404 P.3d 856 (Okla. 2017), 115672, Corbeil v. Emricks Van & Storage

Docket Nº:115672
Citation:404 P.3d 856, 2017 OK 71
Opinion Judge:COMBS, C.J.:
Party Name:LYLE S. CORBEIL, Petitioner, v. EMRICKS VAN & STORAGE, GUARANTEE INSURANCE, and THE WORKERS' COMPENSATION COMMISSION OF THE STATE OF OKLAHOMA, Respondents
Attorney:Charles Simons and Katie Samples, Ryan Bisher Ryan Phillips & Simons, Oklahoma City, Oklahoma, for Petitioner. Bob Burke, Oklahoma City, Oklahoma, for Petitioner. Donald A. Bullard and Terri J. Phillips, Bullard & Associates, P.C., Oklahoma City, Oklahoma, for Respondents.
Judge Panel:COMBS, C.J. ALL JUSTICES CONCUR.
Case Date:September 18, 2017
Court:Supreme Court of Oklahoma
 
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Page 856

404 P.3d 856 (Okla. 2017)

2017 OK 71

LYLE S. CORBEIL, Petitioner,

v.

EMRICKS VAN & STORAGE, GUARANTEE INSURANCE, and THE WORKERS' COMPENSATION COMMISSION OF THE STATE OF OKLAHOMA, Respondents

No. 115672

Supreme Court of Oklahoma

September 18, 2017

As Corrected September 19, 2017.

ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION.

Graham v. D & K Oilfield Servs., 2017 OK 72, (Okla., Sept. 18, 2017)

Charles Simons and Katie Samples, Ryan Bisher Ryan Phillips & Simons, Oklahoma City, Oklahoma, for Petitioner.

Bob Burke, Oklahoma City, Oklahoma, for Petitioner.

Donald A. Bullard and Terri J. Phillips, Bullard & Associates, P.C., Oklahoma City, Oklahoma, for Respondents.

COMBS, C.J. ALL JUSTICES CONCUR.

OPINION

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[¶0] Workers' compensation claimant, who suffered bilateral inguinal hernias at work, filed for a contested hearing on the issue of temporary total disability. The administrative law judge determined that claimant was limited to six weeks of temporary total disability, despite claimant's contention that he suffered two hernias and should be eligible for twelve weeks total, six for each hernia he suffered. Claimant appealed to the Workers' Compensation Commission. The Workers' Compensation Commission, sitting en banc, affirmed. Claimant appealed, and this matter was retained and made a companion case to another cause concerning the same statutory provision.

COMBS, C.J.:

[¶1] The question presented to this Court is whether the hernia provision of the Administrative Workers' Compensation Act (AWCA), 85A O.S.Supp. 2013 § 61, permits an award of up to six weeks of temporary total disability (TTD) for each hernia suffered by a claimant, regardless of whether the hernias occurred, or were repaired, simultaneously. We hold that it does.

FACTS AND PROCEDURAL HISTORY

[¶2] Petitioner Lyle S. Corbeil (Corbeil) suffered an injury on July 25, 2015, while employed with Respondent Emricks Van & Storage (Employer). Corbeil alleged he had been engaged in strenuous lifting, and noticed pain and swelling on his right side the following day. After reporting his injury, Corbeil was sent to McBride clinic where he was initially diagnosed with a right inguinal hernia. This diagnosis is referred to in Corbeil's First Notice of Claim for Compensation. Corbeil requested medical care and TTD benefits on September 9, 2015. On the same date, Employer initially denied the injury was compensable. Corbeil requested a contested hearing. Prior to the hearing, Employer accepted compensability. Employer provided reasonable and necessary medical treatment to Corbeil and paid out six (6) weeks of TTD benefits from July 29, 2015 to September 8, 2015, at a rate of $571.55 per week.

