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Wilkinson v. State ex rel. Wyoming Workers' Safety and Compensation Division12/7/1999
notice to the employer and division;
(B) The employee establishes a reasonable effort on his behalf has been made to return to part time or full time employment including retraining and educational programs;
(C) The hearing examiner in determining entitlement under this paragraph shall consider income of the employee from all sources including active or passive income, household income and any monthly amount from any other governmental agency;
(F) The hearing examiner may decrease an award to qualify an employee eligible for maximum benefits under any other state or federal pension plan;
(G) Any award granted under this subsection shall not exceed twelve (12) months but may be renewed following additional hearings unless the hearing examiner, the director and the employer mutually determine a hearing is not necessary. Wyo. Stat. Ann. ' 27-14-403 (Michie June 1987 Rpl.).
The import of which law is applied directly affects Wilkinson=s burden of proof to establish his eligibility for benefits. As the Hearing Examiner recognized, Athere are certain requirements under 403 [Michie June 1987 Rpl.] as opposed to 405 [Michie June 1983 Rpl.], and the burden of proof is heightened on the Claimant under that statute in 403 as opposed to 405.@ Because the hearing examiner=s dismissal of Wilkinson=s claim was based solely on his failure to meet the burden of proof under the law in effect in 1988, the main issue on appeal is whether collateral estoppel precluded the hearing examiner from applying that law.
2. The Facts
In 1983, Wilkinson fell from a truck while at work and suffered three compression fractures of his vertebrae, a dislocated collar bone, and a smashed right leg. He received permanent total disability benefits in 1988, which expired in 1992. In 1993, Wilkinson requested extended benefits. At a contested case hearing before a hearing examiner, the parties stipulated that the 1988 law applied. The hearing examiner denied the benefits requested in 1993.
The current dispute began when Wilkinson again filed for extended permanent total disability benefits on January 28, 1996. Upon the Division=s denial of that claim, and Wilkinson=s objections to the Division=s determinations, the case was referred for a full hearing to the Medical Commission to be held on April 10, 1997. In the meantime, in December 1996, Wilkinson submitted another request for extended benefits for 1997 through January 1998.
On March 20, 1997, the Division filed a Motion for Instruction on Applicable Law, arguing that the parties= stipulation applying the 1988 law at the 1993 hearing was binding on the current claim. A hearing was held on the Division=s motion on April 1, 1997. Relying on L.U. Sheep Co. v. Board of County Comm=rs of County of Hot Springs, 790 P.2d 663, 674 (Wyo. 1990), the Medical Commission made an oral determination that it was not bound by the parties= stipulation of law in an earlier proceeding, and concluded that the law governing Wilkinson=s claim for extended benefits was the law in effect at the time of his injury, Wyo. Stat. Ann. ' 27- 12-405(d)(i) through (vii) (Michie June 1983 Rpl). The contested case hearing on the merits of Wilkinson=s claim was held on April 10, 1997, at which both parties presented numerous witnesses and exhibits. On May 14, 1997, the Medical Commission issued a written order regarding its determination of applicable law, and holding that Wilkinson had proven Ahis earning power has been and continues to be impaired by reason of the injury for which compensation was awarded@ and that his current earning capacity was zero. The Division did not appeal the Medical Commission=s decision.
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