McCarty v. Bear Creek Uranium Co.
694 P.2d 93
Wyo.
1985
Check Treatment

*1 I would benefits. the order of the district have reversed

court. McCARTY, Appellant

Albert A.

(Employee-Claimant), COMPANY,

BEAR CREEK URANIUM

Appellee (Employer-Defendant), Wyoming,

State Division,

Appellee (Objector-Defendant).

No. 84-65.

Supreme Wyoming. Court of

Jan.

94 impairment

manent body as a whole. The appellant’s district court denied claim permanent partial disability. Appellant following raises the issues: Employee-Claimant “1. Whether is enti- (75%) seventy-five percent perma- tled to partial disability part nent or some there- of as a result of a loss of income attribut- § solely injury able to his under 27-12- 403(h), W.S.1977. Employee-Claimant “2. Whether is enti- percent (10%) ten permanent par- tled to disability upon tial based impairment personnel to which all medical have testi- § pursuant 27-12-403(a), fied to W.S. 1977.” 27-12-403, W.S.1977, Section states Painter, Casper, appellant. L. pertinent Donald par-t: “(a) partial disability Permanent means Kidd, Casper, appellee- D. Thomas permanent the loss or impairment of a McClintock, employer, Gen., Atty. and A.G. sense, limb or or other injury known Stack, Gen., Deputy Atty. Gerald A. Terry surgery or per- medicine to constitute Harris, Gen., Atty. J. Asst. and Michael A. impairment manent bodily of a function. Gen., Blonigen, Atty. appellee-ob- Asst. ¡ n n n * * * by jector; argument Blonigen. oral Kidd & “(h) injury For other known to sur- THOMAS,* C.J., ROSE, Before and gery or medicine permanent to constitute ROONEY,** CARDINE, BROWN and JJ. partial disability, shall re- ceive propor- the amount CARDINE, Justice. tional to permanent partial the extent of appeal This per- is from the denial of a disability based as near may upon as be partial disability manent award under the foregoing (1) schedule. One factor to Wyoming Worker’s Act. ability is the of the employ- We reverse and remand. ee perform to continue to work for which he reasonably was suited experience Appellant compensable suffered a training prior injury.” injury working while for Bear Creek Ura Company nium tempo was awarded In compensation law, disability rary disability. total Subsequently appel impairment means an earning capacity. applied seventy-five percent lant for a per Carriers, Northwest Inc. v. Industrial partial disability manent based on loss Fund, of Comm’n Utah Injury Second earnings Utah, as evidenced income tax (1981). re previ We have turns filed both before and after injury. ously held that some medical statement of depositions The of two doctors were disability intro total or a partial by stipulation parties. duced Dr. disability necessary. is Conn v. Ed Weder Beehler, neurosurgeon, by depo Co., testified (1983); ski Const. sition to a percent five to ten Morrison-Knudsen, Cardin v. Wyo., 603 subjective symptoms. based on Ropp, (1979). However, Dr. P.2d 862 the court is not orthopedic surgeon, by deposi an testified bound testimony; medical non-medical appellant percent tion that per- had a ten witnesses and competent evidence are * ** January Became Chief Justice argument. Chief Justice at time of oral State, which the disability. workman’s prove earning capacity is Colvin, Wyo., 681 Comp. injury Div. v. affected complained of is testimony alone Medical necessarily P.2d 269 not measured the differ- necessarily type does not determine ence earnings between his before and given. Employers should award which be after the injury, since the amount of his *3 Eidson, Colo.App., Mutual Wausau earnings may actual be affected vari- of (1982). 646 P.2d 959 ous Ordinarily, extraneous matters. any concept disability compensation earnings of loss of which is “The not attributable as, primary premise injury, example, rests on the that the to the loss due to impairment medical subsequent consideration is not the workman’s fault to the such, capac- accident, earning as but rather loss of or to his illness not connected ity impairment. accident, related' to that An general with the or to a busi- compensation sup- award for must be depression, ness is not to be considered ported by finding a that the claimant determining in compensa- the amount of or, compensable disability suffered a earnings tion. Loss of inability due to in precisely, earning a decrease ca- more obtain work is to in deter- ill- pacity injury to a work-connected or mining the amount of inso- ness. Factors to be considered mak- far, insofar, only but as inability such is finding only ing this include not the ex- (Footnotes injury.” attributable to the injury, age, the tent of but also educa- omitted.) 82 Am.Jur.2d Workmen’s tion, employment § available in the área 347, Compensation p. 145. persons capabilities ques- with the jobs If are unavailable because of economic

