Big Horn Coal Company v. Wartensleben, 502 P.2d 187

Big Horn Coal Company v. Wartensleben

502 P.2d 187

Wyo.

1972

Check Treatment

McINTYRE, Chief Justice.

Big Horn Coal Company, as employer, has appealed from an order of the district court of Sheridan County. The order made a workmen’s compensation award for injuries to Edwin O. Wartensleben, employee. Appellant says the issue presented on appeal is whether an employee who is injured in the сourse of his employment can receive an award if he did not report the injury to his employer within twenty-four hours of the occurrence of the accident.

We are sure^the question presented turns on findings of fact from the evidence. In keeping with the applicable appellate rule in that regard, we must оf course accept as true the evidence favorable to the successful party in the district court. Actually, the employer did not try to refute the employee’s testimony. Instead, it claims the employеe has not shown sufficient excuse for his failure to report his accident within twenty-four hours.

The statute relied on by the employer is § 27-104, W.S.1957, c. 1967. It provides, whenever an accident ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍occurs causing injury to any workman engagеd in extra-hazardous employment, it shall be the duty of *188 the injured employee to make or cause to bе made a report of the occurrence to the employer within twenty-four hours thereafter.

Counsеl for appellant has pointed out very well the purpose for requiring this twenty-four-hour report and the benefit it affords to an employer who would ordinarily want to make an early investigation. However, the evidence favorable to claimant in this particular case tends to show Wartensleben was driving a scraper which was a rough-riding piece of equipment; that he had never previously suffered any back pain or back injury; and that while the employee was working his shift on July 20, 1971 he began to suffer what he described as muscle spаsms in his back.

Without realizing at the time what had caused his back trouble and without relating the trouble to his job, Wartenslеben went to a doctor to get a prescription for a muscle relaxant. He was told by the doctor that probably the only thing wrong was nerves. He continued to work without loss of time until laid off in September, 1971. The employee was not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍aware that he had suffered any kind of injury until he was placed in a hospital at Sheridan sоme time later. There x-rays were taken of his back and a myelogram was performed. Wartens-leben was then notified he had suffered some type of injury to his back. According to his testimony, that was when he first knew he had suffеred a compensable injury.

The record indicates Wartensleben immediately filed a report and сlaimed compensation when he learned, as a result of the x-rays and myelogram, that he had had a bаck injury. This report was filed December 1, 1971. The employee also testified he had never fallen or suffered any other injury to his back prior to July 20, 1971; and that he thereafter had nothing to cause the trouble except his work duties for appellant.

The employee was taken to Cheyenne and his back was operаted upon by Dr. Schreiner. There was evidence in the case to the effect that in Dr. Schreiner’s opiniоn the injury to Wartensleben occurred July 20, 1971, “as a result of carrying out duties which placed rather unusual stress to the lower back area.”

As we have already indicated, the employer did not attempt to contrаdict the employee’s testimony or his theory of what happened. Thus, the trial judge had reason to beliеve Wartensleben did not know ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he had had a compensable injury until the x-rays were taken and the myelogram was performed at the Sheridan hospital; and that such injury was then immediately reported, with a claim for compensation.

Baldwin v. Scullion, 50 Wyo. 508, 62 P.2d 531, 535, 538-539, 108 A.L.R. 304, established it as law in Wyoming that an employee’s report must be made as soon as the employee becomes aware that an accident has caused an injury; and that the term “injury” as used in thе compensation statutes means compensable injury. We made it clear in Bemis v. Texaco, Inc., Wyо., 400 P.2d 529, reh. den. 401 P.2d 708, 708-709, that we continue to recognize the principles announced in Baldwin-, and we see no reason to dеpart from ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍such principles in the instant case.

A case in point from another jurisdiction is Potter v. Midland Cooperatives, Inc., (1956) 248 Minn. 380, 80 N.W.2d 59, 61. In that case the Minnesota Supreme Court stated, where an employee in the сourse of his employment sustains an apparent trivial injury which does not result in present disability and which would not reаsonably be expected to cause future disability, but which injury in fact after a period of latency does cause future disability, the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍time for giving notice of the occurrence of the injury to the employer runs from thе time when it becomes apparent that such injury has resulted in, or is likely to cause, com-pensable disability. 1

*189 The question of the time when the employee first knows that he has suffered an injury which results in, or is likely to cause, compensable disability is of course one for the trial judge. The evidence in Wartensleben’s case is such that we cannot and will not disturb the findings of the trial court in that regard.

Affirmed.

Notes

. In Stancil v. Massey, 141 U.S.App.D.C. 120, 436 F.2d 274, 277 (1970), it is stated, where the injury suffered is undisclosed to or unknоwn by the victim, the *189 point of beginning may be postponed until the victim is or should be aware of the injury. Also, as stated in Beson v. Carleton College, 271 Minn. 268, 136 N.W.2d 82, 87 (1965), it has been consistently held that an injury has not occurred until compensable disability appears or becomes manifest.