Wyoming State Treasurer ex rel. Workmen's Compensation Dept. v. Niezwaag, 3747

• Decision Date: 20 March 1969
• Docket Number: No. 3747,3747
• Citation: 452 P.2d 214
• Parties: WYOMING STATE TREASURER et rel. WORKMEN'S COMPENSATION DEPARTMENT, Appellant, v. Herke D. NIEZWAAG, Appellee (Employee-Claimant below). True Drilling Company, (Employer-Defendant below).
• Court: Wyoming Supreme Court

Page 214

452 P.2d 214

WYOMING STATE TREASURER et rel. WORKMEN'S COMPENSATION DEPARTMENT, Appellant, v.Herke D. NIEZWAAG, Appellee (Employee-Claimant below) True Drilling Company, (Employer-Defendant below).

No. 3747.

Supreme Court of Wyoming.

March 20, 1969.

Joseph E. Darrah, Sp. Asst. Atty. Gen., Cheyenne, for appellant.

Thomas A. Burley, County and Pros.Atty., Douglas, for appellee.

Before GRAY, C. J., and McINTYRE, PARKER and McEWAN, JJ.

Mr. Chief Justice GRAYdelivered the opinion of the court.

The questions presented on this appeal were previously brought to this court for review as the result of an appeal by the State Treasurer from a memorandum opinion handed down by the District Court of Converse County relating to the claim of Herke Niezwaag for certain benefits under the Workmen's Compensation Law of this state, §§ 27-78 to 27-168, W.S.1957, C. 1967.Such appeal was dismissed for want of jurisdiction, Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327.On remand to the district court the jurisdictional defect was cured and the State Treasurer has again appealed.Although a brief re sume of the undisputed facts underlying the controversy is contained in the opinion disposing of the previous appeal, it appears necessary for purposes here more fully to relate the facts pertaining to the questions before us.

Claimant, while employed by True Drilling Company in a covered occupation, received an injury to his left leg in March 1953.Initially the injury appeared to respond to medical treatment, but with the passage of time complications developed and in January 1955 it became necessary to amputate a part of the leg below the knee.During that period benefits, with the consent of the employer, were allowed and paid for medical and hospital expenses and for two short periods of temporary total disability.

On January 31, 1955, the district court entered an order granting a further award of temporary total disability to claimant for a part of the month of January 1955 and further provided that such monthly payments were to continue in the future 'upon certification of the attending physician as to his disability.'After such order was entered and claimant had been fitted with an artificial limb, difficulty was encountered with the stump and it was not until February 28, 1957, that claimant's attending physician advised the court that claimant was able to return to work and claimant, himself, in a claim filed for such disability for the period March 1, 1957 to March 15, 1957, stated under oath that 'I am able to return to work on March 16, 1957.'Thereupon payments for temporary total disability were discontinued.

With respect to benefits for medical and hospital expense, the limited amount chargeable to the employer as provided in § 27-93, W.S.1957, C. 1967, was soon exhausted and the district court as authorized by § 27-94, W.S.1957, C. 1967, upon application by claimant, entered orders from time to time allowing payment of additional hospital and medical expense out of a separate fund.The last such order was entered on November 30, 1956, which by force of its own terms and the statute was limited to the subsequent six months' period.The last claim filed and paid under that order was dated Marcy 1, 1957.

In addition to the foregoing, the district court, with the consent of the employer, entered an order of award on March 21 1955, directing payment in a lump sum of the then scheduled amount allowed for permanent partial disability resulting from claimant's loss of the left leg below the knee.For the statutory provisions then in force seeCh. 143, §§ 35(g) and 36, S.L. of Wyoming, 1951.For current provisions see§§ 27-80(g) and 27-81, W.S.1957, C. 1967.

The record also discloses that each and every order of award made by the district court for any and all benefits theretofore allowed to claimant or to others on his behalf had been satisfied in full by the end of March 1957.Nothing further developed in the proceedings until July 17, 1967, when claimant again filed an application for additional hospitalization and medical expense resulting from a reoccurrence of complications with the stump and on the same date made application to have his case reopened and temporary total disability allowed for the period July 14, 1967 to July 31, 1967.It was not claimed that such disability resulted from a subsequent injury.In the meantime claimant had also changed jobs and was no longer in the employ of True Drilling Company.

Over the objections of the former employer and the State Treasurer, the district court, upon what in essence was a stipulation by the parties of the facts contained in the file, entered an order reopening the proceeding; awarded temporary total disability benefits for the period claimed; and awarded additional hospital and medical expenses in accordance with the statutes.From that order the State Treasurer has appealed.

In effect the district court held that it had a continuing jurisdiction over the subject matter in question during the lifetime of the claimant with power to impose the burden of the disability benefits upon the original employer so long as such disability and his medical needs resulted from a reoccurrence of the difficulty in the healing process originally encountered in restoring the claimant to such physical condition as the extent of his known compensable injury would permit.

In resisting the concept, the State Treasurer concedes that claimant was entitled to temporary total disability benefits 'in the first instance, until such time as the work-related injury stabilizes itself justifying a permanent disability award.'Based upon the record, it appears that this concession should be taken to mean that temporary total disability was payable for the period from the date of injury until the stump had healed, an artificial limb fitted, and the claimant was able to return to work.That concession is in accordance with what was held by this court in In re McConnell, 45 Wyo. 289, 18 P.2d 629, 632, 88 A.L.R. 376, to be the policy of the law.No point was made of the fact that the scheduled award for loss of the limb was entered during the time temporary disability was being paid and that payments continued for some time thereafter.The State Treasurer contends, however, that when payments for total temporary disability ceased, in keeping with the terms of the award, the scheduled award for permanent partial disability was the exclusive remedy and claimant was no longer entitled to further temporary total disability benefits resulting from the known original injury.It is further contended that the district court was without jurisdiction in any event to reopen the proceeding for any purpose for the reason that the claimant's pending applications were not timely filed.

Turning first to the contentions concerning temporary total disability, it would appear as an abstract proposition that the contention with respect to the exclusiveness of the remedy for permanent partial disability when that point in time is reached is in keeping with the policy of the statute heretofore mentioned.Whether the contention should be adopted, however, as a general principle of law applicable in all cases is not entirely free from doubt.The only authority cited in support of the contention is Keehn v. Alaska Industrial Board, 9 Cir., 230 F.2d 712, 16 Alaska 101.Authorities reaching a contrary result are Alaska Industrial Board v. Chugach Electric Association, 356 U.S. 320, 78 S.Ct. 7352 L.Ed.2d 795, andNuway Laundry Company v. Hacker, Okl., 396 P.2d 659.Further compounding the difficulty is the contention of the State Treasurer that the provisions of § 27-117, W.S.1957, C. 1967, hereinafter set forth in full, embrace any award of compensation.If there is merit in that contention one result might well be that additional benefits for temporary total disability could under appropriate circumstances be allowed.For purposes here, however, we need not decide the point.

We will assume, as claimant argues and the district court apparently concluded, that the provisions of § 27-117 are not applicable.When such assumption is...