Harvey v. Auto Plus of Woodward

• Decision Date: 13 September 2012
• Docket Number: Nos. 109,803,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,109,805.,s. 109,803
• Citation: 287 P.3d 410,2012 OK CIV APP 92
• Parties: Jeffery Blaine HARVEY, Petitioner/Counter–Respondent, v. AUTO PLUS OF WOODWARD, Acadia Insurance Company, and the Oklahoma Workers' Compensation Court, Respondents/Counter–Petitioners.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

287 P.3d 410
2012 OK CIV APP 92

Jeffery Blaine HARVEY, Petitioner/Counter–Respondent,
v.
AUTO PLUS OF WOODWARD, Acadia Insurance Company, and the Oklahoma Workers' Compensation Court, Respondents/Counter–Petitioners.

Nos. 109,803, 109,805.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma,
Division No. 1.

Sept. 13, 2012.

[287 P.3d 412]

Proceeding to Review an Order of a Three–Judge Panel of the Workers' Compensation Court.
SUSTAINED.
Daniel J. Talbot, Halley, Talbot & Smithton, Oklahoma City, Oklahoma, for Petitioner/Counter–Respondent.

Jerrod Geiger, Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Respondent/Counter–Petitioner.

KENNETH L. BUETTNER, Presiding Judge.

¶ 1 Petitioner/Counter–Respondent Jeffery Blaine Harvey (Claimant) appeals an order of a three-judge panel of the Workers' Compensation Court affirming the trial court's order. Claimant asserts that Respondents/Counter–Petitioners Auto Plus of Woodward and Acadia Insurance Company (collectively, Employer) waived a defense based on 85 O.S.Supp.2010 § 11(B)(5),¹ because it was not specifically pleaded in a Form 10. Employer counter-appeals and argues that the finding of compensable injury is against the clear weight of the evidence because Claimant was injuriously exposed to the cumulative trauma for a period of more than ninety (90) days in his subsequent employment. We hold that the § 11(B)(5) defense was not waived, and the finding of compensable injury was not against the clear weight of the evidence. The order of the three-judge panel is SUSTAINED.

FACTS

¶ 2 Claimant worked for Employer for nine years installing car windows. Claimant filed a Form 3 April 2, 2010, alleging cumulative trauma injuries to both hands, both arms, both shoulders, and spine from pounding windows with his hands and using vibrating hand tools. Claimant continued to work for Employer after he filed his Form 3. The owner of Employer died, and the business closed May 28, 2010. Claimant alleged the last date of exposure was May 28, 2010. After Employer closed, Claimant opened and operated his own car window installation business, Max Auto Glass, at the same location.

¶ 3 Employer denied compensability, and the trial court appointed Dr. Richard Ruffin as the Independent Medical Examiner October 29, 2010. Claimant filed a Form 9 Motion for Trial seeking medical treatment and surgical authorization March 31, 2011. Employer requested that Claimant be evaluated by Dr. Kent C. Hensley. Dr. Hensley evaluated Claimant April 28, 2011 and issued a report finding no cumulative trauma and noting that if work with Employer was injurious, then work in subsequent employment was also injurious. Dr. Hensley's report was provided to Claimant a few days before trial. Employer filed a Form 10 and asserted the affirmative defense of subsequent aggravation May 4, 2011, one day before trial.

¶ 4 The case proceeded to trial May 5, 2011. At trial, Employer raised a § 11(B)(5) defense and argued Claimant's subsequent employer should be liable for benefits. Claimant argued Employer waived the defense, because it was not specifically pleaded on a Form 10. On May 9, 2011, the trial judge issued an order finding Claimant sustained compensable cumulative trauma injuries to his hands, wrists, arms, and elbows. The trial court rejected Claimant's argument that the § 11(B)(5) defense was waived and noted that the defense was adequately explored during Claimant's deposition, Dr. Ruffin's deposition, and by pleadings on file as of the day of trial. However, the trial court denied Employer's defense of subsequent aggravation and found “Claimant has not suffered injurious exposure as a self employed person (work dropped off).” The trial court continued to say that Employer's “85 O.S. § 11(b)(5) defense is DENIED based on DR. RUFFIN'S deposition of MARCH 8, 2011 and based on claimant's testimony about reduced tasks and a change in tasks following

[287 P.3d 413]

employer's death.” Both parties sought review from a three-judge panel. The three-judge panel affirmed the decision of the trial court. Both parties now seek review of the order of the three-judge panel. The Supreme Court of Oklahoma issued an order consolidating review proceedings for Case No. 109,803 and Case No. 109,805 under surviving Case No. 109,803.

