Jones v. Jesse's Disposal Service

702 P.2d 1299, 1985 Wyo. LEXIS 511
CourtWyoming Supreme Court
DecidedJuly 12, 1985
DocketNo. 84-294
StatusPublished
Cited by3 cases

This text of 702 P.2d 1299 (Jones v. Jesse's Disposal Service) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Jesse's Disposal Service, 702 P.2d 1299, 1985 Wyo. LEXIS 511 (Wyo. 1985).

Opinion

CARDINE, Justice.

This is an appeal from a denial of additional benefits under the Wyoming Worker’s Compensation Act. We affirm.

Appellant raises the following issues:

“1. Whether the trial court improperly considered facts or information which had not been introduced into evidence.
“2. Whether there was substantial evidence to support the trial court’s findings of fact in denying the employee’s motion for modification of benefits.”

Appellant injured his back on December 16, 1981, while working for Jesse’s Disposal Service. He reported the incident to a doctor on the same day. He presented a claim for temporary total disability with the clerk of court; some of his medical bills were paid. He was released for light duty; however, when he reported to work, he was told that there were no light-duty jobs and he should return when he was given a full release. He claims that he mistakenly believed that, since he was not working, he was no longer covered by worker’s compensation. He did not consult with a doctor again until 1983. He applied for these doctor bills to be paid by worker’s compensation and was advised that they could not be paid unless his case were reopened. In April 1984, he applied for “additional benefits or modification” of the award pursuant to § 27-12-606, W.S.1977,1 on the grounds that benefits were “terminated as a result of mistake and/or fraud.” His employer protested the award; a hearing was held on July 26, 1984, and the court denied the application for modification.

IMPROPERLY CONSIDERED EVIDENCE

Appellant contends that the decision of the trial court should be reversed because the court improperly considered material not admitted into evidence. This material, contained in the court file, was not intro-' duced into evidence at the hearing on appellant’s application for additional benefits or modification.

At the hearing appellant testified that he was pulling a dumpster, slipped, and the dumpster came over the top of him, over the back of his leg, and hit him in the head and back. The parties stipulated to the [1301]*1301admission of the deposition of Dr. Metz, in which Dr. Metz testified that appellant had pulled a large container down an icy incline, slipped, and was partially run over by the container, that the container slid up his legs to his knees and, in the process, struck the lower part of his neck and upper thoracic area, that he had been pinned under the container and that someone had to push the dumpster off of him.

The worker’s report of accident, prepared by appellant, was introduced into evidence, describing the injury as “[pjulling a garbage container when I slipped and fell. My hand caught in the handle and the container pulled me and hurt my back.” The employer testified that appellant was pulling the container out when he slipped and fell and got hung on the container.

Material not introduced into evidence but referred to by the court, and to which appellant objects, consisted of the employer’s report stating that the employee was “[pjulling a garbage container when he slipped and fell, hand caught in the handle and the container pulled him and hurt his back.” and a letter written by Dr. Metz to Dr. Baker which described the accident as:

“He pulled a large garbage container down an incline, slipped on the ice and was partially run over by this container. He says it slid up his legs to his knees, and more importantly he was struck in the low cervical and upper thoracic area by the heavy metal pickup channel that the trucks latch onto in order to dump the contents into the truck. Someone came by and pulled the container off of him, and he got up.”

The court denied the additional benefits because appellant had not sustained the burden of proving that the industrial accident was responsible for his present back condition and that, since Dr. Metz had not been advised of the original version of the accident, the doctor could not give an opinion as to causal connection.

Section 27-12-602(b), W.S.1977, provides: “(b) All written reports, claims and other writings filed with clerk of court by the parties shall be considered as pleadings in a claim whether or not formally introduced into the court in a contested proceeding.”

This is the crux of appellant’s argument, i.e., that the court considered reports and claims as evidence which should'have been considered as pleadings.

Appellant cites Black Watch Farms v. Baldwin, Wyo., 474 P.2d 297 (1970), as supporting authority. In that case we stated that the claims of the employee and the reports of physicians are not evidence in a worker’s compensation case.

“Neither this letter nor any of Dr. Hall’s reports were offered or received in evidence. They were clearly inadmissible because they were not subject to cross-examination. * * * [Ojne of the most basic elements of due process is the right of each party to be apprised of all the evidence upon which an issue is to be decided * * Id., at 299.

In Black Watch Farms v. Baldwin, however, there was a total absence of medical testimony relating the complaints to the injury. The only indication of a causal connection was a letter from a doctor which was not admitted into evidence.

Appellee, while conceding that the court improperly referred to information contained in the court file, contends that the issues should be resolved by employing the “invited-error” rule, inasmuch as appellant did not object to the court considering documents not formally admitted into evidence and furthermore, in closing argument, appellant directed the court’s attention to the documents contained within the court file. We need not determine whether appellant’s closing argument was sufficient to negate the effect of the court’s consideration of evidence not properly admitted. This case, unlike Black Watch Farms v. Baldwin, supra, contained identical evidence properly admitted at the hearing which was sufficient for the trial court’s decision and obviated any problem concerning the due process right of confrontation and cross-examination. The parties stipulated to the admission into evidence of Dr. Metz’s deposition. In that document he [1302]*1302testified to a version of the accident that was identical to that contained in his unad-mitted letter. Appellant’s written and signed version of the accident was also admitted into evidence. The import of appellant’s written and signed version was also identical to that contained in the employer’s report found in the court file but not admitted into evidence. There is a long-standing rule of this court that in order to constitute a ground for reversal an error must be prejudicial and affect the substantial rights of an appellant. ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925. (1981). We do not presume prejudicial error; it must be established. Anderson v. Bauer, Wyo., 681 P.2d 1316 (1984). The evidence and testimony received at the hearing were identical to that contained in the reports not offered or received into evidence. Thus, no prejudice resulted to appellant since the evidence contained in the reports was otherwise properly before the court.

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Related

Dougherty v. J.W. Williams, Inc.
820 P.2d 553 (Wyoming Supreme Court, 1991)
Matter of Jones
702 P.2d 1299 (Wyoming Supreme Court, 1985)

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702 P.2d 1299, 1985 Wyo. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jesses-disposal-service-wyo-1985.