Herring v. State ex rel. Oklahoma Tax Com'n, 83380

• Decision Date: 28 March 1995
• Docket Number: No. 83380,83380
• Citation: 1995 OK 28,894 P.2d 1074
• Parties: Jim HERRING, Appellant, v. STATE of Oklahoma ex rel., the OKLAHOMA TAX COMMISSION; Claudette Henry, State Treasurer; the State Insurance Fund; the Special Indemnity Fund; the Oklahoma Department of Labor; the Honorable Susan Loving, Attorney General; and the State Department of Vocational and Technical Education, Appellee.
• Court: Oklahoma Supreme Court

Page 1074

894 P.2d 1074

1995 OK 28

Jim HERRING, Appellant, v. STATE of Oklahoma ex rel., the OKLAHOMA TAX COMMISSION;

Claudette Henry, State Treasurer; the State Insurance Fund;

the Special Indemnity Fund; the Oklahoma Department of

Labor; the Honorable Susan Loving, Attorney General; and

the State Department of Vocational and Technical Education, Appellee.

No. 83380.

Supreme Court of Oklahoma.

March 28, 1995.

Appeal from the District Court of Oklahoma County; Bryan Dixon, Judge.

Claimant awarded judgment by the Workers' Compensation Court against the Special Indemnity Fund for injury incurred in 1990. At the time of the injury, all moneys collected by the Oklahoma Tax Commission pursuant to Okla.Stat. tit. 85, § 173(A) and (C) (1991), were credited to the Special Indemnity Fund. Effective January 1, 1994, only 90% of the moneys collected by the Tax Commission were credited to the Fund pursuant to amendment to section 173(J). Claimant sued asking that the amendment to section 173(J) be declared unconstitutional. District court, finding claimant had vested interest in judgment but no vested interest in any particular fund, held amendment to section 173(J) constitutional as applied to claimant.

AFFIRMED.

Barry K. Roberts, Norman, for appellant.

Andrew Tevington, Asst. Atty. Gen., Oklahoma City, for appellees State, ex rel. Oklahoma Tax Com'n, Claudette Henry, State Treasurer, Oklahoma Dept. of Labor; Hon. Susan Loving, Atty. Gen., and State Dept. of Vocational and Technical Educ.

Thomas L. Spencer, York & Slater, Oklahoma City, for appellee State Ins. Fund.

Richard A. Mildren and Barbara Green, Riggs, Abney, Neal & Turpen, Oklahoma City, for appellee Special Indem. Fund.

HODGES, Justice.

On February 2, 1993, the Oklahoma Workers' Compensation Court awarded the plaintiff, Jim Herring, $173.00 per week for twenty weeks for a total of $3,460.00 against the Special Indemnity Fund (Fund). The award was the result of a finding that the claimant was a "previously physically impaired person" at the time of the latest compensable injury on May 29, 1990. The award was not appealed and became final. Later the same month, the plaintiff attempted to collect. Because of insufficient resources in the Fund's account, he did not receive payment for the award until March 20, 1994.

Workers' compensation insurers pay a sum equal to five per cent of the amount of total disability payments to the Oklahoma Tax Commission (Commission). Another five per cent of the amount of total disability payments is withheld from a claimant's compensation and remitted to the Commission. See Okla.Stat. tit. 85, § 173(A) and (C) (Supp.1993). The Commission then pays the collected funds to the State Treasurer. Id. at § 173(J). At the time of the injury and award in this matter, the entire amount collected under section 173 was credited to the Fund. Id. at § 173(J) (1991).

In 1993, section 173(J) was amended. 1993 Okla.Sess.Laws ch. 349, § 16. The 1993 amendment provided, beginning January 1, 1994, ninety percent of the funds collected pursuant to section 173 would be credited to the Fund, five percent to the Department of Labor, two and one-half percent to the Attorney General's Office, and two and one-half percent to the State Department of Vocational and Technical Education.

The plaintiff filed suit in the district court asking the 1993 amendment to section 173(J) be declared unconstitutional because it impermissibly impaired his vested rights by diverting moneys from the Fund. ¹ The Fund filed a motion for summary judgment arguing, among other things, that the plaintiff lacked standing. The defendants presented an affidavit stating that under the 1993 amendment the plaintiff would receive his compensation in March of 1994, and that under the pre-1993 amendment he would have likewise been paid in March of 1994. The plaintiff filed a response and cross-motion for summary judgment. The plaintiff submitted a statement of the income of the Special Indemnity Fund for 1993 along with a projected monthly decrease for 1994. However, the statement does not reflect the cause of the decrease is attributable to the amendment to section 173(J) nor does it suggest the plaintiff's payment would be delayed as a result of the 1993 amendment. The plaintiff did not submit any other evidentiary material.

The district court found that the plaintiff had a vested property right in his award but did not have a vested property right in any particular funds. The district court granted the defendant's motion for summary judgment holding the 1993 amendment to section 173(J) constitutional.

In Hendrick v. Walters, 865 P.2d 1232, 1236-37 (Okla.1993), this Court stated for a litigant to have standing there must be "(1) an actual or threatened injury ..., (2) some relief for the harm [that] can be given, and (3) an interest [that is] within a statutorily or constitutionally protected zone." "[T]he plaintiff seeking redress [must have] suffered, or is threatened with, some 'distinct and palpable injury' and ... there [must be] some causal connection between the alleged injury and the actions being challenged." Seal v. Corporation Commission, 725 P.2d 278, 283 (Okla.1986). The issue of standing may be raised at any stage of the judicial process either by the parties or by the court. Hendrick, 865 P.2d at 1236.

In this case, the Fund has presented evidentiary material that the 1993 amendment to section 173(J) has not caused any delay in the plaintiff's being compensated. The plaintiff has not filed any evidentiary material which shows that this issue is disputed.

Rule 13(b) of the Rules for District...