Richard v. State ex rel. Wyoming Worker's Compensation Div., No. 91-128

CourtWyoming Supreme Court
Writing for the CourtBefore URBIGKIT, C.J., and THOMAS, CARDINE and MACY, JJ., and LEHMAN; THOMAS
Citation835 P.2d 365
Decision Date28 August 1992
Docket NumberNo. 91-128
PartiesIn the Matter of the Worker's Compensation of Nancy RICHARD, surviving spouse of Barry P. Richard, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant).

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835 P.2d 365
In the Matter of the Worker's Compensation of Nancy RICHARD, surviving spouse of Barry P. Richard, Appellant (Employee-Claimant),
v.
STATE of Wyoming, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant).
No. 91-128.
Supreme Court of Wyoming.
Aug. 28, 1992.

Stephen J. Jouard, Fort Collins, Colo., for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen. and J.C. DeMers, Sr. Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE and MACY, JJ., and LEHMAN, District Judge.

THOMAS, Justice, dissenting.

I dissent from the decision of the majority in this case. It is flawed by error in failing to apply settled jurisprudential rules and by a logical fallacy. Because the majority opinion is in error in these respects, the decision of the district court ought to be affirmed. The principle of liberal interpretation of the workers' compensation statutes could lead to a remand of the case to the district court with instructions for a further remand to the Workers' Compensation Division for additional factual consideration, but that is the limit of any effort this court should undertake to assist Richard's widow.

I have two difficulties with the approach taken by the majority. The first is that, by indulging in the invocation of a factual presumption, the court has improperly substituted itself in the fact-finding role, which is the prerogative of the hearing examiner according to our jurisprudence. The second difficulty, perhaps even more important, is that the presumption upon which the majority relies to affirm the hearing examiner does not resolve the issue in this case and, in fact, the invocation of that presumption simply begs the question.

Our rule is, "The court must accept the agency's finding of fact when it is supported by substantial evidence." Cheyenne Policemen Pension Bd. v. Perreault, 727 P.2d 702, 704 (Wyo.1986) (citing First Nat'l Bank of Worland v. Financial Institutions Bd., 616 P.2d 787, 793-794 (Wyo.1980)). In honoring this rule we accord deference to the findings of fact made by the administrative agency, examining them only to determine whether the record encompasses substantial evidence to support them. Union Pacific R.R. v. Wyoming State Bd. of Equalization, 802 P.2d 856, 859 (Wyo.1990). Following these rules we have reversed a district court in a workers' compensation case holding that the district court could not make the requisite findings of fact to award compensation. We reversed even though we agreed with the

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ruling of the district court that substantial evidence did not support the finding of fact by the hearing examiner that the activities of the injured workman amounted to an injurious practice resulting in the forfeiture of his award of compensation. Wyoming Workers' Comp. Div. v. Hollister, 794 P.2d 886, 891 (Wyo.1990).

The proper authority for finding the facts is the hearing examiner for the Workers' Compensation Division. The hearing examiner found facts to support a theory of employment coverage that is different from the one adopted by this court. This court has no more authority to make its independent factual determination to support a different theory than the district court had in Hollister.

The question for resolution in this case was whether Barry Richard died because of any harmful change in the human organism "arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer" or "incurred while at work in places where the employer's business requires an employee's presence * * *." Wyo.Stat. § 27-14-102(a)(xi)(1991) (emphasis added). Specifically, the issue is whether Richard was "at work in or about the premises occupied, used or controlled by the employer" or "at work in places where the employer's business requires" his presence at the time of the accident that resulted in his death. The majority attempts to resolve that question by invoking a presumption from 1 Arthur Larson, Workmen's Compensation Law § 10.32 (1990). That presumption, however, depends upon the employee being "found dead under circumstances indicating that death took place within the time and space limits of the employment * * * [i.e. 'while at work']."

In the context of Wyoming's statutory language, the presumption could only be useful in determining whether Richard's death fits within the language "arising out of and in the course of employment" if he was at work in accordance with the latter phrase of the statute. The presumption serves to provide the causal connection or nexus factor only if the predicate condition, i.e. the employee is "at work in or about the premises occupied, used or controlled by the employer," is satisfied. The language of the presumption assumes the existence of the critical fact that is in issue in this case, and for that reason the presumption is of no use in attempting to resolve the case. Invoking this presumption simply begs the question and involves the court in circular reasoning.

A review of the history of Wyoming's statutory language is helpful to an understanding of the correct application of the presumption adopted from Larson. We begin with the provisions of the Wyoming statute found in Wyo.Stat. § 124-106-7(1) (1931). By the time this court decided In re Jensen, 63 Wyo. 88, 178 P.2d 897 (1947), the statute had been finally reenacted in 1937 Wyo.Sess.Laws, ch. 128 § 2, and read as follows:

(1) The words "injuries sustained in extra-hazardous employment," as used in this chapter, shall include death resulting from injury, and injuries to employes, as a result of their employment and while at work in or about the premises occupied, used or controlled by the employer, and injuries occurring elsewhere while at work in places where their employer's business requires their presence and subjects them to extra-hazardous duties incident to the business, but shall not include injuries of the employe occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence * * *.

In Jensen, the court adopted an exception to the almost universal rule encompassed in the last phrase of the statutory definitions, and held that coverage under the statute did exist when the employer provided transportation to or from the place where the duties of employment actually begin. In the course of explaining and construing the statute, this court said:

Just here we may recall that the language "while at work" appearing in subdivision (1) of section 124-106-7, W.R.S.1931 hereinbefore quoted has been decided to be synonymous in meaning with the

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phrase "in the course of [his] employment." It was so held, and it would seem correctly, by the Supreme Court of New Mexico in McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867 construing the statute of that state which as before noted so closely resembles our subdivision "(1) aforesaid. (Emphasis added.) In re Jensen, at 63 Wyo. at 117-118, 178 P.2d at 908.

The statute retained that form in...

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