Seckman v. Wyo-Ben, Inc.

• Decision Date: 27 November 1989
• Docket Number: No. 89-41,WYO-BE,INC,89-41
• Parties: In the Matter of the Workers' Compensation Claim of James Michael SECKMAN, Appellant (Employee-Claimant), v., Appellee (Employer-Respondent), v. STATE of Wyoming, ex rel. WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).
• Court: Wyoming Supreme Court

Page 161

783 P.2d 161

In the Matter of the Workers' Compensation Claim of James Michael SECKMAN, Appellant (Employee-Claimant), v. WYO-BEN, INC., Appellee (Employer-Respondent), v. STATE of Wyoming, ex rel. WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).

No. 89-41.

Supreme Court of Wyoming.

Nov. 27, 1989.

Robert T. Moxley, Whitehead, Gage & Davidson, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., Josephine T. Porter, Sr. Asst. Atty. Gen., Cheyenne, for appellee, State of Wyo., ex rel. Workers' Compensation Div.

Before CARDINE, C.J., THOMAS, MACY and GOLDEN, JJ., and BROWN, J., Retired.

THOMAS, Justice.

The primary issue in this case focuses upon the statutory requirement for filing a claim for worker's compensation benefits within one year of the injury and is concerned with the jurisdictional nature of that statutory requirement. James Michael Seckman (Seckman) questions whether the trial court, on its own motion, could raise that statute as a bar to a claim for benefits for total temporary disability and contends that the requirement was waived by the Wyoming Workers' Compensation Division. Another issue is presented concerning the ruling by the district court that the loss of use of a prosthetic device, necessitated by the amputation of Seckman's left arm just below the elbow, could only lead to an award on the basis of a vocational disability because Seckman failed to establish a disability that could be rated according to statute. Still another issue concerns Seckman's assertion that he is entitled to the replacement of his unusable prosthetic arm by an improved model. We discern no error by the trial court in this case, and its order denying the several claims is affirmed.

In his brief as appellant, Seckman sets forth these issues:

"I. Did the district court commit error of law or abuse of discretion, in ruling that statutory filing time requirements barred a claim for back payment of temporary total disability, when the merits of the claim had been tried to the court by the consent of the parties?

"II. Did the district court apply an improper rule of law in determining that loss of use of the claimant's prosthesis, proximately caused by the injury to the worker, could not lead to an 'impairment' award, but rather could only be the subject of a 'vocational disability' award?

"III. Was it an error of law for the district court to rule the injured employee not to be entitled to a usable, high technology prosthetic device, under circumstances where the injury permanently rendered the injured employee unable to use the mechanical prosthesis he wore prior to the injury?"

The Wyoming Workers' Compensation Division, as the appellee, identifies the issues in this way:

"I. Whether the district court committed error of law or abuse of discretion in ruling that the statutory filing time requirements of § 27-12-503, W.S.1977, barred a claim for back payment of temporary total disability.

"II. Whether the loss of the use of the prosthesis was an 'injury' and a disability as a matter of law."

Seckman's employer, Wyo-Ben, Inc., did not appear or file a brief in this court.

In 1966, Seckman's left arm was surgically amputated just below the elbow because of injuries suffered in an unrelated accident. Since 1967, he used a mechanical prosthesis to substitute for his left hand. Other than obvious problems attendant to the loss of a hand and forearm, Seckman, as he conceded in statements to a rehabilitation counselor, had long since recovered from the effects of that initial injury and the resulting surgery.

Seckman's mechanical prosthesis was one that attached by a leather harness and was operated by a forward pull exerted through the right shoulder. This type of mechanical hand is currently available and still utilized by a large number of people. The primary advantages are that it is reliable and relatively inexpensive. At the time of this accident, Seckman's artificial arm was still functional although it had become quite worn from use over the years. It appears that a repair or replacement was in order even prior to the injury of which he now complains. As of the time of trial, the device was completely unusable because it no longer fit Seckman properly due to his gain in size and weight.

