Dumbrill, Hughes & Dumbrill, Sundance, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Terry J. Harris, Asst. Atty. Gen., for appellee.

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

ROONEY, Justice.

Appellant appeals from an order of the district court denying appellant's application for additional benefits under the Wyoming Worker's Compensation Act, § 27-12-101 et seq., W.S.1977. The application alleged "increased incapacity due solely to the injury," and that the court's order of May 17, 1982 modifying an award of permanent total disability "was based on mistakes of fact and mistakes of law."

We affirm.

Appellant was awarded a permanent total disability on July 7, 1979, without a hearing, for injuries suffered in an accident on October 10, 1977. Pursuant to a hearing on August 27, 1981, an order of the court dated May 17, 1982 modified the July 7, 1979 order such that no further disability sums be paid to appellant inasmuch as he no longer suffered incapacity resulting from the October 10, 1977 accident. An application for additional benefits was filed December 22, 1983. It resulted in the order of September 28, 1984, from which this appeal is taken.

Appellant words the issues on appeal:

"1. Did Judge O'Brien exceed his jurisdiction in taking away Prentice House's Worker's Compensation benefits [in the May 17, 1982 order], thereby committing a mistake which justifies reopening of the case?

"2. Has Prentice House, as a matter of law, experienced a change in condition which justifies reopening?

"3. Should the Supreme Court exercise the power of the writ of certiorari to correct the abuses of this case?"

In arguing the first and third of these issues, appellant generally contends that errors of law occurred in connection with the August 27, 1981 hearing and resulting order of May 17, 1982. Not only does the notice of appeal reflect the appeal to be from the September 28, 1984 order, but the final nature of the May 17, 1982 order can be attacked only by normal appellate procedure or as otherwise authorized by statute. Appellant attempted to appeal the May 17, 1982 order, but failed to perfect it properly, and the appeal was dismissed. That appeal cannot be reinstated at this time to examine issues of law which may have been, and should have been, presented at that time.

As pointed out by the district court, the finality of awards made under the Worker's Compensation Act ¹ is relaxed only to the extent provided by § 27-12-606, W.S.1977:

"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."

Under this statute, appellant must meet the burden of establishing (1) a mistake in determination of a material fact, (2) fraud ², or (3) increase in incapacity due solely to the injury. Conn v. Ed Wederski Construction Company, Wyo., 668 P.2d 649, 652 (1983).

Appellant's argument on the first issue presented on appeal does not pertain to an issue of fact but pertains to an alleged mistake of law which properly should have been presented to us in a direct appeal from the May 17, 1982 order and not pursuant to § 27-12-606, W.S.1977. To hold otherwise would negate our rules relative to timely appeal and allow all worker's compensation appeals for legal error to be made within a four-year period--by either party, and for a decrease as well as an increase of the award. Uncertainty as to the status of an award for such a prolonged period would disrupt the administration of worker's compensation.

Appellant's third issue on appeal, a request for review through certiorari, is directed at alleged errors in the proceedings which resulted in the May 17, 1982 order. Such proceedings were subject to direct appeal. Certiorari is not available to review matters on which there is a plain, speedy and adequate remedy by direct appeal. Call v. Town of Afton, 73 Wyo. 271, 278 P.2d 270, 273 (1954); City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892, 895 (1916).

In wording his second issue on appeal, appellant contends that the court erred in not finding a change in appellant's condition "as a matter of law." Actually, the court's findings in this respect were findings of fact. The court's conclusion that appellant "failed to show any increase in incapacity since the August 27, 1981 hearing, much less that any such...