State Ex Rel. Director, Worker's Compensation Division v. Tallman

589 P.2d 835
CourtWyoming Supreme Court
DecidedJanuary 17, 1979
Docket5007
StatusPublished
Cited by17 cases

This text of 589 P.2d 835 (State Ex Rel. Director, Worker's Compensation Division v. Tallman) 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
State Ex Rel. Director, Worker's Compensation Division v. Tallman, 589 P.2d 835 (Wyo. 1979).

Opinions

RAPER, Chief Justice.

This appeal arose from an order of the district court awarding Worker’s Compensation benefits to the appellee-employee, Harold M. Tallman, for a permanent partial disability caused by pulmonary fibrosis. The appellant, Wyoming State Treasurer, ex rel. Worker’s Compensation Division (hereinafter Division), disputes the award and raises a number of issues on appeal.1 The determinative question is whether the claim was barred by the applicable statute of limitations. We will reverse the order of award because it is barred by the statute of limitations. That being dispositive, we need not answer other issues.

The record shows that the proceedings in this case followed a tortuous path which we will not set out in detail. Employee worked in a bentonite processing mill from 1937 to 1948. During the years 1937-1939, he was exposed to heavy concentrations of benton-ite dust while working as a sacker and to lesser concentrations of that dust when he ■ worked outside the mill in the years 1940-1948. Employee left his job at the benton-ite mill in 1948 to open his own business. He suffered some mild health problems shortly after leaving this employment but they subsided somewhat when he discontinued smoking. He was exposed to no other dust hazard in the years between 1948 and 1976. In 1976 it was determined that employee suffered from pulmonary fibrosis. Examining physicians found that the condition was probably caused by his exposure to bentonite dust in the years 1937-1948.

Employee filed a Worker’s Report of Accident or Occupational Disease on July 21, 1976, at which time he was retired and 75 years of age. An Employer’s Report of Accident or Occupational Illness or Disease was filed on October 18,1976, by the Federal Bentonite Division of Aurora Metal Company.2

After some preliminary proceedings, the district court, on March 4, 1977, made and entered an order in pertinent part:

“ * * * that the alleged injury is one that occurred over a substantial period of time; that at the time of exposure to the injurious condition the workmen’s compensation act did not cover occupational diseases; that the employer and the subsequent employers, including Federal Bentonite Division — Aurora Metal Company, cannot now be bound by legislation enacted after the time of exposure to the injurious condition which may impose upon them liability that did not exist at [837]*837the time of claimant’s employment; that the statute of limitations for filing a claim as set forth in Section 27-349(b) of Wyoming Statutes, 1957 does not bar the claim of the employee-claimant in this matter; that the claim of the employee-claimant is within the time period for filing claim as set forth in Section 4 of Article 8 of the Wyoming Session Laws, 1975;3 and further that if there is a later determination that the employee-claimant has a compensable injury then that injury shall be compensated from the Wyoming Industrial Accident Fund, and not from any of the employer-defendants funds.4
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT that Wyo-Dak Chemical Company and all of the subsequent owners of its workmen’s compensation account, including Federal Bentonite Division — Aurora Metal Company, be, and they are hereby dismissed as employer-defendants in this action.
“IT IS FURTHER ORDERED that the motion to dismiss the claim of the employee-claimant filed by the Wyoming State Treasuer [sic] ex rel Workmen’s Compensation Department be, and is hereby denied.
“IT IS FURTHER ORDERED that the employee-claimant be examined by a physician qualified in the treatment and diagnosis of lung conditions, and said physician shall be selected by the employee-claimant from a list of such qualified physicians to be submitted to the employee-claimant by the State Treasurer ex rel Workmen’s Compensation Department of the State of Wyoming.” (Footnotes added.)

On January 18, 1978, an order of award was filed by the district court:

“ * * * the court finds that Harold M. Tallman was injured while in the employ of Wyo-Dak Chemical Company, and that said injury was sustained while the employee was in the scope of his employment and while working in a covered occupation under the Workmen’s Compensation Law of the State of Wyoming, and was not caused by the culpable negligence of said employee, and the court further finds that the employee suffered permanent partial disability to the extent of 20%, and that the medical reports filed herein establish that the injury arose out of and in the course of his employment, and further finds that full compensation benefits shall be awarded as by law provided to the employee-claimant as a result of said injury.
“IT IS THEREFORE ORDERED that the injury of the employee-claimant, Harold M. Tallman, occurred while employed by Wyo-Dak Chemical Company and was incurred while the employee was in the scope of his employment and in a covered occupation under the Workmen’s Compensation Law of the State of Wyoming and that an award of 20% permanent partial disability shall be made to the employee and that all claims now and hereafter filed in this matter arising out of said accident of the employee, be, and hereby are ordered paid from the Wyoming State Industrial Accident Fund, and not from any of the employer-defendant’s fund.5
“IT IS FURTHER ORDERED that the motion to dismiss the claim of the employer-claimant filed by the Wyoming State Treasurer, ex rel Workmen’s Compensation Department, be, and hereby is denied.” (Footnote added.)

[838]*838It is evident that employee’s claim accrued in 1976 when it was determined he suffered from pulmonary fibrosis. Provisions of the Worker’s Compensation Act in force at the time of injury govern. In Matter of Injury to Barnes, Wyo.1978, 587 P.2d 214; Bemis v. Texaco, Inc., Wyo.1965, 400 P.2d 529, 530-531, reh. den. 401 P.2d 708.

In a Worker’s Compensation case, a “cause of action” exists in favor of an employee at the time he received an injury arising out of an industrial accident occurring during the course of his employment. Claim of Evans, Wyo.1966, 417 P.2d 17; Claim of Heil, 1948, 65 Wyo. 175, 197 P.2d 692. Both parties agree that the statutes as they stood in 1976 were the proper reference for determining the rights of the parties. Section 4, ch. 149, S.L.Wyo.1975 (footnote 3, supra) and the 1975 act state that injuries which occur over a substantial period of time shall be deemed to have occurred on the date of discovery.

It is evident from the language used in § 4 that it is not a statute of limitations provision, but rather is a statement of what statutory provisions will apply dependent upon the date of occurrence of an injury.

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589 P.2d 835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-director-workers-compensation-division-v-tallman-wyo-1979.