Benning v. Pennwell Pub. Co.

• Decision Date: 18 October 1994
• Docket Number: No. 79980,79980
• Citation: 885 P.2d 652,1994 OK 113
• Parties: Jack BENNING and The Workers' Compensation Court, Petitioners, v. PENNWELL PUBLISHING CO. and Liberty Mutual Ins. Co., Respondents.
• Court: Oklahoma Supreme Court

Page 652

885 P.2d 652

1994 OK 113

Jack BENNING and The Workers' Compensation Court, Petitioners, v. PENNWELL PUBLISHING CO. and Liberty Mutual Ins. Co., Respondents.

No. 79980.

Supreme Court of Oklahoma.

Oct. 18, 1994.

As Corrected Nov. 1, 1994.

On Certiorari to the Court of Appeals, Division IV.

Claimant before the Workers' Compensation Court asserted his neck injury was related to lower-back trauma from an on-the-job accident for which he received temporary total disability. Characterizing his Form 9 plea as but a belated "amendment" to the

1988 Form 3, the employer interposed the statutory two-year time bar. The trial judge allowed the employee additional compensation, "modifying" the earlier order to include the neck injury. A three-judge panel vacated the trial judge's order, ruling that the employee's quest was time-barred. The Court of Appeals reversed the panel's decision. On certiorari previously granted

THE COURT OF APPEALS' OPINION AND THE THREE-JUDGE PANEL'S ORDER ARE VACATED; THE CLAIM IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.

Anthony M. Laizure, Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, Tulsa, for petitioners.

Paul V. McGivern Jr., Ronald E. Hignight, McGivern, Scott, Gilliard, Curthoys & Robinson, Tulsa, for respondents.

OPALA, Justice.

The single issue presented on certiorari is: Was the review panel's [panel] critical conclusion of law responsive to the dispositive issue of fact formed in the evidentiary proceeding before the trial judge of the Workers' Compensation Court? We answer in the negative. Because of the panel's failure to address the pivotal question of fact by a definite ruling susceptible of judicial interpretation, the claim must be remanded for resolution to be effected by requisite findings and conclusions.¹

I THE ANATOMY OF LITIGATION

Jack Benning's [Benning, claimant, employee or worker] eight-year employment with Pennwell Publishing Company [Pennwell or employer] ended on December 1, 1987. On March 18, 1988 Benning timely filed² Form 3³ listing an injury to his lower back caused by "repetitive lifting." In his November 8, 1988 order the trial judge ruled (after a hearing) that (1) the claimant sustained lower back injury from repeated trauma suffered on the job, (2) the last date of his exposure was December 1, 1987, (3) he remains temporarily totally disabled, (4) the claimant is entitled to continuing temporary total disability payments (up to a total of 150 weeks), and (5) a determination of permanent disability must be deferred.

On October 3, 1991 Benning filed Form 9.⁴ He sought medical treatment upon the alleged recurrence of his healing period and temporary total disability brought about by a change of condition, i.e., a neck (or cervical) injury⁵ that manifested itself after the claimant's last prior award--November 8, 1988.⁶ According to the claimant he first advised The employer appealed, arguing alternatively before the review panel that Benning's October 3, 1991 Form 9 quest was barred (1) because his cervical injury stems from the finally-settled 1985 back injury¹⁰ or (2) because the claimant, who became aware of his neck problems during the two-year period for filing a claim, failed to amend his Form 3 before that interval had expired.¹¹

Dr. C of his neck problems⁷ in 1989 but did not begin to receive treatment to the cervical area until 1991.⁸ In July 1991 Benning underwent a bone fusion to correct a herniated disc in his neck. Following a February 6, 1992 hearing the trial judge ruled that the cervical complaint "relates back" to the 1987 lower back injury.⁹ This finding formed the evidentiary foundation for a § 28 proceeding.

By its July 6, 1992 decision the panel vacated the trial judge's order, ruling that the neck-injury claim was "barred" by limitations without specifying whether it applied the two-year statute for filing an original claim ( § 43 A) or that which deals with § 28 reopening claims ( § 43 C). The panel's order is devoid of any specific findings of fact addressing Benning's quest for relief for his neck injury. Claimant then sought appellate review. Vacating the panel's decision the Court of Appeals held that the trial judge did not abuse his discretion in allowing the neck injury to be added. The appellate court applied the relation-back doctrine to conclude the Form 3 amendment was timely. We granted certiorari and now vacate the Court of Appeals' decision and the panel's order, remanding the claim for further proceedings not inconsistent with today's pronouncement.

