I must respectfully dissent from the majority's reversal of the hearing examiner's award of worker's compensation benefits in this case. The hearing examiner's determination comports with the traditions and purposes underlying the State of Wyoming's system of "job insurance" as that system has evolved over the years while the majority decision in this case does not. The majority's current "refinding" of the facts in this case and its disinclination to accept the hearing examiner's correct application of the "on-premises" presumption disembody Wyoming's "on-the-job" insurance only somewhat less than Henry VIII's action against Anne Boleyn. Nary an "appellatectomy" of this worker's benefits is indicated much less the evisceration of a longstanding rule of worker's compensation law. *Page 870
I would affirm the hearing examiner's award because the facts merit the application of the legal presumption that the injury was work-related and thus compensable. Archuleta v. CarbonCounty School District No. 1, 787 P.2d 91 (Wyo. 1990). Alternatively, this Court should affirm the hearing examiner's decision by recognizing a derivative presumption whose simplicity and logic would compel affirmance of the hearing examiner's award in this case and would also be instrumental in the disposition of future like appeals.
At a fact-finding hearing held in Sundance, Howard O. Haagensen was referred to as "Swede." If it please, I shall do likewise. At the time of his injury, Swede was a man in his late fifties who worked as a clerk and cook at Nelson's Oil and Gas. He was given to stay over on the work premises for periods of time following the completion of his midnight-ending shift to rest his "weary legs," to share humor, and to generally provide camaraderie and support to the graveyard shifters. Whether "on clock" or not, Swede was the type of guy who gave old-fashioned, Wyoming-type support to his fellows at work. At the hearing, Laraya Royer, one of Swede's co-workers, warmly related to the fact finder: "I'm tired after we get off work so Swede stays with me and we have coffee and talk until I can get woken up enough to drive home." This is proof that it was a common practice for employees to linger after work in support of one another — certainly benefitting employment purposes.
Disaffirming the award, the majority opinion relies on isolated comments and vignettes in the testimony which emphasize thequantity of the stay — rather than also analyzing thecharacter of it and its quality. The "reasonableness" of the stay is not merely a matter of marshalling ticks on a clock. We must delve deeper. Some of the evidence is subtle, but a careful analysis of the record reveals very substantial facts which, together with reasonable inferences, establish the existence of the presumption and serve as the factual predicate for the hearing examiner to apply it to this case. Accordingly, it is necessary to briefly allude to the record evidence which is unelucidated in the majority opinion and to highlight certain facts discussed in the majority opinion but whose significance went unheeded. Such a review will illuminate the sound foundation for an award of benefits and ample cause for affirmance on appeal.
The importance of Swede extending a helping hand to his fellow late shifters and the significance of the unpaid services thereby rendered to his employment seem to have escaped the majority's attention. Swede's own words bespeak an air of mere chivalry: "Oh, maybe sometimes if the lady has to go out and bag pumps or something, we'll watch the cash register in case somebody came in." In fact, this testimony proves much more; namely, that Swede actually engaged directly in a work activity on the premises after he punched out that night. Moreover, if, while "watch[ing] the cash register," Swede had been killed in a holdup, he would be just as dead a clerk as any paid employee serving in that capacity. Indeed, the majority fails to credit Swede with the increased security that his very presence adds to the premises and the attendant reassurance which it brings to solo-staffing female convenience store clerks and safety-conscious employers alike. Doubtless, these tangible, as well as esoteric, factors involving Swede's post-shift presence at the store influenced the fact finder who is the best equipped to assess their import and reasonableness — similar to a jury assessing a personal injury case.
The reasonableness of the post-shift time on the premises, augmented by specifically found facts and circumstances, demonstrates that Swede was there for his employer and co-employees. Whether in application of the "on-premises" presumption or in the construction of factual findings independent of that evidentiary rule, a uniquely fact intensive environment is created such that the weighing of the two-sides of the scale properly should be left with the on-site trier of fact.Hillard v. Marshall, 888 P.2d 1255, 1260 (Wyo. 1995). The job insurance system, which was designed to be there for Swede, unfortunately dissipates here in the wash of two nonfact-finding appellate tribunals. This Court should not mucky pup with the fact-finding province in this case.
The undisputed facts are: Swede was injured while leaving work through a clearly *Page 871 marked employee exit door where a defective condition awaited him which had remained unchanged and unremedied from the time he punched out until the time he left the premises. He remained on the work site continuously during that interval. Ms. Royer, the beneficiary of Swede's largess, punched out with Swede and left approximately one-half hour before Swede. Query: Would her stay be deemed "reasonable" under the majority opinion which finds Swede's stay to be unreasonable? Does one-half hour turn a reasonable stay into an unreasonable one? What about fifteen minutes, seventeen minutes, or thirty-eight minutes? The point is: Whether reasonableness is considered strictly a time construct or a mixed construct of time and activity, isn't this all best left for the trier of fact? Instead of conducting an adhoc appellate review of reasonableness, is it not a far better approach to affirm this case and augment the premises presumption rule with the following renaissance holding: Where an employee, who stays over on the work premises following a work shift in continuous and uninterrupted furtherance of the employer's interests and with the employer's knowledge, suffers an injury due to a defect on the premises which was in existence at the time the employee's normal work shift ended and remained unchanged and unremedied during the period of staying over, the period of staying over does not affect the compensability of the injury. Such a rule would, as worker's compensation intended, focus on the condition and safety associated with the premises as the object of the "on-the-job" query rather than obsessing on the hour of day on the punch clock or analyzing the post-shift motivations of well intended workers in carryover service to their employer's interests.
This is to say nothing of the adverse impact of the majority's decision between and among co-employees, inter sese. The Wyoming work place should be a fair place. Being "at work" should imply being at a place that is safe, and that, when properly there, any worker should receive the benefits of the employment relationship which are available to all employees on the work premises. Any result which has the effect of discriminating between and among on-premises employees whose presence advances the employment enterprise constitutes an invidious serendipity which ill-befits "The Equality State."
This case calls to mind the Latin maxim, ratio legis est animalegis, "[t]he reason of law is the soul of law." BLACK'S LAW DICTIONARY 1136 (5th ed. 1979). Why should a worker be denied the benefits of a system designed to promote the safety of the work place when the same premises condition would have caused the injury three minutes or three hours after the shift ended? Arepremises or people paramount under the fabric of our job insurance, employee-employer coexistence system in Wyoming? Finally, why should this Court arbitrate over ticks of the clock? The reason of the majority opinion is lost on me, but the soul of the state-administered pact between worker and employer lies housed in a safe work place for workers and the preservation of compensation for our injured workers.
An appellate dissection of the facts which severs this case from the on-premises coverage presumption impales this rule of law and deals a disharmonious blow to the symbiotic employer-employee relationship. This case cries out for reinstatement of the original factual findings as regards Swede and for the benefit of the efficient administration of the justice system. The district court's reversal of the award of benefits should be overturned, and the benefits properly due Swede should be restored.