Wesaw v. Quality Maintenance

• Decision Date: 20 February 2001
• Citation: 19 P.3d 500,2001 WY 17
• Parties: In the Matter of the Worker's Compensation Claim of Markus WESAW, Appellant (Employee/Claimant), v. QUALITY MAINTENANCE, Appellee (Employer/Respondent), and State of Wyoming ex rel. Division of Workers' Safety and Compensation, Appellee (Respondent).
• Court: Wyoming Supreme Court

19 P.3d 500

2001 WY 17

In the Matter of the Worker's Compensation Claim of Markus WESAW, Appellant (Employee/Claimant), v. QUALITY MAINTENANCE, Appellee (Employer/Respondent), and State of Wyoming ex rel. Division of Workers' Safety and Compensation, Appellee (Respondent).

No. 00-7.

Supreme Court of Wyoming.

February 20, 2001.

Representing Appellant: Steven R. Helling, Casper, WY Representing Appellee Quality Maintenance: Keith M. Gingery of Western Law Associates, Lander, WY.

Representing Appellee State of Wyoming ex rel. Division of Workers' Safety and Compensation: Gay Woodhouse, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; Bernard P. Haggerty, Senior Assistant Attorney General.

Before LEHMAN, C.J., and THOMAS,¹ GOLDEN, HILL, and KITE, JJ.

GOLDEN, Justice.

[¶ 1] Appellant Markus Wesaw was denied worker compensation benefits after the hearing examiner found that he had filed an untimely written report of injury. The district court certified his petition for review to this Court pursuant to W.R.A.P. 12.09. We hold that the hearing examiner did not properly apply applicable law to determine the date of compensable injury and remand for hearing.

ISSUES

[¶ 2] Wesaw presents these issues for our review:

Was it reversible error for the hearing examiner to dismiss Appellant's claims for worker's compensation benefits?

Under the facts of this case, this issue includes the following sub-issues:

Was Appellees' contention that Appellant failed to file a timely injury report properly raised? Should this even have been an issue in the case?

If the issue of late filing of the injury report was properly raised by Appellees (which is denied by Appellant), was there a late filing of Appellant's injury report?

If the issue of late filing of the injury report was properly raised by Appellees and if there was a late filing (both of which are denied by Appellant), was it excused?

If the issue of late filing of the injury report was properly raised by Appellees, if there was a late filing of the injury report and if such late filing was not excused (all of which are denied by Appellant), was the presumption of denial, created by the late filing, overcome by clear and convincing evidence of a lack of prejudice to Appellees in investigating the injury and in monitoring medical treatment?

Appellee Division rephrases the issues as:

I. Was the order granting judgment as a matter of law supported by substantial evidence, within the Hearing Examiner's discretion, and in accordance with law?

A. Did the Employee receive adequate notice of the issues addressed at the hearing?

B. Was the Employee's injury report untimely?

C. Did the Employee fail to rebut the presumption of denial?

D. Was the decision not to apply equitable estoppel proper?

II. If the Court reverses, should it remand for an automatic award of benefits?

Appellee Quality Maintenance presents these issues:

Whether the Hearing Examiner's Denial of Benefits, based upon the Employee/Claimant failure to timely file his injury report within the ten day statutory period as prescribed by W.S. § 27-14-502(c), was supported by substantial evidence and in accordance with the law?

A. Was the Employee/Claimant afforded due process of the law and was he on notice that the issue of late filing was an issue?

B. Did the Employee/Claimant fail to timely file his injury report within the 10 day period prescribed by W.S. § 27-14-502(c)?

C. Did the Employee/ Claimant fail to rebut the presumption of prejudice to the employer or division by clear and convincing evidence?

D. Did the Employee/Claimant fail to show substantial evidence supporting equitable estoppel?

E. If the Court should reverse, should the Court remand to allow a hearing in order for the Employer and Division to present their evidence, rather than remand for an automatic award of benefits?

