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Wilkinson v. State ex rel. Wyoming Workers' Safety and Compensation Division12/7/1999
v. Game & Fish Comm'n, 845 P.2d 1040, 1042-45 (Wyo.1993).
The Division argued that the Medical Commission=s ruling was limited to a one year period pursuant to ' 27-14-403(i)(G), and that Wilkinson was required to file a new claim each year before he was entitled to extended benefits. The plain language of subsection ' 27-14- 403(g)(i)(G), however, limits its application to A ny award granted under this subsection.@ The award granted by the Medical Commission was pursuant to ' 27-12-405 (1983). Therefore, ' 27-14-403(g)(i)(G), by its own language, does not apply here. Instead, we must look to the 1983 provision to determine whether Wilkinson was required to file a separate claim for 1997 benefits.
The provisions relating to the continuation of extended benefits, once awarded under ' 27-12-405(d) state, AThe additional compensation shall be payable only so long as the employee=s earning power is impaired, and his right to receive compensation terminates upon his death;@ that Athe award may be . . . decreased upon proper showing to the court that there has been a substantial change in the employee=s earning power, except that no modification of a prior award is effective less than six (6) months after the effective date of the prior award;@ and,@ he award shall be decreased to an amount necessary to qualify the employee for maximum benefits for any other state or federal government pension plans of any type to which the employee is otherwise eligible.@ ' 27-12-405(d)(v), (vi) & (vii). The statute is silent as to whether the claimant must refile a claim for extended benefits after the initial claim is granted.
In Wright v. State ex rel. Workers' Safety & Compensation Div., 952 P.2d 209, 210-14 (Wyo. 1998), we recognized that the rule of liberal construction of the statute in favor of the claimant is applied when the statute at issue is silent as to the issue presented and precedes the legislature=s 1994 amendment to the preamble of the worker=s compensation statutes. Therefore, our construction in this case Ashould be accomplished to afford coverage wherever that end may be achieved without unreasonably extending the clear language of the statute.@ Id., at 211 (and cases cited therein). Applying this rule, there is nothing in the statute which requires Wilkinson to continue to file annual claims for extended benefits. Rather, the language of the 1983 provisions places the burden on the Division to initiate an action to decrease or terminate Wilkinson=s extended benefits once awarded by the Medical Commission.
The Division did not initiate any action in this case. It failed to present any evidence that Wilkinson=s earning power had substantially changed, or that the benefits he received precluded a maximum award of any state or federal benefits. Therefore, the Division failed to establish a prima facie case that the benefits should be decreased. Under these circumstances, Wilkinson carried no burden of proof, and the hearing examiner erred in dismissing the case for his failure to shoulder a non-existent burden.
I would, therefore, reverse. Should the Division believe that Wilkinson=s current benefits are in contravention of Wyo. Stat. ' 27-12-405(d)(vii), it is free to initiate action on that issue. Given that I would find the hearing examiner=s dismissal with prejudice in error, the second judgment in case no. 99-41 must also be reversed.
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