Graham v. D&K Oilfield Servs., Inc.

• Decision Date: 19 September 2017
• Docket Number: No. 115,898.,115,898.
• Citation: 404 P.3d 863
• Parties: Ray GRAHAM, Petitioner, v. D & K OILFIELD SERVICES, INC., Compsource Mutual Ins. Co., and The Workers' Compensation Commission, Respondents.
• Court: Oklahoma Supreme Court

404 P.3d 863

Ray GRAHAM, Petitioner,

v.D & K OILFIELD SERVICES, INC., Compsource Mutual Ins. Co., and The Workers' Compensation Commission, Respondents.

No. 115,898.

Supreme Court of Oklahoma.

FILED September 19, 2017

Bob Burke, Oklahoma City, OK, for Petitioner.

Peter J. Mills, McCormick, Schoenenberger & Gish, Oklahoma City, Oklahoma, for Respondents D & K Oilfield Services, Inc. and Compsource Mutual Ins. Co.

John N. Hermes & Andrew J. Morris, McAfee & Taft, Oklahoma City, Oklahoma, for Amicus Curiae the State Chamber of Oklahoma.

COMBS, C.J.:

¶ 1 The question presented to this Court is whether 85A O.S. Supp. 2013 § 61 is unconstitutional because: 1) it violates the due process rights of claimants guaranteed by U.S. Const. amend. XIV, § 1 and Okla. Const. art. 2, § 7 ; 2 ) it is a special law prohibited by Okla. Const. art. 5, 46; and 3) it fails to provide an adequate remedy for a recognized wrong, in violation of Okla. Const. art. 2, § 6. We answer in the negative. However, in light of this Court's opinion in Corbeil v. Emricks Van & Storage, 2017 OK 71, 404 P.3d 856, this cause is remanded for further proceedings consistent with this opinion and Corbeil, concerning the application of 85A O.S. Supp. 2013 § 61.

FACTS AND PROCEDURAL HISTORY

¶ 2 Petitioner Ray Graham (Graham) was employed by Respondent D & K Oilfield Services, Inc. (Employer) and sustained a left inguinal hernia

while engaged in lifting heavy objects on February 22, 2016. Graham sought compensation under the Administrative Workers' Compensation Act, timely filing a CC-Form-3 on May 9, 2016. Graham also filed a Notice of Constitutional Issues and Brief in Support, challenging the constitutionality of 85A O.S. Supp. 2013 §§ 5 & 61.¹ Graham had surgery to repair the hernia, however, he continued to have complaints and in July of 2016 he was diagnosed with a recurrent hernia, requiring a second surgery.

¶ 3 Employer admitted Graham sustained a compensable hernia

injury, paid all reasonable and necessary medical benefits, and paid Graham six weeks of temporary total disability.² On November 15, 2016, Employer filed its brief in opposition to Graham's constitutional challenge to 85A O.S. Supp. 2013 § 61. On November 23, 2016, Graham requested a contested hearing seeking additional benefits based on the argument that 85A O.S. Supp. 2013 § 61 is unconstitutional. Graham sought a finding of a longer period of temporary total disability from February 26, 2016, to September 6, 2016 (minus a deduction for the six weeks already paid), as well as a finding of permanent partial disability.

¶ 4 An Administrative Law Judge (ALJ) held a hearing concerning this matter on January 19, 2017. The ALJ accepted the parties' stipulations concerning the Commission's jurisdiction, Graham's employment status, the compensability of the injury, the reasonableness of medical treatment, and the six weeks of temporary total disability already paid by Employer. At the hearing, the parties noted that Graham had surgery for the hernia

injury twice, first to repair it, and then a second time in August of 2016 after being diagnosed with a recurrent hernia. At the time of the hearing, Graham had been released by his treating physician at maximum medical improvement.

¶ 5 At the hearing, Graham argued the unconstitutionality of 85A O.S. Supp. 2013 § 61 as grounds for a finding he was entitled to greater benefits than those permitted by that statute. When called as a witness, Graham testified he continues to suffer pain at the hernia

location despite having been released at maximum medical improvement. He further testified that he did not work from February 26, 2016, until September 6, 2016, resulting in substantial lost income.

