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Wilkinson v. State ex rel. Wyoming Workers' Safety and Compensation Division12/7/1999
her doctors; we had five other witnesses. If those things are in issue again here within six months of the last decision, we are going to need some time to put everything together.
. . . f the Office is ruling that we have a different burden of proof from what the Medical Commission ruled and is opening up the issue of Mr. Wilkinson=s continued entitlement to extended benefits on the issue that [Division=s counsel] raised, which is the issue of whether he has undergone retraining efforts, quite frankly, the Medical Commission=s decision precludes any dispute over those things because the Medical CommissionCand that was exactly their argument before, was that he hadn=t undergone retraining. We had vocational people testify, and the Medical Commission ruled that he has done what he could do.
Now, if the Division is going to stipulate to the findings of fact and Conclusions of law that were entered into by the Medical Commission regarding his ability to undergo retraining, and so on, then maybe the financial issues are all we have to deal with. If that=s not the case, then yes, we have to change our witnesses and we are going to have to go through the same hearing that we did before, so we are going to add probably eight other witnesses and have to do depositions and everything we did before. (Emphasis added.)
Pressing its advantage, the Division refused to stipulate to the findings of the Medical Commission. After the hearing examiner noted Wilkinson=s objection, she ruled that the hearing would proceed.
The next day, Wilkinson filed a motion to withdraw his application and to dismiss the pending action without prejudice. On November 5, the Division filed a Traverse to the Motion and asked that if the matter is dismissed, it be dismissed with prejudice. Arguments on this motion were heard as a preliminary matter on November 6, 1997. At that time, counsel for Wilkinson explained that there were two reasons for the motion to dismiss.
The first was that counsel for the parties had discussed, prior to the November 3 hearing, that the only probable issue at the November 6 hearing would be whether other sources of income were to be considered under the 1983 statute and, if so, what they were. Both counsel had agreed that the number of witnesses would be limited, and Wilkinson would not be required to show whether or not he had earning ability, whether he continued to be disabled, or whether he had made efforts at retraining or employment. Given the understanding of counsel, and the ruling on Monday morning, there was insufficient time to prepare for the hearing. Wilkinson=s counsel argued that proceeding to hearing on the date set would essentially deny Wilkinson a fair opportunity to be heard. Secondly, Wilkinson maintained that the July 1997 application was unnecessary under the law in effect in 1983 and, therefore, if the Medical Commission=s decision was applied on Wilkinson=s petition for writ of mandamus, Wilkinson=s present claim for 1997 benefits would be moot.
Although the Division=s counsel recalled the conversation referred to by Wilkinson=s counsel, he explained, Aobviously, I was looking at the case from a different viewpoint.@ He continued:
My view is that what we were talking about is extended benefits. If the 1983 was applicable, we would be arguing about whether or not the social security that he received should be considered. And if so, to what extent. If the 1988 law was applicable, we would have been arguing that he had not undertaken sufficient retraining, re-education. We want this office to consider all of his active and passive income. We are ready to proceed today. We have got our evidence and we are ready to
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