[¶3] Eventually, Corbeil's diagnosis was changed from a right inguinal hernia to bilateral inguinal hernias, after a left inguinal hernia was found on December 8, 2015. Surgery was performed on Corbeil to repair the bilateral inguinal hernias on February 2, 2016, after what Corbeil alleges to be a significant delay due to Employer's failure to timely authorize surgery. Corbeil asserts he was not released back to work until March 8, 2016, meaning he was unable to work due to his injury for a period of thirty-one (31) weeks and six (6) days. Corbeil requested an additional period of TTD benefits from Employer, which Employer denied.

[¶4] Corbeil sought a contested hearing on the sole issue of whether he was entitled to an additional six (6) weeks of TTD due to suffering two hernias, pursuant to 85A O.S.Supp. 2013 § 61(B)(1). Employer contended Corbeil had received the maximum benefits permitted by the statute. The parties proceeded to a hearing before an administrative law judge (ALJ) on July 18, 2016. The parties stipulated to the following: 1) the jurisdiction of the Workers' Compensation Commission (WCC); 2) Corbeil's employment status; 3) Employer's insurance coverage; 4) Corbeil sustained a compensable injury in the form of bilateral inguinal hernias as a result of a single incident occurring in the course and scope of employment on July 25, 2015; 5) Corbeil timely filed a claim for compensation and timely notified Employer of the injury; 6) Employer designated a physician for Corbeil; 7) the amount and payment of TTD and permanent partial disability benefits to date.

[¶5] At the hearing, Corbeil argued that changes in the provision concerning hernias enacted as part of the AWCA, codified at 85A O.S.Supp. 2013 § 61, support an interpretation that the triggering event for the award of benefits has changed from " an injury resulting in hernia" to " a hernia" . Corbeil further asserted that the TTD limitation provided in 85A O.S.Supp. 2013 § 61 applies to " a hernia", and because he suffered two hernias, he is entitled to a second six-week period of TTD. Relying on older caselaw

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from before the enactment of 85A O.S.Supp. 2013 § 61, Employer argued that a bilateral hernia constituted a single compensable injury.

[¶6] The ALJ found the changes in 85A O.S.Supp. 2013 § 61 to be a distinction without a difference. Specifically, the ALJ determined that Corbeil's bilateral hernias were caused by the same accident and surgically repaired at the same time, and so pursuant to 85A O.S.Supp. 2013 § 61 Corbeil was limited to a maximum of six (6) weeks of TTD.

[¶7] Corbeil appealed on September 6, 2016, and requested review by the Commission en banc. The Commission held a hearing on December 15, 2016. On December 16, 2016, the Commission affirmed the decision of the ALJ, determining it was supported by a preponderance of the credible evidence and correctly applied the law and, therefore, was neither against the clear weight of the evidence, nor contrary to law.

[¶8] Corbeil initially sought review in this Court on January 5, 2017.1 On April 10, 2017, Corbeil filed a motion to retain and combine this cause with another pending case.2 On April 25, 2017, this Court granted Corbeil's motion to retain and made this cause a companion case with No. 115,898. The cause was assigned to this office on April 27, 2017.

II

.

STANDARD OF REVIEW

[¶9] The law in effect at the time of the injury controls both the award of benefits and the appellate standard of review where workers' compensation is concerned. Brown v. Claims Mgmt. Resources, Inc., 2017 OK 13, ¶ 9, 391 P.3d 111; Holliman v. Twister Drilling Co., 2016 OK 82, ¶ 5, 377 P.3d 133; Williams Co., Inc. v. Dunkelgod, 2012 OK 96, ¶ 14, 295 P.3d 1107. Corbeil's injury occurred on July 25, 2015. As Corbeil's injury occurred after the effective date of the Administrative Workers' Compensation Act (AWCA), 85A O.S.Supp. 2013 § § 1-125, appellate review is governed by 85A O.S.Supp. 2013 § 78, which provides in pertinent part: C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties. Any judgment, decision or award made by an administrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was:

1. In violation of constitutional provisions;

2. In...

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