I dissent.
I cannot understand reasoning which defies the direction of § 4, Art. X, Wyoming Constitution authorizing the establishment of a worker's compensation program with payment to injured employees "except in case of injuries due solely to the culpable negligence of the injured employee," § 27-12-102(a)(xii)(C) defining "injury" as excluding "[i]njury due solely to the culpable negligence of the injured employee," and § 27-12-103(a) which excludes employees from the "rights and remedies" of the Wyoming Worker's Compensation Act when "culpably negligent." Culpable negligence of the employee has been proven in this case. He is not entitled to benefits and should not have them. While the Worker's Compensation Act is to be liberally construed, it is not intended to be a give-away scheme to allow compensation under every circumstance. This court has no right to disregard the exceptions to payment.
When the award of compensation was originally granted in this case, the matter was uncontested. The employer consented to the payment of worker's compensation benefits and thus, under the statute, the underlying facts of this case were not exposed to the light of day. When the director of the Worker's Compensation Division became aware of facts which indicated that the appellants were not entitled to benefits under the act1, he sought to reopen the matter for a plenary rehearing pursuant to §27-12-614, W.S. 1977. The fact that the director did not intervene at an *Page 1348 earlier stage of the proceeding does not waive his right to reopen § 27-12-608, W.S. 1977. In the earlier appeal in this case,2 this court determined that the division had made a probable-cause showing sufficient to entitle the division to have the district court grant a new hearing into this matter. The pertinent statutory language is:
"* * * The petition [to reopen] must show probable cause for error in * * * the grounds on which the award was made, and may specify as a reason for reopening the case existing evidence not given in the original hearing, showing the general nature and effect of such evidence. Upon filing of a petition and the court finding that probable cause is shown thereby, the court shall stay the award, and upon reasonable notice to all parties reopen the case and set the case for a new hearing. * * *" Section 27-12-614, supra. (Bracketed material and emphasis added.)
The statute only requires the director to show the existence of evidence not given in earlier proceedings (whether or not there had been a full-fledged hearing previously) and the general effect of that evidence. Here the director did just that and, as a result, was entitled to have the case re-opened. The matter was then set for a new hearing and the statute sets no limitations on the scope of that hearing. As I see it, the exact scope of that hearing must be established by the pleadings and the evidence presented in accordance with normal rules of civil procedure. See, W.R.C.P., Rule 15(b). In my view, not only is the matter of culpable neglect implicit within the original petition of the director so as to be encompassed by the language "general effect of that evidence" but clearly became an issue early in the new hearing process.
There is no requirement that the new evidence to be introduced eventually turn out to be the same as the ground for re-opening. The statute "* * * makes no requirement of the State Treasurer [director] to show, when he filed his application, that the new evidence is true. * *" The purpose is to "let the truth be determined in a regular hearing. * * * But what is more important is the opportunity to produce his witnesses in open court and to cross-examine the witnesses of the claimant, so that the truth may be fully tested, * * *." All quotes are from Marsh v. Aljoeet al., 1930, 41 Wyo. 220, 284 P. 260. The material forming a basis for reopening is not etched in granite and the unreasonable burden placed on the State that it's either that or nothing, is not in keeping with my concept of a trial, the purpose of which is to determine the true facts and grant relief accordingly. This is within the spirit of Rule 15, W.R.C.P. When issues not raised by the pleadings — and I consider the application no more than a pleading in line with Marsh v. Aljoe, supra — are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.Jankovsky v. Halladay Motors, Wyo. 1971, 482 P.2d 129; TitleGuaranty Co. of Wyoming v. Midland Mortgage Co., Wyo. 1969,451 P.2d 798. Proceedings held in court under the Worker's Compensation Act are governed by the Wyoming Rules of Civil Procedure. Section 27-12-607, W.S. 1977.
Moreover, no objection was made at the new hearing to the effect that the matters therein presented by the director were not within the probable-cause finding on the trial court when he granted the reopening. As I see it, that issue is raised for the first time on appeal and I would not consider it in determining this case. Schaefer v. Lampert Lumber Co., Wyo. 1979,591 P.2d 1225, 1227. Though the Worker's Compensation Act is to be liberally construed, the supreme court will not disregard principles of appellate practice in so doing. In re Corey, 1948, 65 Wyo. 301, 200 P.2d 333.
Finally, the appellant acquiesced in the introduction of all evidence presented at the new hearing and had full opportunity to *Page 1349 cross-examine witnesses for the director and to present whatever evidence they so desired. The evidence is sufficient to sustain the trial court's findings that the injuries were the result of the appellant Richard Svoboda's culpable negligence, and we are not at liberty to substitute our judgment for his at this stage of the proceedings. Diamond Management Corp. v. Empire GasCorp., Wyo. 1979, 594 P.2d 964; Kvenild v. Lavoie, Wyo. 1979,594 P.2d 972; True v. Hi-Plains Elevator Machinery, Wyo. 1978,577 P.2d 991.
I would have affirmed the judgment of the district court in all respects.