II

THE STANDARD OF REVIEW

While the panel's review of the trial tribunal's findings is governed by a clear-weight-of-the-evidence test,¹² this court, when examining that tribunal's factual resolutions, applies the any-competent-evidence standard.¹³ If supported by competent evidence,

the panel's findings may not be disturbed on review.¹⁴

III

WHERE THE PANEL'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

ARE TOO INDEFINITE AND UNCERTAIN FOR JUDICIAL INTERPRETATION

OR ARE UNRESPONSIVE TO THE ISSUES FORMED IN THE HEARINGS,

THEY WILL BE VACATED FOR FURTHER PROCEEDINGS

The Workers' Compensation Court is required to make specific findings of the ultimate facts responsive to the issues formed by the evidence as well as conclusions of law upon which its order is to be rested.¹⁵ When these elements are not present in a panel's order or are too vague and uncertain for judicial interpretation, we will not hypothesize about the evidence upon which the trial tribunal may have relied to arrive at its decision.¹⁶

Here, the review panel failed to make any factual finding concerning the critical nexus, if any there was, of Benning's after-manifested pathology in the cervical spine either to (a) his earlier, finally settled 1985 back injury or to (b) his 1987 lower-back accident and, if the latter apply, then to the recurrence of the healing period. The panel's order is facially reflective of the confusion introduced into the decisional process by the employer's specious argument that the claimant can have no relief because his Form 3 would have to undergo an untimely amendment. This, of course, gave incorrect primacy to a question of law, where in reality that primacy was commanded by a question of fact--i.e., whether, since the last prior order claimant's condition had undergone a change causally connected to the on-the-job accident for which his compensation claim was brought. In short, the critical issue dispositive of the § 28 proceeding in this case was not the amendability of the claimant's Form 3 but the sufficiency of his evidence to support a § 28 reopening. The panel's rejection of the trial judge's findings of fact [that claimant underwent a compensable change of condition ] and its simultaneous declaration that the § 28 quest is time-barred demonstrates the confused order in which the issues to be resolved were placed.

IV

THE APPLICABLE STATUTE OF LIMITATION

It is the employer's argument that a claimant, who has filed Form 3 for an on-the-job accident but later undergoes a changed condition attributable to that injury, must amend Form 3 within the two-year statutory period or be forever barred from compensation. If this analysis were legally correct, it would render nugatory all the provisions of § 43 C which plainly authorize a reopening claim whenever there is a changed condition which (a) unfolds itself to the expert after the last prior award and (b) increases disability or brings about the recurrence of claimant's healing period. Section 43 C¹⁷ provides a longer limitation period for reopening the claim on changed conditions than that available to the claimant under § 43 A.¹⁸ It is plain that the former applies to reopening Claimant's evidence is consistent solely with a § 28 reopening theory.²⁰ If Benning succeeds in ascribing the after-manifested pathology of his cervical spine to the 1987 lower-back injury,²¹ his Form 9 plea is to be dealt with as a § 28 quest for additional compensation.²² The panel's specific finding of fact on this threshold issue is imperative. If it be resolved in favor of the claimant, the timeliness of the reopening claim under § 43 C might be in issue. If it be found that the facts adduced do not support a compensable change of condition since the last prior order, there will be no need for a legal conclusion on the limitations issue.

                claims, while the latter governs solely the original claim's filing.   To be timely under § 43 C, an employee's § 28 reopening claim must be filed within three hundred weeks19 after the last prior order
                

Although the witnesses do not agree on the exact date Benning first reported his cervical injury, it is clear that the need for medical attention to his neck first became apparent after the last award of 1988.²³ When an after-manifested²⁴ condition is shown to the tribunal's satisfaction to be medically related to an on-the-job injury and increases disability or triggers recurrence of the healing period, it affords a tenable legal basis for additional relief.²⁵ Here, compensability for the claimant's changed condition does not depend on the timeliness of a Form 3 amendment but rather upon the timeliness of a § 28 reopening claim measured by § 43 C.

VI

SUMMARY

Because the panel's conclusion of law is not responsive to the primary, dispositive and controlling issue of fact developed on Benning's Form 9 quest before the trial judge, the claim must be remanded for re-examination into the presence of a causal nexus between Benning's claimed neck condition and his two previous back injuries. The panel may, in its discretion, either (1) re-canvass the transcribed evidence to determine if it would support a finding that the claimant's after-manifested cervical pathology does relate to his 1987 accident and if the changed condition did occasion the claimed recurrence of healing period; if its answer be in the affirmative, the panel should then measure...