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Wilkinson v. State ex rel. Wyoming Workers' Safety and Compensation Division12/7/1999
e law, and the Medical Commission=s Order required payment Afor any and all claims by David Wilkinson for extended benefits.@ As exhibits to his brief, Wilkinson submitted the copy of the statute in effect in 1983, the Marcia Price affidavit used in the Division=s motion, copies of past claims and correspondence from doctors, the deposition testimony of Dr. Law, and Wilkinson=s affidavit stating that his circumstances had not changed since the hearing before the Medical Commission. The Division did not submit a written response to the Motion for Summary Judgment.
The Division=s Motion for Instruction on Applicable Law, and Wilkinson=s Motion for Summary Judgment were heard on November 3, 1997. The Division=s motion was heard first.
The Division argued that the 1988 law applied, while Wilkinson maintained the Division=s position was precluded by collateral estoppel. The hearing transcript reveals that there was significant confusion as to whether the December application for 1997 benefits was pending before the Medical Commission at the time it made its decision. Nonetheless, the hearing examiner determined that the claim before her was filed in July 1997 and, therefore, was a new claim. On that basis, she determined that the Medical Commission=s Order did not preclude her finding that the 1988 law applied to this claim.
Turning to the motion for summary judgment, the Division argued that the motion was insufficient given the hearing examiner=s decision on the applicable law. The Division noted that under the 1988 provision, Wilkinson Ahas a burden of proof to show retraining, reeducation, household income, etc.@ Because none of these issues were addressed in Wilkinson=s motion, the hearing examiner denied the motion for summary judgment.
At this juncture, Wilkinson=s counsel requested a continuance of the hearing scheduled in three days. Counsel for Wilkinson explained:
We are not going to be able to go to hearing on Thursday. This has totally turned upside down the case, as far as I=m concerned. There is also a Petition for Writ of Mandamus, and we intend to pursue that in the District Court. So I=ll have to move for a continuance because it appears that what we are going to do is re-litigate what has been litigated in May that took a year and a half to get it to hearing.
The Division refused to agree with a continuance, stating:
What the Employee/Claimant has to do at the hearing on Thursday is establish reasonable effort has been made to return to part- time or full-time employment, including retraining and educational programs, and also provide sources of active or passive income, household income, any other amount from a governmental entity. We are set to go and we will ask that you hold the Employee/Claimant to a strict burden of proof. (Emphasis added.)
However, the Division=s counsel then stated that, AAwe are not contesting the issue of permanent total disability.@
@
Wilkinson=s counsel attempted to clarify the issues which would be heard at the imminent proceeding:
I guess what I need to find out is the issue of retraining is something that was certainly exhausted in the Medical Commission hearing. So if the Division will stipulate to everything but the issue of other sources of income, then we could proceed on Thursday. If we=re going to go back and re-litigate all the issues that were litigated before the Medical Commission, we=re talking about several months of preparation. We did depositions ofCI think I spelled it out in my memo. We did a vocational evaluation, they did a vocational evaluation; we did a deposition of the treating physician and three ot
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