McCarty v. Bear Creek Uranium Co.

694 P.2d 93, 1985 Wyo. LEXIS 429
CourtWyoming Supreme Court
DecidedJanuary 23, 1985
Docket84-65
StatusPublished
Cited by38 cases

This text of 694 P.2d 93 (McCarty v. Bear Creek Uranium Co.) 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
McCarty v. Bear Creek Uranium Co., 694 P.2d 93, 1985 Wyo. LEXIS 429 (Wyo. 1985).

Opinions

CARDINE, Justice.

This appeal is from the denial of a permanent partial disability award under the Wyoming Worker’s Compensation Act. We reverse and remand.

Appellant suffered a compensable injury while working for Bear Creek Uranium Company and was awarded temporary total disability. Subsequently appellant applied for a seventy-five percent permanent partial disability based on loss of earnings as evidenced by income tax returns filed both before and after the injury. The depositions of two doctors were introduced by stipulation of the parties. Dr. Beehler, a neurosurgeon, testified by deposition to a disability of five to ten percent based on subjective symptoms. Dr. Ropp, an orthopedic surgeon, testified by deposition that appellant had a ten percent permanent impairment of the body as a whole. The district court denied appellant’s claim of permanent partial disability.

Appellant raises the following issues: “1. Whether Employee-Claimant is entitled to seventy-five percent (75%) permanent partial disability or some part thereof as a result of a loss of income attributable solely to his injury under § 27-12-403(h), W.S.1977.
“2. Whether Employee-Claimant is entitled to ten percent (10%) permanent partial disability based upon the impairment to which all medical personnel have testified pursuant to § 27-12-403(a), W.S. 1977.”

Section 27-12-403, W.S.1977, states in pertinent par-t:

“(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. ¡⅜ ⅜ * ⅜ * *
“(h) For any other injury known to surgery or medicine to constitute permanent partial disability, the employee shall receive 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.”

In worker’s compensation law, disability means an impairment of earning capacity. Northwest Carriers, Inc. v. Industrial Comm’n of Utah Second Injury Fund, Utah, 639 P.2d 138 (1981). We have previously held that some medical statement of total disability or a percentage of partial disability is necessary. Conn v. Ed Wederski Const. Co., Wyo., 668 P.2d 649 (1983); Cardin v. Morrison-Knudsen, Wyo., 603 P.2d 862 (1979). However, the court is not bound by medical testimony; non-medical witnesses and evidence are competent to [95]*95prove disability. State, ex rel. Wyoming Worker’s Comp. Div. v. Colvin, Wyo., 681 P.2d 269 (1984). Medical testimony alone does not necessarily determine the type of award which should be given. Employers Mutual of Wausau v. Eidson, Colo.App., 646 P.2d 959 (1982).

“The concept of disability compensation rests on the premise that the primary consideration is not medical impairment as such, but rather loss of earning capacity related' to that impairment. An award for compensation must be supported by a finding that the claimant suffered a compensable disability or, more precisely, a decrease in earning capacity to a work-connected injury or illness. Factors to be considered in making this finding include not only the extent of the injury, but also age, education, employment available in the área for persons with the capabilities in question, and intentions as to employment in the future.” (Footnote omitted.) Vetter v. Alaska Workmen’s Compensation Board, Alaska, 524 P.2d 264, 266 (1974).

Generally the loss of earning power of the worker is the theoretical basis for allowance of compensation. Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P.2d 1012 (1957). The evidence of wages earned by the employee is material to the question of the employee’s earning capacity and entitled to whatever weight the fact finder gives to it. Peloso, Inc. v. Peloso, 103 R.I. 294, 237 A.2d 320 (1968).

“A workman’s post-injury earnings is evidence which, depending upon the circumstances of an individual case, may be of great, little, or no importance in determining loss of earning capacity.” Ford v. State Accident Ins. Fund, 7 Or.App. 549, 492 P.2d 491, 493 (1972). See also, Matter of Compensation of Jacobs, 59 Or.App. 1, 650 P.2d 154 (1982).

However,

“[wjhile the wages or earnings of a workman may be evidence, varying in its probative value according to the circumstances, of his earning power or capacity, it is obvious that the extent, if any, to which the workman’s earning capacity is affected by the injury complained of is not necessarily measured by the difference between his earnings before and after the injury, since the amount of his actual earnings may be affected by various extraneous matters. Ordinarily, any loss of earnings which is not attributable to the injury, as, for example, loss due to the workman’s fault subsequent to the accident, or to his illness not connected with the accident, or to a general business depression, is not to be considered in determining the amount of compensation. Loss of earnings due to inability to obtain work is to be considered in determining the amount of compensation insofar, but only insofar, as such inability is attributable to the injury.” (Footnotes omitted.) 82 Am.Jur.2d Workmen’s Compensation § 347, p. 145.

If jobs are unavailable because of economic conditions and the worker would not be hired regardless of his physical condition, then he has suffered no economic loss because of his industrial injury. Wiedmaier v. Industrial Comm’n, 121 Ariz. 127, 589 P.2d 1 (1978).

The claimant in the worker’s compensation case has the burden of establishing every essential element of his claim by a preponderance of the evidence. Alco of Wyoming v. Baker, Wyo., 651 P.2d 266 (1982). The claimant must show the extent of his injury, the disability, or loss of earning power. Jennings v. CM&W Drilling Co., 77 Wyo. 69, 307 P.2d 122 (1957). He must.show that he is entitled to the award sought. Matter of Hasser, Wyo., 647 P.2d 66 (1982).

In the present case, the judge stated in his order that:

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Bluebook (online)
694 P.2d 93, 1985 Wyo. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarty-v-bear-creek-uranium-co-wyo-1985.