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Wesaw v. Quality Maintenance2/20/2001
sing a specific timeliness issue under either Wyo. Stat. Ann. §§ 27-14-502 or 503, these issues need not be considered at a hearing, and Wesaw's burden is limited to proving all essential elements of his claim, namely, that he suffered a compensable work-related injury. State ex rel. Wyoming Workers' Comp. Div. v. Espinoza, 924 P.2d 979, 981 (Wyo. 1996); Wyo. Stat. Ann. § 27-14-102(a)(xi) (LEXIS 1999). Because the timeliness issues under Wyo. Stat. Ann. § 27-14-502 are many and will impose various burdens of proof depending on the precise issue, due process and Wyo. Stat. Ann. § 16-3-107 require specific notice. In this case, Wesaw was not given specific notice of any § 502 issues that would give rise to the statutory presumption that the claim be denied. We conclude this based upon a record showing that the Division did not raise any timely notice issues, the employer's notice in its disclosure statement briefly claimed that he had not complied with the ten-day filing requirement and was mailed after the deadline set in the prehearing order. Wesaw contends that this notice was not specific enough to satisfy due process or Wyo . Stat. Ann. § 16-3-107 and further contends that notice is proper only if given in the "Final Determination" letter.
[ ] We have previously held that issues not given in the Division's "Final Determination" letter can be raised in pleadings such as disclosure statements. Ireland v. State ex. rel. Wyo. Workers' Comp. Div., 998 P.2d 398, 401 (Wyo. 2000). Ireland also ruled that " leadings are used to give parties notice of the nature of claims and defenses, to narrow the issues, and to guide the parties and the court in the conduct of the case. If the pleadings and notice of hearing are to mean anything in a contested case hearing, the hearing examiner must be limited to considering only those issues presented in the notice and pleadings." Id. (citation omitted). Ireland, however, does not permit the hearing examiner to reserve ruling whether timeliness is at issue until the hearing.
[ ] If both the 72-hour employer notice and the ten-day reporting requirements of Wyo. Stat. Ann. § 27-14-502(a) are at issue, the employee may have the burden of rebutting a statutory presumption of denial by clear and convincing evidence that the Division and employer were not prejudiced. Due process and Wyo. Stat. Ann. § 16-3-107 demand that an employee know before the hearing the specific nature of claims under Wyo. Stat. Ann. § 27- 14-502(a). Ireland, 998 P.2d at 401; White v. Board of Trustees of Western Wyoming Community College District, 648 P.2d 528, 535 (1982), cert. denied, 459 U.S. 1107 (1983)); Wyo. Stat. Ann. § 16-3-107(a)(iv) (LEXIS 1999). Without a timely prehearing ruling that these issues were properly raised, Wesaw properly limited his case to proving that he had suffered a compensable work-related injury. Upon remand, Wesaw must receive specific notice of all timeliness issues, and, if applicable, the notice must state the contended date of compensable injury and whether the employee has the burden of rebutting the statutory presumption in Wyo. Stat. Ann. § 27-14-502(c). A prehearing ruling that the issues have been properly raised is required or, in accordance with Ireland, the hearing examiner is not permitted to consider the issues.
[ ] Reversed and remanded for further proceedings consistent with this opinion.
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