Controls Components, Ltd. v. Weaver, 109,522.

• Decision Date: 05 February 2013
• Docket Number: No. 109,522.,109,522.
• Citation: 301 P.3d 405
• Parties: CONTROLS COMPONENTS, LTD. and Murphy Industries, LLC, Petitioners, v. Shelia M. WEAVER and The Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

301 P.3d 405

CONTROLS COMPONENTS, LTD. and Murphy Industries, LLC, Petitioners,

v.Shelia M. WEAVER and The Workers' Compensation Court, Respondents.

No. 109,522.

Supreme Court of Oklahoma.

Feb. 5, 2013.

PROCEEDING TO REVIEW AN ORDER OF A THREE–JUDGE PANEL OF THE WORKERS' COMPENSATION COURT

¶ 0 Claimant filed a claim in the Workers' Compensation Court for injury to her left arm with psychological overlay. The trial court and three-judge panel found Claimant was permanently and totally disabled. On appeal, the Court of Civil Appeals vacated the Workers' Compensation Court's order, finding it was against the clear weight of the evidence. This Court previously granted certiorari.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I; COURT OF CIVIL APPEALS' OPINION IS VACATED; WORKERS' COMPENSATION COURT'S ORDER IS SUSTAINED AND REMANDED FOR FURTHER PROCEEDINGS

Chad R. Whitten, Cynthia J. Braly, Jenks, Oklahoma, for Petitioner,

Gus Farrar, Tulsa, Oklahoma, for Respondents.

OPINION

WATT, J.:

¶ 1 Respondent Shelia M. Weaver (Claimant) seeks certiorari review of the decision of the Court of Civil Appeals' (COCA) opinion which vacated her award of permanent total disability (PTD). We granted certiorari to consider whether COCA erred when it used the “clear weight of the evidence” standard of review in Claimant's appeal. We answer in the affirmative and reverse, based on our recent holding in Williams Companies, Inc. v. Kristy Dunkelgod and The Workers' Compensation Court, 2012 OK 96, 295 P.3d 1107.¹

¶ 2 Claimant sustained an injury which arose out of and in the course of her employment with Petitioners, Controls Components, Ltd. and Murphy Industries, LLC, (collectively, Employer) on May 13, 2005.² Despite disputed evidence presented by Employer, the trial court found Claimant was permanently totally disabled due to her injury of reflex sympathetic dystrophy to her left arm and psychological overlay. The three judge panel affirmed. However, on appeal, COCA held “[t]he finding that Weaver is PTD is against the clear weight of the evidence. We vacate and remand for determination of PPD.” COCA relied on 85 O.S.2011 § 340(D) which provides:

D. The order, decision or award of the Court shall be final and conclusive upon all questions within its jurisdiction between the parties, unless, within twenty (20) days after a copy of such order, decision or award has been sent by the Administrator to the parties affected, an action is commenced in the Supreme Court, to review such order, decision or award ... After the effective date of this act, regardless of the date of injury, the Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds:

...

4. The order or award was against the clear weight of the evidence. [emphasis added].

¶ 3 We held in Dunkelgod that the date of the injury determines the standard of review to be used on appeal. See Dunkelgod, supra, 2012 OK 96, ¶ 18:

The standard of review applicable to a workers' compensation appeal is that which is in effect when the claim accrues. It is determined as of the date of injury and is a substantive right which remains unaffected by later-enacted legislation, despite statutory language to the contrary. See Dunlap,³Nomac,⁴ supra; Okla. Const., Art. 5, §§ 52, 54.

¶ 4 Because Claimant's injury occurred on May 13, 2005, prior to the effective date of the act, August 26, 2011, COCA erred in using the “clear weight of the evidence” standard to reverse the PTD award. COCA should have reviewed the award under the “any competent evidence” standard which was in effect at the time of Claimant's injury.⁵ Because we find competent evidence supports the PTD award, we reverse and remand to the Workers' Compensation Court for further proceedings.

¶ 5 COURT OF CIVIL APPEALS' OPINION IS VACATED; WORKERS' COMPENSATION COURT'S ORDER IS SUSTAINED AND REMANDED FOR FURTHER PROCEEDINGS

COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, COMBS, JJ., concur.

TAYLOR, GURICH, JJ., concur by reason of stare decisis.

1. Rehearing denied January 23, 2013.

2. Claimant was employed as a “punch press operator.” Her injury occurred while she was carrying a box of segments, she tripped on the leg of a cart and struck her left arm on a lift. As a result of the accident, Claimant's physician placed a permanent lifting restriction on her of five pounds when she uses her left arm. Dr. Bartlow, a vocational rehabilitation counselor and licensed professional counselor, took a medical history and reviewed her medical records. He opined she is classified in the category of “less than sedentary work classification” which has a ten pound minimum lifting restriction, as “established through the Department of Labor, the Dictionary of Occupational Titles, Department of Veteran Affairs, census bureau even has those statistics and well recognized by the state vocational rehabilitation agencies and professional organizations and the Social Security Administration.” He gave her 14 different tests to measure her aptitude and dexterity and psychological tests, as well. The psychological testing indicated severe depression with thoughts of suicide. He stated his opinion is “that Shelia Marie Weaver is 100% economically disabled. She is not a candidate for vocational rehabilitation. She has sustained a total loss of earning capacity in her present and current physical and mental state.”

Another doctor who testified on her behalf, Dr. Trinidad, assessed her disability as 45% PPD to her left arm and 15% PPD from psychological overlay of depression because of her injury. However, he opined that because she is unable to be placed in the active work force, she is considered 100% PTD on an economic basis based on the...