Reed, In re
| Citation | 444 P.2d 329 |
| Decision Date | 08 August 1968 |
| Docket Number | No. 3689,3689 |
| Parties | In the Matter of the injury to Frank M. REED, Employee of Husman Bros., Inc., Employer. WYOMING STATE TREASURER ex rel. WORKMEN'S COMPENSATION DEPARTMENT, Appellant (Petitioner below), Husman Bros., Inc., a Corporation, Appellant (Employer below), v. Frank M. REED, Appellee (Employee below.) |
| Court | United States State Supreme Court of Wyoming |
Joseph E. Darrah, Sp. Asst. Atty. Gen., Cheyenne, for Wyoming State treasurer.
L. A. Yonkee (of Redle, Yonkee & Redle), Sheridan, for Husman Bros.
Robert E. Holstedt, Sheridan, for appellee.
Before HARNSBERGER, C. J., and GRAY, McINTYRE and PARKER, JJ.
Frank M. Reed, claimant, a 45-year-old resident of Sheridan, and his partner subcontracted with Husman Bros., Inc., prime contractors, to do certain fencing work in connection with a Bureau of Roads project at Centennial, Wyoming, the claimant being reported by Husman Bros. to the Workmen's Compensation Department as on the payroll. The fencing work had been commenced July 5, 1967, and while setting a post about 11 a. m., August 23, Reed felt a pain through his arms and chest. He tried to work for a time, went to lunch at noon, and after going back on the job, felt worse. He drove to Laramie to see a doctor who took cardiograms and an X ray and called claimant's wife in Sheridan, who came to Centennial where the two stayed overnight and next day returned to Sheridan. There the employee saw Dr. Don Reed, who placed him in the hospital with a diagnosis of acute coronary occlusion of the posterior wall of the heart. He was discharged from the hospital on September 4 and thereafter filed a report of the accident as did Husman Bros. The case was subsequently transferred to Sheridan for hearing, at which time both the employer and employee were represented by counsel. The only medical testimony offered was given by Dr. Reed. The court found the claimant to have been engaged in extra-hazardous employment for Husman Bros. and that he did 'suffer' an accident while so engaged in his duties and was entitled to all the benefits accruing under the Workmen's Compensation Law as an employee. Thereafter the Wyoming State Treasurer, ex rel. Workmen's Compensation Department, under the provisions of § 27-129, W.S.1957 (Compiled 1967), filed a petition to reopen the case, which was denied, and the cause is before us on the appeal of both the State Treasurer and the employer. Three questions are presented for determination:
(1) Was appellee and employee of the Husman Bros. under provisions of the Workmen's Compensation Law?
(2) Was the dismissal of the petition to reopen reversible error?
(3) Was the injury sustained a compensable injury?
We find no merit in the first-mentioned ground of appeal. Although there is some intimation and casual reference by Husman Bros. to the fact that appellee was performing a contract which created the relationship of principal and independent contractor rather than employer and employee, there is no cogent argument presented to substantiate this, and the fact that the corporation reported him to the Workmen's Compensation Department as being on its payroll is inconsistent with the contention.
The second question raised, i. e., the propriety of the court's refusal to reopen the case is primary. The court's order, which denied the petition to reopen, recited that the treasurer was notified of the previous hearing, 'failed to appear at said hearing and there being no just cause shown, the Court finds that there is no probable cause to re-open.' In analyzing the problem, we note that § 27-129, W.S.1957 (Compiled 1967), under which the petition was filed, appears to be unique, Judge Blume having said of its predecessor (identical in all respects here relevant), 'This statute-the like of which we have not found to exist in any other commonwealth-must be construed in the light of the situation which was sought to be remedied thereby.' Marsh v. Aljoe, 41 Wyo. 200, 284 P. 260, 262. It provides:
* * *'
In the present situation, the treasurer filed a petition which stated 'that said petitioner is informed and believes that there is probable cause to believe error was made on the grounds to which the award was made, namely that the alleged injury sustained by said employee on the 23rd day of August, 1967 was not an injury sustained in extrahazardous employment as defined by Section 27-49(III)(a), Wyoming Statutes 1957, but was a disease rather than 'an injury and personal injury' and not compensable be definition set out in Section 27-49(III)(b), Wyoming Statutes 1957.'
Appellants call attention to various discussions of Judge Blume in Marsh v. Aljoe, supra, 284 P. at 262, 'the reopening of the case by the state treasurer is designated as a 'right'; that the law contemplates a 're-trial' of the case when a proper showing is made.' That opinion then goes on to discuss a matter not here relevant, i. e., the question of presenting new evidence and the duty of the trial court to determine whether or not this would have a material bearing on the case, but thereafter, 284 P. at 263, expresses views which we deem to have some bearing here, 'We think that the Legislature contemplated that he (state treasurer) should be given the advantage of a regular trial, the same as is given other parties in the case, and meant to make his right thereto, within the limits mentioned in the law, as broad as the right of the employer and employee, so as to give the state full measure of protection.'
Appellee in resistance urges that the petition to reopen does not show any probable cause or inform the court as to what might be the probable cause to believe that error was made but makes only a bald statement and insists that March v. Aljoe, supra, on which appellant relies is so different as to be unpersuasive.
We have no concrete evidence of the legislature's intention in the enactment of the mentioned statute since a record of any hearings or proceedings regarding its purpose is unavailable, but we give considerable weight to Judge Blume's analysis and...
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...B Services, Inc., 2005 WY 130, ¶ 30, 120 P.3d 1031, 1042, citing In re: Claims of Naylor, 723 P.2d 1237, 1240-41 (Wyo.1986); In re Reed, 444 P.2d 329, 330 (Wyo.1968). 29 Diamond B Services, Inc., 2005 WY 130, ¶ 30, 120 P.3d 1031, 1042, citing Combined Insurance, 584 P.2d at 1043. 30 See Dia......