Summary 2008 WY 117

Summary of Decision issued October 7, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Bush v. State, ex rel., Wyoming Workers’ Safety & Comp. Div.

Citation: 2008 WY 117

Docket Number: S-07-0226

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge.

Representing Appellant Bush: David M. Gosar of Jackson, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Facts/Discussion: This was an appeal from the district court’s affirmance of an Order of the Office of Administrative Hearings (OAH) denying the appellant’s claim for worker’s compensation benefits.

Timeliness: Wyoming statutes provide that an injured employee must report their injury to the employer within 72 hours after the injury becomes apparent and to the Division within ten days. Failure to comply results in a presumption that the claim shall be denied unless the employee can show clear and convincing evidence that the delay did not prejudice the employer or the Division in their investigation. In its first Order Denying Benefits, the OAH found that the appellant did not timely report. That Order was vacated by the Court’s decision in Bush I. In the second go-round, the hearing examiner entered a more fully detailed Order in which benefits were denied solely based upon the conclusion that the appellant had not met his burden of proving that the injury was work-related. The Division contended that the issue of timeliness had survived but the Court did not agree. Because untimely reporting and filing create only an evidentiary presumption, rather than a lack of subject matter jurisdiction, the Court did not need to raise or consider the issue. The Court determined that if the issue did survive the first go-round, the Division waived it below in the second go-round.
Substantial Evidence: The question was whether the appellant proved that his injury occurred at work. The hearing examiner characterized the conflict in the evidence as a credibility contest. The Court stated that the overwhelming weight of the evidence did not support the appellant’s version of events. The Court found that substantial evidence in the record supported the conclusion that the appellant did not prove that the injury occurred at work on July 3.

Holding: The issues of the timeliness of the appellant’s reporting of his alleged work injury to his employer and the timeliness of his filing of an injury report with the Division played no part in the hearing officer’s decision in the case and were waived below by the Division. The hearing officer’s determination that the appellant did not prove that his injury was work-related was supported by substantial evidence.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/4q664n

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