Warehime, Matter of

• Decision Date: 22 February 1991
• Docket Number: No. 90-214,90-214
• Citation: 806 P.2d 292
• Parties: In the Matter of the Workers' Compensation Claim of Clinton L. WAREHIME, an Employee of Douglas Roofing. Clinton L. WAREHIME, Appellant (Employee-Petitioner), v. STATE of Wyoming ex rel. WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Respondent).
• Court: Wyoming Supreme Court

Page 292

806 P.2d 292

In the Matter of the Workers' Compensation Claim of Clinton L. WAREHIME, an Employee of Douglas Roofing Clinton L. WAREHIME, Appellant (Employee-Petitioner), v. STATE of Wyoming ex rel. WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Respondent).

No. 90-214.

Supreme Court of Wyoming.

Feb. 22, 1991.

George Santini of Graves, Santini & Villemez, P.C., Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., Josephine T. Porter, Sr. Asst. Atty. Gen., Ron Arnold, and J.C. DeMers, Sr. Asst. Attys. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

MACY, Justice.

Appellant Clinton L. Warehime appeals from an order of the district court affirming the hearing officer's order, which determined that his petition to reopen his claim for the purpose of obtaining permanent total disability benefits was res judicata and that he had failed to demonstrate a "mistake" as contemplated by Wyo.Stat. § 27-14-605 (1977).

We reverse and remand.

Warehime raises these issues:

1. Did the hearing officer err as a matter of law in holding that Appellant failed to meet his burden of proof to show an increase of incapacity or mistake to justify a reopening of his workers' compensation case and an award of permanent total disability?

2. Did the hearing officer err in refusing to modify Claimant's award of permanent partial disability where the parties by stipulation have agreed Appellant would not be precluded from seeking modification of the award on the grounds of an increase of incapacity due solely to the injury, mistake or fraud?

3. Does a mutual mistake of fact regarding an injured worker's potential for retraining and competitive employment justify reopening a disability award granted on the basis of a stipulation of the parties?

In response, Appellee State of Wyoming ex rel. Wyoming Workers' Compensation Division contends:

I. Whether the order of the district court on August 4, 1987 is entitled to finality and res judicata as between the parties.

II(a). Whether there was sufficient evidence to support the administrative hearing examiner's conclusions that the Appellant failed to meet his burden of proof pursuant to section 27-12-606, W.S.1977, and section 27-14-605, W.S.1986, in that Appellant had demonstrated no mistake of material fact by the fact finder.

II(b). Whether there is substantial evidence to support the administrative hearing examiner's conclusion that the Appellant had failed to meet his burden of proof to demonstrate and show an increase in incapacity to justify setting aside the order signed by the district court on August 4, 1987.

On February 2, 1984, Warehime suffered various broken bones and eye injuries as well as back and shoulder injuries when he fell from a ladder while he was performing work for his employer, Douglass Roofing Company. After receiving a variety of worker's compensation benefits over a period of three years, Warehime filed a petition in the district court on February 17, 1987, seeking permanent total disability benefits. Pursuant to a stipulation between Warehime and the Workers' Compensation Division, the district court entered an order on August 4, 1987, awarding an additional fifty percent permanent partial disability. The provision of the stipulation upon which the parties are focusing is:

14. That Employee-Claimant is not precluded from modifying this award pursuant to Section 27-12-606, W.S.1977, or Section 27-14-605, W.S.1986, if he later experiences an increase in incapacity due solely to the injury or upon the grounds of mistake or fraud[.]

The quoted provision merely states that the workman has a right to reopen his case. The significance of that provision must be discerned from the totality of the circumstances surrounding the entry of the August 4, 1987, order. The stipulation stated that Warehime had worked as a roofer for ten years and that before then he had performed other manual labor. Further, it referred to a vocational evaluation which indicated that Warehime had very little education, read at a first grade level, and had arithmetic skills at a fourth grade level. The evaluation stated, without any disagreement from the Workers' Compensation Division, that Warehime could not perform his previous occupations and that his future employment would be limited to selective placement or on-the-job-training at a sedentary job. The stipulation provided that Warehime would participate in a reading program and a vocational rehabilitation program for the purpose of improving his opportunities for employment. The stipulation and its attendant order were premised upon reports from International Rehabilitation Associates, Inc., which were completed in June and July of 1987. One of these reports disclosed that Warehime might be able to do ten percent of the jobs listed in the Dictionary of Occupational Titles (before the injury, he might have been able to do twenty-five percent of the jobs listed). The report reflected the opinion that Warehime was employable within the restrictions detailed in the report.

In a letter dated June 20, 1988, the Colorado Department of Social Services Bureau of Rehabilitation and Work Programs ¹ informed Warehime that he was ineligible for further participation in the vocational rehabilitation program because the medical information, along with the results of the vocational and physical capacities programs, caused the Department of Social Services to conclude that Warehime's capacity to benefit from competitive employment was nonexistent. It is noteworthy that a vocational evaluator at the University of Northern Colorado Rehabilitative Services Clinic included the following in her report:

Positive work-related behaviors noted by the evaluator for Mr. Warehime included:

1. Highly motivated

2. Strong desire to work

3. Persistent on all assigned tasks

4. Friendly personality

Unfortunately, that evaluator concluded that Warehime would not benefit from competitive employment.

With that information available to him, Warehime filed a claim with the Workers' Compensation Division on July 22, 1988, seeking permanent total disability benefits. The Workers' Compensation Division denied the claim, and Warehime objected to that denial. A hearing officer also denied the claim, and Warehime filed a petition for review with the district court. The district court remanded the case back to the hearing officer for additional findings. The hearing officer made the following pertinent findings: ² (1) The testimony and exhibits produced at the hearing reaffirmed the previous finding that Warehime suffered from a severe vocational handicap as the result of his work related injury; (2) Warehime failed to prove that he suffered from an increase in incapacity which would justify setting aside the August 4, 1987, order; (3) Warehime failed to demonstrate that the fact finder made a mistake regarding a material fact; and (4) the award made by the district court on August 4, 1987, must be treated as being final. The hearing officer concluded that Warehime had failed to prove grounds for an increase in benefits and denied his claim.

Those findings were reviewed by the district court. In its opinion letter, the district court concluded that the findings were supported by substantial evidence and that the hearing officer's conclusions of law were in accordance with the law. The court affirmed the denial, and Warehime filed this appeal.

First, we will address the Workers' Compensation Division's assertion that Warehime's claim is res judicata, precluding the hearing officer from considering the petition. In Midwest Refining Co. v. George, 41 Wyo. 55, 281 P. 1005 (1929), we were confronted with similar facts. In that case, we stated, concerning the stipulation between the parties, that we may

for the purposes of this case, but no further, concede that counsel for the employer gave his consent, applicable throughout the case, to have the cause reopened for the purpose of trying out the question as to whether or not the employee had grown worse within the meaning of the stipulation between the parties, and that the court by that consent acquired jurisdiction for that purpose.

Midwest Refining Co., 41 Wyo. at 70, 281 P. 1005. We follow that...