Elias v. City of Tulsa

Decision Date17 September 2021
Docket NumberCase No. 119,526
Citation512 P.3d 385
Parties Jeffrey ELIAS, Petitioner, v. CITY OF TULSA and Own Risk #10435, and The Workers' Compensation Commission, Respondents.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Michael R. Green, LAW OFFICE OF MICHAEL R. GREEN, Tulsa, Oklahoma, For Petitioner/Appellant,

Conner E. Brittingham, Cyrus Nathaniel Lawyer, LATHAM, STEELE, LEHMAN, KEELE, RATCLIFF, FREIJE & CARTER, P.C., Tulsa, Oklahoma, For Respondents/Appellees.


¶1 Jeff Elias ("Appellant") seeks review of an Order Affirming Decision of Administrative Law Judge by the Oklahoma Workers' Compensation Commission En Banc ("Commission"). The issues here are: (1) whether the Order denying Appellant monetary benefits was based on the appropriate interpretation of 85A O.S. § 46H; and (2) whether § 46H violates the fundamental protections of due process, Okla. Const., art. II, § 6, or represents a special law, prohibited by Okla. Const. art. 5, § 59. We base our holding on the fundamental principle that it is not the role of the judiciary to weigh the wisdom of legislation, as such decisions are the proper province of the Legislature—regardless of the harshness of the outcome. For the reasons stated, we answer the questions presented in the negative and affirm the decision of the Commission.


¶2 The relevant factual background is straightforward and essentially uncontested. Elias sought workers' compensation benefits for cumulative trauma binaural hearing loss stemming from his twenty-six (26) years on the job as a Tulsa Police Officer, with a date of last exposure of November 30, 2017.1 He sought permanent partial disability benefits ("PPD") and continuing medical maintenance and repair of hearing aids. In response, the Respondent admitted a compensable work-related injury as to the ears, but asserted that Elias was ineligible for a PPD award pursuant to 85A O.S. § 46(H).2

¶3 A hearing was conducted before an ALJ on August 18, 2020. During the hearing, Elias requested a PPD award for his ears, since he has never received an award for his ears or, alternatively, the assignment of a percentage of disability for his compensable work-related injury to his ears. An Order was entered on August 26, 2020, in which the ALJ determined that Elias had sustained a 38% PPD to the ears (hearing loss) over and above a preexisting 13.8% disability. The ALJ rejected the Respondent's assertion that the award for binaural hearing loss should be converted to a whole person impairment, citing § 46A(16). Significantly, the ALJ determined that the 38% PPD award (equating to 125.4 weeks) to the ears was not payable to Elias based on the cumulative cap set forth in § 46H, writing, in part, that: "the sum total of all combined PPD awards cannot exceed 350 weeks pursuant to Title 85A O.S. § 46(H)", and that "Claimant is ineligible to receive a monetary award for PPD based on Title 85A O.S. § 46(H)." As the evidentiary support for application of the limitation in § 46H, the ALJ identified six prior awards of PPD that Elias had received, and determined that "[t]he sum total of" Elias' prior awards of PPD equals 698.74 weeks of PPD, exceeding the § 46H limit of three hundred fifty weeks.3

¶4 The ALJ's Order specifically delineated the award to Elias, as follows:

1. That on November 30, 2017, Claimant sustained compensable cumulative trauma injury to his BILATERAL EARS.
3. That as a result of said injury, Claimant has sustained a 38% (125.4 weeks) permanent partial disability to the BILATERAL EARS over and above a preexisting 13.8% disability.
4. That the award is not payable to Claimant pursuant to Title 85A O.S. § 46(H).
5. Claimant is awarded continuing medical maintenance in the form of maintenance, repair and replacement of hearing aids.

¶5 Elias appealed the case to the Workers' Compensation Commission En Banc, which conducted a hearing on August 18, 2020. By Order dated April 7, 2021, the Commission affirmed the ALJ's decision. This appeal followed.


¶9 An appellate court "may modify, reverse, remand for rehearing, or set aside the judgment or award" of the Workers' Compensation Commission "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.

85A O.S. § 78C.

¶10 Elias has alleged legal error with respect to statutory interpretation and constitutional claims. The issues of a statute's constitutional validity, together with its interpretation and application, are questions of law subject to de novo review. Brown v. Claims Management. Resources Inc. , 2017 OK 13, ¶ 10, 391 P.3d 111, 115 ; Gillispie v. Estes Express Lines, Inc., 2015 OK CIV APP 93, ¶ 18, 361 P.3d 543, 549.