tion, employment and intentions as to in conditions and the worker would not be (Footnote omitted.) the future.” Vetter regardless physical condition, hired of his Compensation v. Alaska Workmen’s then he suffered has no economic loss be- Board, Alaska, 264, (1974). 524 P.2d 266 cause of his industrial injury. Wiedmaier Generally earning the loss of Comm’n, 127, 121 Ariz. Industrial 589 power of the worker is the theoretical (1978). basis 1 P.2d compensation. for allowance of Daugher The claimant in the worker’s com Co., 197, ty Gypsum v. National 182 Kan. pensation case has the of burden establish (1957). 318 P.2d 1012 The evidence of ing every essential element of his claim wages earned the is material preponderance of the evidence. Alco of question employee’s earning Baker, Wyoming v. capacity weight and entitled to whatever (1982). The claimant must show the extent Peloso, gives the fact finder to it. Inc. v. injury, of his disability, or loss of earn Peloso, 294, (1968). 103 R.I. A.2d 320 237 ing power. Jennings Drilling v. CM&W post-injury earnings “A workman’s is ev Co., 69, Wyo. (1957). 77 He which, depending upon idence the circum that he is entitled to the award must.show case, may stances of an individual be of Hasser, sought. Matter 647 P.2d of little, great, importance or no in deter (1982). 66 mining earning capacity.” loss of Ford Fund, Or.App. v. State Accident Ins. 7 case, present judge In the 549, 491, (1972). also, 492 P.2d 493 See stated in his order that: Jacobs, Compensation Matter 59 “I am not aware section Or.App. Statutes which However, percent- would allow me to determine a “[wjhile wages earnings age injured or of a an because evidence, may varying workman be in its worker has suffered a decrease in his course, probative according value to the circum- income. reduced income Of stances, power reasons, earning capacity, many of his can be occasioned for extent, any, especially it is obvious that the if in these economic times. point. “However, all dence before the this is beside court all consistent with provides opinion. Compensation law this The Worker’s determined a Doc- disability to be Reversed and remanded. determination tor’s Mr. Perhaps you should have disability. ROONEY, Justice, dissenting. re- his doctor or McCarty reexamined physi- quest appointment of another I. your petition I will the basis of cian. On I only extremely believe it not to be hearing.” (Emphasis not set another speculative gauge and unreliable to the ex- added.) permanent partial disability only tent of on may medical Factors other than evidence earnings, evidence of reduced but it is also determining the amount of be considered in statutorily not authorized. *4 State, Wyoming the award. ex rel. Work- cases, compensation judicial In worker’s Colvin, supra. Loss of Comp. er’s Div. v. decisions from other states are of little or appropriate in income can help no in Wyoming cases inasmuch as our judge the cases. It seems that was not duplicat- law is not seventy-five percent re- persuaded that the in designedly ed other states. Our law by duction in income as evidenced income inju- restricts consideration to the effect an in tax returns was sufficient evidence itself work, ry ability has on ability the to not the prove appellant’s to that the loss of income money. to earn directly by appellant’s injury. was caused “ * * * (1) One factor to be considered is per equal Loss of income does not se com- ability the to continue pensable disability. To the extent that the perform to work for which he was rea- viewpoint disability that order reflects a sonably by experience training suited only can be determined a doctor’s deter- prior added.) injury.” (Emphasis disability, percentage mination of the it 27-12-403(h), Section W.S.1977. is incorrect. Non-medical relevant factors judge The trial definitely was correct in can and should be considered. stating in his order that: in denying It is obvious that the “I am any not aware of section of the application seventy-five percent perma for Compensation Worker’s Statutes which partial disability, simply trial court nent would percent- allow me to determine a percent impair ten overlooked five to age disability injured because an ment to the two doctors. testified This worker has suffered a decrease his undisputed. application An evidence was * * *” income. any percentage compen for an award of In Wyoming State ex rel. application sation includes an lesser Colvin, Wyo., Division may appropri amount that the court deem (1984), propriety we noted the ate. A claimant is not bound relating of evidence ability to the decreased amount asked for. It is not an all-or-noth perform claimant to work which ing proposition. The court can award reasonably he was injury, suited before the lesser amount established the evidence. carefully but we gauging refrained from this, Although specifically we have not said disability by comparable earnings. import previous it is the clear of our hold Now, case, opening this we are the door See, State, ings. Work into evidentiary an uncontrollable area of Colvin, Comp. supra; er’s Div. v. Fox v. speculation deliberately leg- avoided Co., Wyo., 401 Drilling Hubbard P.2d 706 islature. (1965). Therefore, case is this remanded to district court for further consideration of II. the amount that should be awarded the permanent worker partial disability strong objection I have no to a remand of upon based the record made and the purpose taking evi- case for the correct per- medical evidence as to a partial disability,

manent Ibut do not think EQUALIZATION, STATE BOARD OF proper showing a has been made to us for Appellant (Respondent), such action. Appellant’s pleadings in this (the case COMPANY, TENNECO OIL claim) made no mention of an issue based (Petitioner). Appellee on medical evidence. simply The claim as No. 84-46. permanent a partial serted 25% by earning Now, “as shown losses.” on Supreme Wyoming. Court of appeal, for the appellant first time asks for Jan. 2V2-year-olddepositions consideration of assigning medical doctors a 5% 10% permanent disability. The 10% adverse

parties had no notice of this contention and opportunity update

no or otherwise veri

fy or contest the assertion. We do not

normally give relief under such circum

stances. Explora Valentine v. Ormsbee Corporation,

tion

(1983); Builders, ABC Inc. v. Phillips,

Wyo., (1981); 632 P.2d 925 Harris v. Griz

zle, (1979); Scherling v. (1979);

Kilgore, Wyo., 599 P.2d 1352 Kear Lake,

ney Company Land & Reservoir

Lake Company, Wyo., DeSmet Reservoir (1970); Holmes, Watts

Appellant ought inject not be allowed to theory

a new and issue for the first time on

appeal. Again, precedent with far-reach-

ing being results is established the ma-

jority opinion.

III. unwilling

I am previous overrule our

positions in both of respects, these I

would affirm the trial court.