Matter of Injury to Van Buskirk

741 P.2d 120, 1987 Wyo. LEXIS 494
CourtWyoming Supreme Court
DecidedAugust 21, 1987
DocketNo. 86-251
StatusPublished
Cited by5 cases

This text of 741 P.2d 120 (Matter of Injury to Van Buskirk) 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
Matter of Injury to Van Buskirk, 741 P.2d 120, 1987 Wyo. LEXIS 494 (Wyo. 1987).

Opinion

THOMAS, Justice.

The issue presented by this appeal is whether an award of additional permanent partial disability under the Wyoming Worker’s Compensation Act (prior to July 1, 1987) is consistent with and sustained by the evidence. The district court found that Wesley Van Buskirk was entitled to receive an award of an additional 10% permanent partial disability. We conclude that there was sufficient evidence to sustain that finding, which is consistent with the evidence in the record, and we affirm the judgment of the district court.

The appellant, the City of Buffalo (hereinafter City), in attempting to overturn the decision of the district court, states the issue as:

“Was it in error for the District Court to order ten percent (10%) additional permanent partial disability to an employee who had a zero physical impairment rating from a medical physician and had an increase in his wages since the date of injury?”

Van Buskirk argues:

“The trial court correctly ruled that the appellee had met his burden of proof and was entitled to compensation for his inju[121]*121ry under Wyoming’s Worker’s Compensation law.”

Van Buskirk began working for the City in May of 1977. He was assigned to drive a street sweeper but also performed other tasks in the course of his employment. On June 12, 1979, Van Buskirk injured his upper back while changing a tire on a city truck. The City has admitted that his injury occurred during the course and within the scope of his employment. After he was injured, Van Buskirk filed a Workmen’s Report of Accident, and the City did not object to his claim. Following the date of the injury, and continuing through most of 1983, Van Buskirk suffered headaches, back pain and pain in his right shoulder, and he sought extensive medical treatment for this injury. Because of the extended medical treatment, the State of Wyoming requested that Van Buskirk submit to a physical examination to determine the extent of his disability, and he was sent to Dr. Gerald L. Baker. Dr. Baker’s report stated that Van Buskirk should be awarded a permanent partial disability rating of 30% for the injury to his upper back.

Then, at a hearing on April 9, 1984, it was disclosed that Van Buskirk previously had suffered an injury to his lower back while employed by the City of Casper. Subsequent to that injury, Van Buskirk had three operations on his back, including a back fusion. He ultimately received awards aggregating 30% permanent partial disability from Worker’s Compensation because of the Casper injury. In the course of the April 9, 1984 hearing, Dr. Baker testified that he understood the original award to Van Buskirk was 20% permanent partial disability, and he had added 10% permanent partial disability, making a total of 30% permanent partial disability. After he had been informed that the prior award totaled 30% permanent partial disability, Dr. Baker, without re-examination of Van Buskirk, testified that he would rate Van Buskirk permanently partially disabled to the extent of an additional 10%.

After that hearing, the district court held that Van Buskirk should receive 10% additional permanent partial disability, resulting in his being 40% permanently partially disabled. Following a motion for a new trial, Van Buskirk was re-examined by Dr. Baker in July of 1986. Dr. Baker then re-affirmed his original opinion that Van Buskirk was permanently partially disabled to the degree of 10% as a result of the latest injury. A second hearing was held on September 2,1986, and the district court again awarded Van Buskirk an additional 10% permanent partial disability because of the injury sustained by working for the City.

The record discloses that Van Buskirk continued to work for the City after he was injured, and over the course of the years he received several salary increases. In 1985, between the hearings in this case, he quit his job in Buffalo and accepted employment with the City of Worland. His salary at Worland is nearly the same as his salary was at Buffalo.

The City contends that in order for Van Buskirk to receive an award of permanent partial disability from the Worker’s Compensation Fund, he must establish not only a physical impairment but a loss of earnings as well. According to 2 A. Larson, Law of Workmen’s Compensation, § 57.11 (1986), an employee must either show he was injured in the medical or physical sense, or that he is de facto unable to earn wages. The City further asserts that there was not sufficient substantial evidence to sustain Van Buskirk’s burden of showing the essential elements of permanent partial disability.

At the relevant time, permanent partial disability statutorily was defined in § 27-12-403(a), W.S.1977 (June, 1983 Rev.) as:

“(a) Permanent partial disability means the loss or permanent impairment of a limb or sense, or any other injury known to surgery or medicine to constitute permanent impairment of a bodily function.”

The injury to Van Buskirk’s back resulting in permanent partial disability is covered by the provisions of § 27-12-403(h), W.S. 1977 (June, 1983 Rev.):

“(h) For any other injury known to surgery or medicine to constitute permanent partial disability, the employee shall re[122]*122ceive compensation in the amount proportional to the extent of permanent partial disability based as near as may be upon the foregoing schedule. One (1) factor to be considered is the ability of the employee to continue to perform work for which he was reasonably suited by experience or training prior to the injury.”

This court has recognized consistently that the worker’s compensation law is to be construed, if rationally possible, so that industry, and not the injured worker, will bear the burden of industrial accidents. Conn v. Ed Wederski Construction Company, Wyo., 668 P.2d 649 (1983); Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219 (1977); Wyoming State Treasurer ex rel., Workmen’s Compensation Department v. Boston, Wyo., 445 P.2d 548 (1968).

The degree of permanent partial disability is a question of fact to be resolved by the trial court. State ex rel. Wyoming Worker’s Compensation Division v. Lewis, Wyo., 739 P.2d 1225 (1987). In reviewing the sufficiency of the evidence to sustain such a finding, we accept the prevailing party’s evidence as true, give to it every favorable inference which may be drawn, and do not take into account conflicting evidence submitted by the other party. Claim of Grindle, Wyo., 722 P.2d 166 (1986). We will not interfere with the findings of fact by the trial court unless they are clearly erroneous or manifestly wrong and totally against the evidence. Claim of Grindle, supra, at 169.

When the evidence in this case is examined according to this standard, the facts disclosed are that Van Buskirk suffered a separate and distinct injury while working for the City for which he should be compensated.

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741 P.2d 120, 1987 Wyo. LEXIS 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-injury-to-van-buskirk-wyo-1987.