FACTS

[¶ 3] Wesaw was exposed to sulfuric acid on October 15, 1998. His supervisor, Nels Carlson, entered the room soon after and was told of the incident. Carlson told Wesaw that he would report the incident to workers' compensation but reassured him that no permanent injury was likely because "you can take a bath in it." Wesaw's throat felt sore later that night, but he went to work the next day. At that time, his supervisors announced to employees that a large sulfuric acid leak had occurred the previous day, necessitating repairs that would not allow work. Wesaw was sent home, and he rested that day and over the weekend. Wesaw's wife was concerned about his illness, but Wesaw repeated his supervisor's statement that you could bathe in the substances and not be hurt. Both Wesaw and his wife testified that Wesaw was convinced that his illness was due to his asthma condition, and he took those medications that weekend. Although he felt ill, he returned to work on Monday and Tuesday. He became too ill to work on Tuesday, was driven home by his employer, and sought medical treatment. The next day, October 22, 1998, he was diagnosed with "dysphagia, which is pain with swallowing, and inhalation injury."

[¶ 4] He filed an injury report on November 3, 1998, by telephone. On November 5, 1998, the Division issued an "Initial Review: Notice of Lack of Information" letter requesting an explanation by December 3, 1998, why his injury report had not been submitted within the ten-day limit required by Wyo.Stat.Ann. § 27-14-502(a). Wesaw wrote back on November 20, 1998, that he reported the accident as soon as he knew that he would have to be treated and could no longer work. The Division apparently accepted this explanation because it was not the basis for denial when it issued a "Final Determination" letter dated December 8, 1998, denying benefits stating that the "incident" did not meet the definition of an injury under Wyo.Stat.Ann. § 27-14-102(a)(xi); his condition was preexisting; and the evidence did not show that he had suffered a work injury.

[¶ 5] Wesaw objected to the denial, and the matter was eventually set for hearing on August 5, 1999. The employer's disclosure statement, filed after the deadline set forth in the prehearing order, identified a timeliness issue for failure to file an injury report within ten days as required by Wyo.Stat.Ann. § 27-14-502(a). At the hearing, Wesaw objected to consideration of the issue, contending that he had not received proper notice. The record indicates that Wesaw believed the timely notice issue was limited to the time difference between October 22 and November 3, and he argued that W.R.C.P. 6 counted only work days. The opposing attorneys never stated that they were also contending that the date of injury was October 15, 1998. The Division's attorney asked the hearing examiner for a clarification whether late filing was an issue, and at that point, the hearing examiner allowed evidence on the issue but reserved ruling on whether notice had been proper. Wesaw proceeded to present evidence limited to establishing that he had suffered a compensable, work-related injury following a chemical exposure incident. He testified that he immediately notified his employer of the incident, but kept working and was diagnosed with an inhalation injury on October 22, 1998. He then rested his case.

[¶ 6] At the close of Wesaw's case, the opposing attorneys both moved for judgment at that time, claiming that Wesaw's testimony indicated that he was aware he had been injured on October 15, 1998, and therefore, had not timely filed nor had he presented any evidence rebutting the statutory presumption of prejudice. Wesaw's attorney argued that due process and Wyo.Stat.Ann. § 16-3-107 required specific notice that both of these issues would be raised at the hearing, and these requirements had not been complied with before the hearing.

[¶ 7] The hearing examiner determined that Wesaw was aware that he had been injured on October 15, 1998, and was statutorily required to file an injury report within ten days of that date. The order found that his failure to timely file the report raised a rebuttable presumption that his claim should be denied, and he did not meet his burden of rebutting the presumption by clear and convincing evidence that no prejudice resulted when the accident could not be investigated and medical treatment monitored. Benefits were denied, and this appeal followed.

DISCUSSION

Standard of Review

[¶ 8] When the district court certifies directly to this Court an administrative agency's decision, we review that agency decision "under the same appellate standards applicable to the reviewing court of the first instance." In re Bessemer Mt., 856 P.2d 450, 453 (Wyo.1993). Our judicial review is limited to those considerations specified in Wyo. Stat.Ann. § 16-3-114 which provides:

To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

* * *

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

* * *

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo.Stat.Ann. § 16-3-114 (LEXIS 1999).

The interpretation and correct application of the provisions of the Wyoming Workers' Compensation Act is a question of law over which our review authority is plenary. Tenorio v. State ex rel. Wyoming Workers' Compensation Div., 931 P.2d 234, 237 (Wyo.1997); Claim of Nielsen, 806 P.2d 297, 299 (Wyo.1991). Conclusions of law made by an administrative

...