Cable Vision of Muskogee v. Tracy

• Decision Date: 12 April 1994
• Docket Number: No. 3,3
• Citation: 876 P.2d 743,1994 OK CIV APP 57
• Parties: 1994 OK CIV APP 57 CABLE VISION OF MUSKOGEE and American Manufacturers Mutual Insurance, Petitioners, v. Thomas F. TRACY and the Workers' Compensation Court, Respondents. Number 82155. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 743

876 P.2d 743

1994 OK CIV APP 57

CABLE VISION OF MUSKOGEE and American Manufacturers Mutual

Insurance, Petitioners, v. Thomas F. TRACY and the Workers' Compensation Court, Respondents.

Number 82155.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma,

Division No. 3.

April 12, 1994.

Certiorari Denied June 7, 1994.

Proceeding to review an order of a Three Judge Panel of the Workers' Compensation Court.

ORDER SUSTAINED.

Wilson T. White, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, for petitioners.

Richard A. Bell and William C. Doty, Norman, for respondents.

OPINION

GARRETT, Vice Chief Judge:

Respondent, Thomas F. Tracy (Claimant) filed his Form 3 in the Workers' Compensation Court on March 3, 1986, alleging he sustained an accidental injury arising out of and in the course of his employment with Petitioner, Cable Vision of Muskogee (Employer). He alleged he injured his back and ribs on January 10, 1986, while unloading cable from a trailer. On December 18, 1986, the trial court entered an order, finding Claimant sustained 9 per cent permanent partial disability to the body as a whole due to injury to the back and 3 per cent permanent partial disability to the body as a whole due to injury to his fractured ribs.

On August 1, 1989, Claimant filed a Form 9, motion to reopen on change of condition. Employer objected, claiming Claimant's doctor, who did not examine Claimant initially, failed to compare the previous findings on the motion to reopen. Employer also alleged Claimant had been working the past two years and there was no change of condition. On November 15, 1989, the trial court entered an order, denying the motion to reopen, finding no increase in disability as a result of the January 10, 1986, injury.

On October 27, 1992, Claimant filed another Form 9, requesting temporary disability, medical treatment, permanent partial disability compensation, future medical treatment, rehabilitation, and to reopen on a change of condition. Employer raised the defense of statute of limitations.

The trial court entered its order April 9, 1993, finding Claimant had sustained a change in physical condition for the worse as a result of the January 10, 1986 injury to the back. The court found Claimant was then 34 per cent permanently partially disabled to the body as a whole due to injury to the back with subsequent surgery, an increase of 25 per cent. The court made the finding that the claim to reopen on change of condition was not barred by the statute of limitations.

Employer appealed the order to the Court En Banc. On July 16, 1993, the three judge panel affirmed the trial court, finding the order was not against the clear weight of the evidence or contrary to law. The three judge panel vacated its order and entered another order on appeal, identical in substance, on August 2, 1993. This review proceeding followed.

The law governing reopening claims for change of condition is the law in effect at the time of the change of condition, rather than the law in effect at the time of the injury or the law in effect at the time of the original award. Wolfenbarger v. Safeway Stores, Inc., 798 P.2d 1093, 1094 (Okl.App.1990) (Cert. denied 1990). The applicable statute of limitations, as amended in 1986, is found at 85 O.S.1991 § 43(C):

C. The jurisdiction of the Court to reopen any cause upon an application based upon a change in condition shall extend for that period of time measured by the maximum number of weeks that could be awarded for the particular scheduled member where the change of condition occurred, or for three hundred (300) weeks in the case of injuries to the body or injuries not otherwise scheduled under the provisions of Section 22 of this title, and unless filed within said period of time after the date of the last order, shall be forever barred.

Employer argues that the motion to reopen, filed October 27, 1992, was untimely filed because it was filed 305 weeks after the original order was entered in 1986. Employer quotes the version of § 43 in effect before its revision in 1986. The pertinent portion of the former statute provided:

The jurisdiction of the Court to reopen any cause upon an application based upon a change in condition shall extend for the maximum period of time measured by the number of weeks for which compensation could have been awarded by the Court had the condition of claimant existed at the time original award was made thereon and unless filed within said period of time, same shall be forever barred. (Emphasis added).

Employer contends that a comparison of the two statutes clearly shows the Legislature's intent to limit, or shorten, the period for filing a motion to reopen a claim from 500 weeks to 300 weeks. It argues, in effect, that the 300 weeks must be calculated from the last order awarding compensation for permanent impairment, because a claimant could otherwise perpetuate a workers' compensation claim indefinitely by alleging a motion to reopen due to change in condition every five years.

A statute of limitation defense is not independently reviewed or considered a jurisdictional question. It is treated as a true affirmative defense, and a trial tribunal's factual determination on the issue will not be disturbed on review if reasonably supported by the evidence. Special Indem. Fund v. Choate, 847 P.2d 796, 804 (Okl.1993). The burden of proof is on the party asserting the defense to show the claim is time-barred by the applicable statute of limitations. Id.

In construing common words in a statute, we must assume the legislature intended for such words to have the same meaning as that attributed to them in ordinary and usual parlance, in the absence of a contrary...