concurring in part and dissenting in part.
I concur with the views of the majority in Case No. 84-64, Pacific Power and Light v. Parsons. On the basis of the record presented in that case that result is correct and proper.
While in a sense my views with respect to Case No. 84-102, State ex rel. Worker’s Compensation Division v. Parsons, may be perceived as antithetical to my joining in the affirmance in Case No. 84-64, I am compelled to dissent from the majority’s affirmance in this latter case.
The Petition to Reopen, which was filed by the State of Wyoming, alleges:
“COUNT ONE
“1. That evidence not given at the original January 26,' 1984 hearing tends to indicate that Employee-Claimant was not temporarily totally disabled pursuant to Section 27-12-402, W.S.1977, during the entire time period of July 8, 1983 through November 28, 1983.
“2. That more specifically, evidence not given at the original hearing establishes that Employee-Claimant actually performed work for pecuniary gain during the months of September and October of 1983;
“3. That additionally, evidence given at the January 26, 1984 hearing tended to establish that Employee-Claimant performed work during ‘a six week period’ to such an extent to indicate a substantial restoration of Employee-Claimant’s earning power at a gainful occupation;
“4. That as a result of the above allegations, if taken as true, there exists probable cause for error in both the amount of the February 16, 1984 award and the grounds upon which such award was made.
*232“COUNT TWO
“5. That Petitioner hereby realleges and incorporates any and all allegations contained in COUNT ONE for the purposes of this second count;
“6. That the pleadings filed in this matter indicate that Employee-Claimant had applied for temporary total disability benefits, pursuant to Section 27-12-402, W.S.1977, for the entire period of May 27, 1983 through November 30, 1983; “7. That by his own testimony, Employee-Claimant felt he was able to, and in fact did, work at his landscaping business up to 10-12 hours a day, for approximately six weeks during the period for which he applied for temporary total disability benefits;
“8. That such actions were both an attempted and constructive fraud upon this Court, the Clerk of the District Court for Sweetwater County, the Employer-Defendant, and the Wyoming Worker’s Compensation Division, such that Employee-Claimant should be denied benefits pursuant to Section 27-12-606, W.S. 1977;
“9. That as a result of the above allegations, if taken as true, there exists probable cause for error in the character of the February 16, 1984 award.
“COUNT THREE
“10. That Petitioner hereby realleges and incorporates any and all allegations contained in both COUNT ONE and COUNT TWO, for the purposes of this alternative third count;
“11. That should this Court uphold the temporary total award granted, there exists evidence not given at the original hearing which tends to indicate that Employee-Claimant was guilty of persisting in an unsanitary or injurious practice which tended to imperil or retard his recovery; more specifically, that Employee-Claimant’s work performed during both the ‘six week period’ and September and October of 1983, was in direct contravention and violation of his treating physician’s order to abstain from work activities;
“12. That such practices are injurious pursuant to Section 27-12-412, W.S.1977, and as such are grounds for a forfeiture by Employee-Claimant of any and all rights to Wyoming worker’s compensation benefits;
“13. That as a result of the above allegations, if taken as true, there exists probable cause for error in both the amount of the award and the character of the award.”
The order of the district court recites that it considered the Petition to Reopen and was aware of the testimony and evidence presented in the case and the argument of counsel on the record which covered the issues set forth in the Petition to Reopen. It indicated that it perceived the Petition to Reopen as an appeal by the employer-defendant and ordered that the Petition to Reopen be denied. This order appears to have been entered without a separate hearing on the Petition to Reopen, and consequently the allegations of the petition, for purposes of review, must be accepted as true.
Section 27-12-614, W.S.1977 (June 1983 Replacement), quoted in the majority opinion, provides that:
“ * * * The petition must show probable cause for error in the amount of the award, the character of the award, or 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. * * * »
While the majority opinion asserts that the Wyoming precedents construing this statute, Wyoming State Treasurer ex rel. Worker’s Compensation Division v. Svoboda, Wyo., 573 P.2d 417 (1978); In re Reed, Wyo., 444 P.2d 329 (1968); and Marsh v. Aljoe, 41 Wyo. 220, 284 P. 260, 261 (1930), are distinguishable, I do not perceive them as being substantially distinguishable from this ease.
*233In my judgment the allegations of the Petition to Reopen would be sufficient to demonstrate probable cause under the ratio decidendi of the cited Wyoming cases. It is noted that the order of the district court does not purport to determine the question of probable cause. It relies upon a factor, “the same being on appeal by the Employer-Defendant,” which is not material in the application of the statute. The same may be said of the majority opinion, which relies upon the presence of the Director of the Worker’s Compensation Division at the initial trial; suggests a requirement that the evidence sought to be injected was not available at the time of the original hearing; a requirement that the Worker’s Compensation Division demonstrate it was unaware of the issues before the court at the initial hearing; and specifically suggests a construction of the statutory scheme antithetical to that adopted by this court in Marsh v. Aljoe, supra. These are factors which are not material to the application of the statute. In my judgment the ruling of the district court is erroneous in the light of the stated Wyoming precedents, and must be reversed.
If the rationalization for the majority opinion is to stand, then this court should disavow and overrule the precedents which have construed the statute. I do not find that such action would be justifiable because it would have the effect, as pointed out in Marsh v. Aljoe, supra, of neutralizing the statute. Justice Blume, in writing for the court in Marsh v. Aljoe, supra, correctly noted the unique nature of the statute, the substantial interest of the State of Wyoming in such litigation, and commented upon the “right” of the State to have the case reopened.
I am sure there exists an argument that the reopening of this case is an exercise in futility. I concede that possibility but I must point out that in the absence of a hearing, and perhaps even in the absence of reopening the case to receive evidence, no one can be assured that a further proceeding would be an exercise in futility. At this juncture the allegations of the State of Wyoming manifest probable cause under our precedents, and the action of the district court in dismissing the petition without a hearing must be regarded as error. I would reverse in Case No. 84-102.