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Wesaw v. Quality Maintenance2/20/2001
anent injury was likely because "you can take a bath in it." Wesaw's throat felt sore later that night, but he went to work the next day. At that time, his supervisors announced to employees that a large sulfuric acid leak had occurred the previous day, necessitating repairs that would not allow work. Wesaw was sent home, and he rested that day and over the weekend. Wesaw's wife was concerned about his illness, but Wesaw repeated his supervisor's statement that you could bathe in the substances and not be hurt. Both Wesaw and his wife testified that Wesaw was convinced that his illness was due to his asthma condition, and he took those medications that weekend. Although he felt ill, he returned to work on Monday and Tuesday. He became too ill to work on Tuesday, was driven home by his employer, and sought medical treatment. The next day, October 22, 1998, he was diagnosed with "dysphagia, which is pain with swallowing, and inhalation injury."
[ ] He filed an injury report on November 3, 1998, by telephone. On November 5, 1998, the Division issued an "Initial Review: Notice of Lack of Information" letter requesting an explanation by December 3, 1998, why his injury report had not been submitted within the ten-day limit required by Wyo. Stat. Ann. § 27-14-502(a). Wesaw wrote back on November 20, 1998, that he reported the accident as soon as he knew that he would have to be treated and could no longer work. The Division apparently accepted this explanation because it was not the basis for denial when it issued a "Final Determination" letter dated December 8, 1998, denying benefits stating that the "incident" did not meet the definition of an injury under Wyo. Stat. Ann. § 27-14-102(a)(xi); his condition was pre-existing; and the evidence did not show that he had suffered a work injury.
[ ] Wesaw objected to the denial, and the matter was eventually set for hearing on August 5, 1999. The employer's disclosure statement, filed after the deadline set forth in the prehearing order, identified a timeliness issue for failure to file an injury report within ten days as required by Wyo. Stat. Ann. § 27-14-502(a). At the hearing, Wesaw objected to consideration of the issue, contending that he had not received proper notice. The record indicates that Wesaw believed the timely notice issue was limited to the time difference between October 22 and November 3, and he argued that W.R.C.P. 6 counted only work days. The opposing attorneys never stated that they were also contending that the date of injury was October 15, 1998. The Division's attorney asked the hearing examiner for a clarification whether late filing was an issue, and at that point, the hearing examiner allowed evidence on the issue but reserved ruling on whether notice had been proper. Wesaw proceeded to present evidence limited to establishing that he had suffered a compensable, work-related injury following a chemical exposure incident. He testified that he immediately notified his employer of the incident, but kept working and was diagnosed with an inhalation injury on October 22, 1998. He then rested his case.
[ ] At the close of Wesaw's case, the opposing attorneys both moved for judgment at that time, claiming that Wesaw's testimony indicated that he was aware he had been injured on October 15, 1998, and therefore, had not timely filed nor had he presented any evidence rebutting the statutory presumption of prejudice. Wesaw's attorney argued that due process and Wyo. Stat. Ann. § 16-3-107 required specific notice that both of these issues would be raised at the hearing, and these requirements had not been complied with before the hearing.
[ ] The hearing examiner determined that Wesaw was aware that he had been inju
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