Up until the accident which is the subject matter of this case, Seckman was able to maintain employment in a relatively normal fashion, aided by the use of his prosthesis, although he generally was restricted to work usually described as "light duty." His employment record includes jobs as a machinist, a unit manager, a plant foreman, a construction laborer, a sporting goods store owner and operator, and a traveling salesman for a local laundry. At the time of his injury, he was employed by Wyo-Ben, Inc. where he worked as a mill "clean-up" man. He was working in that capacity when he suffered the accident that led to this claim and the appeal before this court. He left that job in November of 1981 because he was no longer able to endure the pain from his injury as it was aggravated by his duties on the job.

The accident that caused the injuries resulting in this claim occurred about July 10, 1981. Seckman was carrying a large trash can up a ramp that was elevated approximately two feet. While so engaged, he slipped on some grease and fell backwards to the concrete floor, landing hard on his tailbone. In the course of the fall, he struck a pipe with his neck and right shoulder. He was not wearing his prosthesis at the time of the fall.

Soon after he fell, Seckman consulted a general practitioner. It was obvious at the time that he had suffered an injury, but the scope and substance of the injury were not fully apparent. This created some basis for a dispute over his entitlement to worker's compensation benefits. Nevertheless, Seckman was awarded $409.64 in temporary total disability payments covering the two weeks extending from July 12 through July 25, 1981. This was the total amount that he had requested. Because Seckman felt that his condition might be deteriorating, or that it might be more severe than indicated by the original diagnosis, he then consulted specialists who were able to more accurately ascertain the full extent of his injury.

In March of 1983, Seckman filed a claim for major surgery and hospitalization and, on August 5, 1983, he received further worker's compensation benefits. The court deferred action on his request for retroactive benefits for temporary total disability until a later date. His award was conditioned by a requirement that a subsequent hearing be held, following a disability rating being provided by his treating physician, with the purpose of that hearing being to determine Seckman's entitlement to any permanent partial disability. He was ordered to reimburse the Workers' Compensation Division for any monies expended by it in the interim if it were found, at the hearing, that he was not entitled to further benefits. This contemplated hearing never was held. Instead, Seckman continued to receive temporary total disability benefits until he was awarded the amount of $18,091.35 for permanent partial disability. This award was premised upon a stipulation of the parties, dated April 30, 1986, that Seckman was entitled to a forty-five percent (45%) disability rating applicable to his upper extremities.

During the course of the case, a dispute developed as to whether Seckman was entitled to a retroactive award of benefits for a temporary total disability from the period of September, 1981 to August, 1983. Essentially, this dispute centered upon the fact of disability, and the issue was presented for trial on July 14, 1988. Seckman claimed that he could not have returned to work during these months and, for that reason, he was entitled to the award of temporary total disability. The employer's records, however, showed some sporadic work attendance during the same period. Further, there is evidence in the record that Seckman may have received disability payments from November, 1981 to July, 1982 for an unrelated condition involving kidney problems. The issue of entitlement never was resolved, however, because the trial court, sua sponte, pointed out Seckman's failure to comply with § 27-12-503, W.S.1977, and it then denied any award of back payments on that ground alone. With respect to loss of use of the prosthesis, the court acknowledged that a disability award could be sustained relating to the loss of use of the prosthetic device under appropriate circumstances, but it ruled that Seckman had not carried his burden of showing a sufficient vocational disability culminating in a diminution of earning capacity so as to justify such an award in this case.

The court also ruled that even though Seckman's prosthesis had to be repaired or replaced at state expense because its use had been impaired by the injuries to his right arm and shoulder, the proper approach to replacement should be "parsimonious" and that all further claims for benefits, including claims for a specific prosthesis, should be considered as new claims. If contested, they are to be handled by the office of administrative hearings. We note, parenthetically, that, in recent years, numerous innovations have been achieved in the prosthetic appliance field of medical science. Various new devices have been offered. One of these is an electric apparatus known as a "Utah" arm. It is less reliable than a mechanical prosthesis and considerably more expensive, but it does have the advantage of being controlled through nerve impulses instead of through the use of a harness thus avoiding the inherent drawback of chafing and irritating as well as certain limitations in the event the controlling member is somehow limited in either mobility or strength. For potential trial in the future is the question of whether Seckman properly could be fitted with another mechanical harness device that would not irritate his...