Stanolind Oil & Gas Co. v. Harvey, 2059
| Citation | 52 Wyo. 349,75 P.2d 1 |
| Decision Date | 18 January 1938 |
| Docket Number | 2059 |
| Parties | STANOLIND OIL & GAS CO. v. HARVEY |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Natrona County; HARRY P. ILSLEY Judge.
Proceeding under the Workmen's Compensation Act by Charles E Harvey, employee, opposed by the Stanolind Oil and Gas Company, employer. To review an award of compensation, the employer brings error.
Order of award affirmed.
For the plaintiff in error, the cause was submitted upon the brief of Hagens & Wehrli of Casper.
Upon the trial, the court seemed to assume that the employee did not have the burden of proof, but that the burden was upon the employer. It was encumbent upon the employee to show (1) His name and the time, nature and cause of the alleged accident and injury; (2) That he was disabled as a result of the accident for at least seven days, and in fact for more than 21 days; (3) Whether the injury was suffered in the course of the employment; (4) The names of the dependent members of his family, including the names and ages of dependent children; (5) The extent of his injury, whether it was total or partial and whether temporary or permanent. The employee showed none of these things and the court requested no evidence on the subject. The burden of proof in a compensation case is upon the proponent. 28 R. C. L. 812; Corrall v. Hamlyn & Son, (R. I.) 94 A. 877; Hills v. Blair, (Mich.) 148 N.W. 243. Sanderson's case, 113 N.E. 355; Gore v. Comm. (Cal.) 226 P. 826; Olson-Hall v. Comm., (Colo.) 205 P. 527; Coal Company v. Hardesty, (Ind.) 133 N.E. 398; Saunders v. Company, (Conn.) 110 A. 538; Zwadick v. Morris & Co., (Kans.) 198 P. 868; Westman's Case, 106 A. 532. At the conclusion of the trial, the court found the evidence insufficient to entitle the employee to an award, and asked for an examination to be made by an independent doctor. The employer thereupon offered to pay the expense of having claimant examined by the Mayo Clinic. There was no evidence warranting compensation for temporary total disability before May 31, 1937. The employee did not call doctors who gave him treatment and the presumption is that their testimony would have been unfavorable to him. 22 C. J. 115; 10 R. C. L. 884. The compensation law (Section 124-123, R. S. 1931) provides that refusal to submit to medical treatment by an injured claimant is a forfeiture of his right to compensation. Strong v Galamba Co., (Kans.) 198 P. 182; Kricinovich v. Foundry Company, (Mich.) 159 N.W. 362; Varonkas v. Industrial Commission, (Utah) 191 P. 1091. The statute also provides that disability benefits shall be discontinued when earning power has been restored. Section 124-133, R. S. 1931. The statute defines permanent and temporary total disability. Section 124-120 (b), (c) R. S. 1931. Every doctor who examined claimant told him that he should do light work. An employee capable of performing work at any gainful occupation is not entitled to recovery under the law. Voight v. Commission, (Ill.) 130 N.E. 470; Aultman v. Lumber Company, (La.) 128 So. 683; Connelly's Case, (Me.) 119 A. 664; Dosen v. Butte, (Mont.) 254 P. 880. An active effort should be made to procure work. Oak Ref. Co. v. Whitehead, (Okla.) 298 P. 611. Words and phrases must be taken in their plain or ordinary and usual sense. Sec. 112-101, R. S. 1931. The word "work" used in the Workmen's Compensation statute is defined by the dictionary as something undertaken for gain and not for pleasure. When disability has terminated, the workman is not entitled to receive an award. II Schneider's Workmen's Compensation 1344; Bianchi v. Commissioners, (La.) 84 So. 657; Miller v. Fair & Sons, (Mich.) 171 N.W. 380; Fullerton v. Industrial Commission, (Ill.) 174 N.E. 900; Price v. Burnyear, 1907, 2 B. W. C. C. (Eng.) 337; Mut. Cas. Co. v. Garrett, (Okla.) 229 P. 282; Accident Company v. McDaniel, 160 S.E. 554.
The cause was submitted for the defendant in error on the brief of Fred W. Layman of Casper.