¶11 Elias has asserted two propositions of error in the Exhibit "C" of his Amended Petition in Error: (1) whether the Order denying Elias monetary benefits was based on a proper interpretation of 85A O.S. § 46H; and (2) whether § 46H violates the fundamental protections of due process, Okla. Const., art. II, § 6, and represents a special law, prohibited by Okla. Const. art. 5, § 59. We will address each issue in turn.

The Commission Properly Interpreted and Applied § 46H's Cumulative PPD Cap

¶12 The proper meaning of § 46H is at the core of this appeal. It is our duty to give meaning and effect to the words chosen by the Legislature, unless to do so would result in an absurdity. See Tate v. Browning-Ferris, Inc. , 1992 OK 72, ¶ 15, 833 P.2d 1218, 1228 ("To ascertain legislative intent we look to the language of the pertinent statute. Statutory words are to be given their ordinary sense except when a contrary intention plainly appears.") (citations omitted); Hill v. Board of Education, District I-009, Jones, Oklahoma , 1997 OK 111, ¶ 5, 944 P.2d 930, 931 ("The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the Legislature's intention and purpose as expressed in a statute.") (citations omitted). We begin our analysis by looking to the language of the pertinent statutes because "it is our duty to apply the law as written." Greenwood Centre, Ltd. v. Nightingale , 2020 OK 59, ¶ 3, 465 P.3d 1269, 1270 (Rowe, J., concurring) (citations omitted). Consequently, in the absence of an ambiguity, the text of a statute is the sole legitimate expression of legislative intent.

¶13 The text of § 46H, is as follows:

The sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund, shall not exceed three hundred fifty (350) weeks.

¶14 With the enactment of § 46H, the maximum number of PPD weeks that can be awarded over the course of a claimant's lifetime is 350 weeks (rather than the 520 weeks provided under the prior law). Elias urges the Court to apply the rule of statutory construction that considers the history of the various prior versions of § 46H to ascertain legislative intent. Appellant's Br.-in-chief at 9; Appellant's Reply Br. at 4-5; see also McNeill v. City of Tulsa , 1998 OK 2, ¶ 9, 953 P.2d 329, 332 (where the Court stated, in part, that where "judicial interpretation becomes necessary to ... ascertain the true meaning of the particular words in accord with the legislative intent ... it is proper to consider the history and consistent purpose of the legislation on the subject and to discover the policy of the Legislature as disclosed by the course of the legislation"). However, we find the language in § 46H to be plain and unambiguous, and decline Elias' use of legislative history to interpret § 46H. On the other hand, we find it useful to note that the text of § 46H was taken in substance from 85 O.S. 2011, § 333 (which was in effect at the time the AWCA was adopted):

The sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund, shall not exceed five hundred twenty (520) weeks , except for awards for amputations and disability to the parts of the body for which surgery was received in the latest injury.

(emphasis added). In light of the fact that § 46H significantly reflects the law that was in effect at the time the AWCA was enacted (with a concomitant reduction of 520 weeks to 350 weeks), it is difficult to conclude that any further review of prior statutory versions of this language would aid the Court in a resolution of this case.4

¶15 Elias also urges that a conflict exists between the language in § 45C(6) and § 46H. Section 45C(6), provides, in part, that "[t]he fact that an employee has suffered previous disability or received compensation therefor shall not preclude the employee from compensation for a later accidental personal injury or occupational disease." Based on this alleged conflict, Elias appears to argue that an ambiguity exists, arguably justifying the use of another rule of statutory construction. See Keating v. Edmondson , 2001 OK 110, ¶ 8, 37 P.3d 882, 886 ("Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed."). In this case, however, the use of the phrase "shall not preclude" (in § 45C(6)) does not create a conflict or ambiguity with § 46H's phrase "shall not exceed." The use of these words demonstrates the usefulness of the canon known as "expressio unius est exclusio alterius ," Greenberg v. Wolfberg , 1994 OK 147, ¶ 24, 890 P.2d 895, 906, or the "rule that the mention of one thing in a statute implies exclusion of something else," OCPA Impact, Inc. v. Sheehan , 2016 OK 84, ¶ 6, 377 P.3d 138, 146 (Edmondson, J., concurring in part and dissenting in part)....

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