Wyoming State Treasurer, Worker's Compensation Division v. Svoboda, s. 4844 and 4845

• Decision Date: 06 January 1978
• Docket Number: Nos. 4844 and 4845,s. 4844 and 4845
• Citation: 573 P.2d 417
• Parties: WYOMING STATE TREASURER ex rel. WORKER'S COMPENSATION DIVISION, Appellant (Objector-Defendant below), v. Richard SVOBODA, Jr., Appellee (Claimant below). WYOMING STATE TREASURER ex rel. WORKER'S COMPENSATION DIVISION, Appellant(Objector-Defendant below), v. Susan SVOBODA, Appellee (Claimant below).
• Court: Wyoming Supreme Court

Page 417

573 P.2d 417

WYOMING STATE TREASURER ex rel. WORKER'S COMPENSATION DIVISION, Appellant (Objector-Defendant below), v.Richard SVOBODA, Jr., Appellee (Claimant below).

WYOMING STATE TREASURER ex rel. WORKER'S COMPENSATION DIVISION, Appellant(Objector-Defendant below), v.Susan SVOBODA, Appellee (Claimant below).

Nos. 4844 and 4845.

Supreme Court of Wyoming.

Jan. 6, 1978.

V. Frank Mendicino, Atty. Gen., and Lawrence A. Bobbitt, III, Asst. Atty. Gen., Cheyenne, for appellant.

Harry E. Leimback, Casper, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

The claimants, in these consolidated worker's compensation cases, were awarded temporary total disability compensation for injuries sustained in an automobile accident.The original order of award, dated April 27, 1976, was entered after an informal hearing there being no objection to the claims by the employer wherein it was found that said injuries were sustained while the claimants were working in a covered occupation.Payment of compensation was to continue, on a monthly basis, upon certification of the attending physician.Follow-up claims for compensation were filed and certified without employer objection by the clerk of the district court in the months of May through September, 1976.In addition, various orders of award for medical and hospital services were certified, without objection, by the clerk.On November 15, 1976, the clerk certified and filed a follow-up claim for compensation covering the month of October and forwarded a copy to the worker's compensation division.On November 19, 1976, the division filed a petition to reopen, pursuant to § 27-372, W.S.1957, 1975 Cum.Supp., ¹ alleging as follows:

"1.Evidence now available to the Objector-Defendant and not available at the time of the accident tends to indicate probable cause that the original claim is not compensable.

"(a) A police report of accident for the time of the injury indicates that Claimants may have been intoxicated.Open cans of beer or alcoholic beverage were found in the vehicle and so indicated on the officer's report.

"(b) Two witnesses have come forward and indicated that Claimants told them that they were not in the scope of their employment at the time of the accident but were driving from a party to collect more alcoholic beverages for the party.

"2.Such evidence, if true, would constitute probable cause to reopen this case indicating Claimants were outside of the scope of their employment at the time of the accident."

On the same day, as a result of the allegations contained solely in the petition, an ex parte order was entered, suspending payments to the claimants and reopening the case pending further investigation and a new hearing.On December 7, 1976, claimants filed an answer asserting, inter alia, that the petition was untimely and did not set forth probable cause to reopen.The answer was later amended to add the defense of res judicata.Subsequent to a pretrial conference, the court entered: a pretrial order, indicating that the trial date would be used for a further probable-cause hearing; and an order, reinstating the payments to claimants and, upon finding that probable cause to reopen had not yet been shown, rescinding the prior ex parte order.²

On appeal, the parties raise the following issues:

1.Was the petition to reopen timely?

2.Was the reinstatement-of-payments order appealable as a final order?

3.Was there a sufficient showing of probable cause for the original ex parte order?

