Richard v. State ex rel. Wyoming Worker's Compensation Div.
| Decision Date | 28 August 1992 |
| Docket Number | No. 91-128,91-128 |
| Parties | 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). |
| Court | Wyoming Supreme Court |
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.
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 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 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 Wyo.Stat. § 72-106(1) (1945), except that a parenthetical reference to "[article]" was inserted after the word "chapter." The fact that in the published statute paragraph (1) was merged into paragraph (k), without separate spacing, was the cause of some consternation to the Jensen court, which complained that it had been "(erroneously designated as subdivision '1' under subdivision (k) * * *)" In re Jensen, 63 Wyo. at 99, 178 P.2d at 900. The same statutory language was used in Wyo.Stat. § 27-49[III.](a) (1957), except that the phrase "as used in this chapter" was deleted, and the phrase "including exposure to ionizing radiation" was added after the phrase "subjects them to extra-hazardous duties incident to the business" by 1967 Wyo.Sess.Laws 1967, ch. 55 § 1.
The statute remained in this form until 1975 when the Wyoming Worker's Compensation Act was adopted in 1975 Wyo.Sess.Laws, ch. 149, at which time Wyo.Stat. § 27-311(n) (1957) was enacted to read:
(n) "Injury" means any harmful change in the human organism other than normal aging, and includes damage to or loss of a prosthetic appliance and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer, incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extra hazardous duties incident to the business. (emphasis added).
The statute still retains this language except that in 1986, when the Wyoming Worker's Compensation Act was recreated after repeal of the existing provisions, the words "any artificial replacement" were substituted for the words "a prosthetic appliance." Wyo.Stat. § 27-14 102(a)(xi) (1977).
If the teaching of In re Jensen is applied, it is clear that the redundant language in the statute is found in the phrases "in the course of employment" and "while at work in or about the premises occupied, used or controlled by the employer, incurred while at work in places where the employer's business requires an employee's presence." In applying what is essentially the current language of the statute this court said in Matter of Willey, 571 P.2d 248, 250 (Wyo.1977):
Although the language contained in § 27-311(n), supra [Wyo.Stat. § 27-311(n) (1957 & Supp.1975) ], is somewhat different from that contained in its predecessor, the meaning has remained the same. The provision acknowledges that injuries may occur on or off the premises of the employer. In either case, the injury is compensable if it arises out of and in the course of employment. This requirement emphasizes the need for a causal connection between the injury and the employment. Such a causal connection is supplied when there is a nexus between the injury and some condition, activity, environment or requirement of the...
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