It is contended that the burden of proof was on the employee to show that he was entitled to compensation. Under certain circumstances that is correct, but in the present case, the employer chose to defend upon the claim that the employee refused to take treatment, which under Section 124-123, R. S. 1931, would forfeit the right of the employee to compensation. The employee contends that Section 124-113, R. S. 1931, should be construed to mean that the issues in the present case are those raised specifically by the employer. The section provides that the hearing shall be conducted from the statement filed by the employer and such claims as may be presented and filed with the clerk of the district court on behalf of the injured workman. The burden of proof was on the employer to establish his defense. The employee made out a prima facie case. Hotelling v. Oil Company, (Wyo.) 238 P. 542. The report of the Mayo Clinic established that gonorrhea was not a contributing cause since it did not exist in the employee. It is argued that the absence of Dr. Lenz as a witness creates a presumption that his testimony would be unfavorable. The record shows that the employee made every possible effort to secure the attendance of Dr. Lenz. The employer contends that the employee should have taken the treatment for gonorrhea, and that his refusal to accept the treatment forfeited his right to compensation. If the testimony of Drs. Riach, Barrett and the Mayo Clinic to the effect that the employee suffered from traumatic neurosis be taken as true, it could not be found that any treatment for gonorrhea would have relieved the employee from suffering from traumatic neurosis. The burden was on the employer to prove that such treatment was reasonably essential to promote the employee's recovery. The employer contends that the employee persisted in following unsanitary and unsuccessful methods of his own. This is not borne out by the record. The employee contends that the evidence does not support the contention that the employee refused to take treatment which was reasonably essential to promote his recovery. The evidence indicates that the employee submitted to such treatment and examinations as the employer's physicians offered. It is finally contended that the employee can do some work and is not entitled to temporary total disability. The employee was injured on July 15, 1936, and discharged September 1, 1936. The employer's statement that the employee worked two and one-half months is incorrect. The argument that the employee was able to do some work, calls attention to the failure of the employer to report the accident causing injury within twenty days of the injury. Section 124-112, R. S. 1931; 1935 Session Laws, p. 145. The report was not filed until November 14, 1936. The statute defined "disability" as a condition incapacitating a workman from performing any work at any gainful occupation. Sakamoto v. Kemmerer Coal Co., (Wyo.) 255 P. 356. The authorities cited by the employer are not applicable to the case at bar and are in accord with the Sakamoto case cited above. It is shown that claimant's temporary total disability continued from the date of his injury up to the date of the hearing. The employee contends that the conclusion of the employer is incorrect, and that the judgment of the trial court should be sustained.
Charles E. Harvey, a workman employed by Stanolind Oil and Gas Company, hereinafter called the "company," was awarded compensation for temporary total disability under the Workmen's Compensation Act, and the company by proceeding in error brings the case here for review.
The workman had been employed by the company as a roustabout since April, 1932. He was injured July 15, 1936, while assisting in laying a six-inch pipe for a water line. The facts in regard to the accident were not in dispute. A rope around a pipe broke while the workman was lifting on one end of a pick which had been thrust through the rope as a means of lifting the pipe. When the rope broke the handle of the pick struck and injured the workman's testicles.
October 27, 1936, the workman filed his report of accident and his claim for compensation for temporary total disability from September 1, 1936, the day he was dropped from the company's pay roll. On November 14, 1936, the company filed its report of accident. These reports and the claim, required by Section 124-112, R. S. 1931, were on forms prepared by the state treasurer under Section 124-111. The statute (Sec. 124-112) requires that reports state "whether the injury has disabled the workman from continuing the performance of his duties," and the form for report of accident has a place for statement of when "disability began" and when "disability ceased." The workman's report stated that "disability began at once," and was "still continuing." In the company's report it was stated that the accident caused "injury to testicles," but the places for statements in regard to the disability were left blank.
The first page of the blank on which the company's report was made contains at the bottom this direction: "If the employer disputes the workman's claim he must set out in detail on the reverse side of this sheet his reasons therefor." The only reason given by the company for disputing the workman's claim was that the workman "has consistently refused to submit to medical treatment, and it is believed that if he had submitted to medical treatment, he would have entirely recovered very shortly after the date of the accident."
Section 124-113 provides that, if there be a dispute as to the right of the injured workman to receive compensation, or as to the amount thereof, there shall be a hearing "conducted on the statement and...
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