While the division initiated this appeal on the basis of the third issue, the claimants-appellees raised other issues which must be considered at the outset.Claimants assert that since the division failed to file its petition to reopen within thirty days of the original (April 27) temporary-total-disability order, the district court was without jurisdiction to reopen the case under § 27-372, supra.A reading of § 27-372, supra, discloses that the phrase "within thirty (30) days after the date on which he received the order of award "(emphasis added) does not clearly indicate which "order of award" is contemplated.Other provisions of the Wyoming Worker's Compensation Act contemplate awards for: medical and hospital expenses; temporary total disability (on a monthly basis); permanent partial disability (on a monthly or lump-sum basis); permanent total disability (on a monthly or lump-sum basis); artificial replacements; and benefits for surviving spouses, parents, and children (on a monthly or lump-sum basis).Sections 27-335 to 27-344, W.S.1957, 1975 Cum.Supp.Each of these awards is subject to the giving of notice and an opportunity for hearing to the employer.In the event of a dispute, procedures are set out for the speedy settlement of differences.Sections 27-360 and 27-362, W.S.1957, 1975 Cum.Supp. Section 27-366, W.S.1957, 1975 Cum.Supp., provides:

"The director or his designee may for any reason appear in the district court and defend against any claim and shall in all respects have the same rights of defense as the employer.Failure to contest a claim does not constitute waiver by the director of his right to reopen an award where he does not appear and defend at the original trial."(Emphasis added)

Section 27-365, W.S.1957, 1975 Cum.Supp., provides:

"Every award within the meaning of this act(§§ 27-310 to 27-388) is a judicial determination of the rights of the employer, the employee and the disposition of money within the various accounts provided under this act as to all matters involved.Except as otherwise provided, the Wyoming rules of civil procedure shall govern in matters before the courts of this state in reference to this act.No award of compensation or allowance of any expense claim chargeable against the account of any employer contributing under this act shall be made without notice to the employer and opportunity for hearing, unless the employer files written consent to the claim in (the court having jurisdiction.If no written objection to the payment of the claim is filed within ten (10) days from the date of verified receipt of the notice to the employer or his qualified agent, it is conclusively presumed that the employer consents to the claim and the claim shall be submitted to the clerk of district court for approval.If after a diligent effort has been made the notice cannot be served upon an employer, the clerk of district court may allow or disallow the claim.)"(Emphasis added)(Last bracketed material, quoted from Ch. 149, § 1, S.L. of Wyoming 1975, was printed in improper sequence in the 1975 Cum.Supp.)

Whether a claim is adjudicated under the formal-dispute procedures, or informally by the clerk of the district court where there is no employer objection the character of the award as a judicial determination is not changed.See, Midwest Refining Co. v. George, 41 Wyo. 55, 281 P. 1005, 1007;andWyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 452 P.2d 214, 217.

Chief Justice Blume commented on the purpose and contemplated intent of the predecessor to § 27-372, in Marsh v. Aljoe, 41 Wyo. 220, 227, 284 P. 260, 262-263, when he said:

". . . This statute the like of which we have not found to exist in any other commonwealth must be construed in the light of the situation which was sought to be remedied thereby.The state, as such, takes care of the fund from which workmen's compensation is paid, has contributed to it, and has from time to time taken pains to see that it has been maintained.While interested in having the general policy of the Workmen's Compensation Law carried into effect and its beneficial purposes applied, the duty or burden has also devolved upon it to see that there is money on hand with which to pay those actually entitled to the benefits under the act, and that the fund is not exhausted as against such persons by others not properly within the intent and purpose thereof.But prior to 1927the Legislature had provided no direct remedy by which the officers of the state might lend their protective hand for such purpose or by which the amount contributed by the state to such fund might be safeguarded by them.Hence, it gave the state treasurer, through the Attorney General, the 'right,' upon showing probable cause, to have any case reopened for the purpose of retrial.

We think that the Legislature contemplated that he should be given the advantage of a regular trial, the same as is given other parties in the case, and meant to make his right thereto, within the limits mentioned in the law, as broad as the right of the employer and employee, so as to give the state full measure of protection."

Viewing § 27-372, supra, in light of the purposes to be accomplished, Seyfang v. Board of Trustees of Washakie County School District No. 1, Wyo., 563 P.2d 1376, we hold that the division may file a petition to reopen the case within thirty days of receipt of any award granted by authority of the district court.The division, by statute, is granted rights equivalent to those of an employer, which include the rights to challenge any claim or move to reopen any award.Additionally, if we were not to reach this conclusion, the division would be placed in the incongruous position of being able to directly appeal any order in the district court under § 27-376, W.S. 1957, 1975 Cum.Supp. but being unable to seek a rehearing of the case b...