¶ 6 The ALJ filed an Order Determining Compensability and Awarding Hernia

Benefits on January 19, 2017. The ALJ determined that Employer provided all reasonable and necessary medical treatment for Graham's hernia injury, including the two surgeries. The ALJ further determined that 85A O.S. Supp. 2013 § 61 is applicable to this cause and is constitutional as applied to Graham. The ALJ further determined that pursuant to 85A O.S. Supp. 2013 § 61, Graham was not entitled to any further benefits beyond those already received, noting:

The Legislature in its prerogative has provided a specific benefit schedule for all compensable hernia

injuries. Under our current statute, any claimant who suffers a compensable hernia is entitled to receive all reasonable and necessary medical treatment and the equivalent of six (6) weeks of temporary total disability as a hernia benefit. Absent a second hernia, or a consequential injury, there is no provision for additional compensation. The Legislature did not provide for an award of permanent partial disability for any case involving a single hernia, which has actually been the law for a long time.

Because the claimant presents only a case of a single hernia, for which he has received the statutory mandated benefits of medical treatment and 6 weeks of temporary total disability, I conclude he is not entitled to any additional compensation.

Order Determining Compensability and Awarding Hernia

Benefits, r. 55.

¶ 7 On January 23, 2017, Graham appealed to the Commission en banc, once more asserting the unconstitutionality of 85A O.S. Supp. 2013 § 61. The Commission held a hearing concerning the appeal on May 10, 2017. On March 21, 2017, the Commission filed an order affirming the decision of the ALJ on the grounds that 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 Graham filed a petition for review and a motion to retain with this Court on March 27, 2017, continuing to assert the unconstitutionality of 85A O.S. Supp. 2013 § 61. The Court retained this appeal on April 25, 2017.³ The matter 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. Graham's injury occurred on February 22, 2016. As Graham'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 excess of the statutory authority or jurisdiction of the Commission;

3. Made on unlawful procedure;

4. Affected by other error of law;

5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence;

6. Arbitrary or capricious;

7. Procured by fraud; or

8. Missing findings of fact on issues essential to the decision.

¶ 10 The issue of a statute's constitutional validity is a question of law subject to de novo review. Brown, 2017 OK 13, ¶ 10, 391 P.3d 111 ; Lee v. Bueno, 2016 OK 97, ¶ 6, 381 P.3d 736 ; Butler v. Jones ex rel., State ex rel., Okla. Dep't of Corrections, 2013 OK 105, ¶ 5, 321 P.3d 161. Under that standard, this Court assumes plenary, independent, and non-deferential authority to reexamine the lower tribunal's legal rulings. Brown, 2017 OK 13, ¶ 10, 391 P.3d 111 ; Lee, 2016 OK 97, ¶ 6, 381 P.3d 736 ; Crownover v. Keel, 2015 OK 35, ¶ 12, 357 P.3d 470.

¶ 11 There is a strong presumption which favors legislative enactments. Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 18, 148 P.3d 842 ; Barnes v. Barnes, 2005 OK 1, ¶ 5, 107 P.3d 560 ; Nelson v. Nelson, 1998 OK 10, ¶ 12, 954 P.2d 1219. The presumed constitutionality of a legislative enactment is rebutted only when the enactment is prohibited by either the Oklahoma Constitution or federal law. Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 17, 373 P.3d 1057. The party seeking a statute's invalidation as unconstitutional has the burden to show the statute is clearly, palpably, and plainly inconsistent with the Oklahoma Constitution. Lafalier v. Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶ 15, 237 P.3d 181 ; EOG Resources Marketing, Inc. v. Okla. State Bd. of Equalization, 2008 OK 95, ¶ 13, 196 P.3d 511.

III.

ANALYSIS

¶ 12 At issue in this cause is the constitutionality of a provision of the AWCA concerning compensability and benefits for hernias

. The challenged provision, 85A O.S. Supp. 2013 § 61, provides:

A. A hernia

is not a compensable injury unless the injured employee can prove by a preponderance of the evidence that it meets the definition of "compensable injury" under this act and:

1. The occurrence of the hernia followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;

2. There was severe pain in the hernial region;

3. The pain caused the employee's work to be substantially affected;

4. Notice of the occurrence was given to the employer within five (5) days thereafter; and

5. The physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician.

B. 1. Notwithstanding the provisions of Section 45 of this act, if it is determined that a hernia is a compensable injury under subsection A of this section, the injured employee shall be entitled to temporary total disability for six (6) ...