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Wesaw v. Quality Maintenance2/20/2001
recurrence of asthma; he self-medicated and continued to work, reassuring his wife that the exposure incident was not to blame because his supervisor had told him the chemicals were harmless. This testimony establishes that not only was he unaware of both the seriousness and the nature of his injury, but also he did not believe it was work-related. Arguably he was not acting reasonably in determining his illness was not caused by the chemical exposure; however, that is not dispositive of the issue. When he became too ill to work, he sought medical care and described the exposure incident to a doctor. The attending doctor testified that based on his history she diagnosed an inhalation injury. Because an inhalation injury can only be confirmed by further testing, Wesaw was referred to a pulmonary specialist. Following tests in January of 1999 the specialist diagnosed a lung injury apart from asthma most likely caused by chemical exposure on October 15, 1998. These facts show that, although Wesaw may have recognized the causal relationship on October 21, 1998, when he first sought medical care, he did not understand the nature and seriousness of his injury until he received the doctor's diagnosis on October 22, 1998. Because its rules count only workdays, the Division concedes that if the date of injury is October 22, 1998, his November 3, 1998, injury report was filed within the ten-day requirement of Wyo. Stat. Ann. § 27-14-502(a) and complied with the statute.
[ ] The Division contends that the hearing examiner's decision is supported by Beitel v. State ex rel. Wyoming Workers' Comp. Div., 991 P.2d 1242 (Wyo. 1999). Beitel reported an injury to the workers' compensation division on March 18, 1997, although he had begun receiving chiropractic treatment for his pain in January of 1997, and told his doctors his pain was caused by a work-related injury suffered on October 9, 1996. The hearing examiner determined that the injury was apparent to Beitel no later than when he began receiving treatment and his failure to report until March was untimely. Id. at 1246. Beitel is not inconsistent with this decision or previous decisions that identified the date of injury by the date reported to a physician when the employee was unaware of the nature or seriousness of his injury. Big Horn, 502 P.2d at 188; Curnow v. State ex rel. Wyo. Workers' Comp. Div., 899 P.2d 875, 878 (Wyo. 1995). Wesaw's case does not appear to be different from Big Horn, Curnow, or Beitel.
[ ] Knowledge of the "full extent and nature of the injury" must be distinguished from an "incident" or an "accident" before the notice and claim requirements of Wyo. Stat. Ann. §§ 27-14-502 and 503 are triggered. We find that the testimony thus far indicates that the general nature of Wesaw's injury was apparent on the date of his diagnosis, October 22, 1998, and he had not suffered a compensable injury on October 15, 1998, which started the ten-day filing period.
[ ] Although the evidence received thus far indicates that the correct date of compensable injury was October 22, 1998, the opening arguments of the employer and Division indicate that each planned to present evidence that Wesaw was not exposed to sulfuric acid at all and never suffered an injury. The hearing examiner's decision at the close of Wesaw's case prevented presentation of further evidence. We will, therefore, remand for a hearing of all evidence to determine the existence and date of a compensable injury consistent with this opinion.
Timeliness Issues
[ ] The Division has raised other timeliness issues in this appeal. In addressing those, we begin by holding that unless the Division or employer properly notifies the employee that it is rai
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