STANDARD OF REVIEW

¶ 5 First, we must determine the proper standard of review. Claimant argues the any competent evidence standard of review applies, because the injury occurred prior to the effective date of 85 O.S.2011 § 340(D). Employer argues this Court should determine whether the panel's findings were against the clear weight of the evidence, as set forth in 85 O.S. § 340(D). Claimant and Employer filed their petitions for review August 26, 2011, the same day 85 O.S. § 340(D) went into effect. The 2011 amendment to the Workers' Compensation Code provides:

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:

1. The Court acted without or in excess of its powers;

2. The order or award was contrary to law;

3. The order or award was procured by fraud; or

4. The order or award was against the clear weight of the evidence.

85 O.S. § 340(D). Despite recent amendments to the Workers' Compensation Code and multiple decisions from appellate courts, uncertainty pervades. Clarification of the proper standard of review is warranted.² The issue presented is whether the standard of review established in 85 O.S.2011 § 340(D) applies when an appeal was filed after the new statute went into effect, but the claimant's injuries occurred and the matter was tried prior to the effective date of the statute. We hold that it does.

¶ 6 Prior to the 2010 amendment to 85 O.S. § 3.6, the standard of review was different depending on whether the review was by a three-judge panel of the Workers' Compensation Court or by the Supreme Court. In Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548, the Supreme Court of Oklahoma held that while the three-judge panel reviews the trial judge's findings to determine if they are against the clear weight of the evidence, the Supreme Court applies the any competent evidence standard when reviewing the panel's decision. Id. at 549 (applying 85 O.S.1981 § 3.6(A)).³ The Court also applied the any competent evidence standard of review to appeals from decisions of individual judges of the Workers' Compensation Court. Prior to the 2010 amendment, “[o]nly in the absence of competent evidence [would the] tribunal's decision be viewed as legally erroneous and hence subject to appellate vacation.” Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 8, 130 P.3d 213, 218–219.

¶ 7 The 2010 amendment to 85 O.S. § 3.6(C) provided:

The Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds:

[287 P.3d 414]

1. The Court acted without or in excess of its powers;

2. The order or award was contrary to law;

3. The order or award was procured by fraud; or

4. The order or award was against the clear weight of the evidence.

85 O.S.Supp.2010 § 3.6(C) (repealed). The 2010 amendment took effect November 1, 2010 and authorized the Supreme Court to review an order or award to determine whether it was against the clear weight of the evidence. In Dunlap v. Multiple Injury Trust Fund, 2011 OK 14, 249 P.3d 951, the Supreme Court held that the against the clear weight of the evidence standard of review set out in 85 O.S.Supp.2010 § 3.6(C) applied prospectively to claims for injuries that occurred after the effective date of the amendment, i.e., November 1, 2010. Id. ¶ 1, 249 P.3d at 952. As for appeals in cases where the injury underlying the claim for benefits occurred prior to the effective date of the amendment, the any competent evidence standard of review applied. Id.

¶ 8 In direct response to the Court's decision in Dunlap, the Oklahoma Legislature again amended and renumbered § 3.6(C), adding the language: “After the effective date of this act, regardless of the date of injury ...” 85 O.S.2011 § 340(D), effective August 26, 2011. All other language from the 2010 statute remained the same.

¶ 9 Claimant asserts that despite 85 O.S. § 340(D), the law in effect at the time of the injury should apply. Claimant's date of last exposure was May 28, 2010. On that day, any competent evidence was the standard of review. Claimant first argues that the Legislature's attempt at instructing the Oklahoma Supreme Court on the standard of review in § 340(D) is invalid under the separation of powers doctrine and violates Article IV, § 1 of the Oklahoma Constitution. Employer argues that standards of review are established by either appellate practice or explicit statutory command and, therefore, the Legislature is permitted to establish the standard of review for a particular matter.

¶ 10 Article IV, § 1 of the Oklahoma Constitution provides:

The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

Okla. Const. art. IV, § 1. Every legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably, and plainly inconsistent with the Constitution. City of Edmond v. Vernon, 2009 OK CIV APP 36, ¶ 8, 210 P.3d 860, 863 (citing Mehdipour v. State ex rel. Dep't of Corr., 2004 OK 19, ¶ 22, 90 P.3d 546, 555). The burden is on Claimant, as the party challenging the statute, to show beyond a reasonable doubt that § 340(D) is unconstitutional. See City of Enid v. Public Employees...