J. C. Penney Co. v. Crumby

• Decision Date: 30 May 1978
• Docket Number: No. 50360,50360
• Citation: 584 P.2d 1325,1978 OK 80
• Parties: J. C. PENNEY COMPANY and the Travelers Insurance Company, Petitioners, v. Madelyn CRUMBY and the State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 1325

584 P.2d 1325

J. C. PENNEY COMPANY and the Travelers Insurance Company, Petitioners, v. Madelyn CRUMBY and the State Industrial Court, Respondents.

No. 50360.

Supreme Court of Oklahoma.

May 30, 1978.

Rehearing Denied Oct. 20, 1978.

Original proceeding to review trial judge's order awarding compensation for 100% Permanent total disability resulting from accidental injuries found to have been sustained during covered employment. At the time of the subsequent injury for which the award was made, claimant was a "physically impaired person." Silas C. Wolf, Trial Judge.

AWARD VACATED WITH DIRECTIONS.

H. W. Nichols, Jr., Looney, Nichols, Johnson & Hayes, Oklahoma City, for petitioners.

Terry Shipley, Noble, for respondents.

IRWIN, Justice.

On January 17, 1968, Madelyn Crumby (Claimant) filed her claim for compensation alleging that she sustained accidental injuries to her low lumbar region on August 8, 1967, during her employment. This claim reflected that she previously had been awarded 30% Permanent disability to the body as a whole as a result of a prior accident. After several hearings, changes in claimant's attorneys and delays in prosecution, the order on review was issued in August, 1976. Claimant was awarded 100% Permanent disability to her body as a whole as a result of the 1967 accident, and respondents were ordered "to pay all claimant's past and reasonable necessary medical treatment bills incurred due to the injury." The order made no reference to claimant's previous disability. The employer, J. C. Penney Company, and its insurance carrier, hereinafter referred to as respondents, seek review.

The record discloses that in November, 1956, claimant was awarded 30% Permanent partial disability for an injury to her right leg. In October, 1957, the surgeon who had operated on claimant's knee, reported she was suffering from osteoporosis and abnormalities of the low back and hips. A motion to reopen based upon a change of condition was filed and an order was entered (May 14, 1958) awarding claimant 75% Permanent partial disability to the body as a whole. ¹

Claimant relies upon the medical testimony of Dr. R. to support the 100% Award on review. Respondents contend this evidence is insufficient to sustain the award because it was incompetent and without probative value in that claimant failed to furnish Dr. R. a complete and accurate history concerning her previous disabilities. Respondents suggest that claimant did not advise Dr. R. of her previous disabilities and Dr. R. admittedly had not checked prior hospital records or reports of other treating physicians concerning claimant's previous disabilities. However, the doctor acknowledged hospital records would be of assistance if other areas of complaint were involved. And, if a prior award involved a back injury, and other parts of the body, it would be necessary to know the amount of disability attributable to the different areas. In answer to direct inquiry, the doctor stated this information might modify his opinion in respect to claimant's back injury.

Claimant contends that respondents did not object to the admission of Dr. R.'s deposition and the two letters introduced by stipulation. Claimant argues that Dr. R.'s "testimony was to the effect that his opinion would be changed only to the extent claimant's previous adjudication of disability was related specifically to the back, and since claimant has never sustained a previous back injury, Dr. R.'s opinion as to disability was based upon an accurate medical history and his testimony is competent and supports the findings of the State Industrial Court".

Claimant's argument overlooks the fact that she was, as a matter of law, a physically impaired person within the purview of 85 O.S.1961, § 171 ², at the time she sustained the accidental injury in August, 1967.

85 O.S.1971, § 172 ³, prescribes the manner in which compensation benefits are to be determined where a "physically impaired person" receives an accidental injury. This section is part of the Special Indemnity Act (85 O.S.1971, sec. 171, et seq.) which contemplates an apportionment of responsibilities between the employer and the Special Indemnity Fund (Fund) in accordance with the statutory formula prescribed by sec. 172. Levi v. Special Indemnity Fund, Okl., 389 P.2d 620 (1964). It does not relieve the employer of his responsibilities for an employee's disabilities resulting from a subsequent injury but it does protect the employer against responsibilities for the combination of old and new disabilities so that the employer can, without fear of having to pay for disabilities not inflicted, employ a physically impaired person. Petroleum Maintenance Co. v. Herron, 201 Okl. 393, 206 P.2d 182 (1949).

Under sec. 172, when a "physically impaired person" receives an accidental injury, he is entitled to receive "full compensation as now provided by law for the disability resulting directly and specifically from such subsequent injury, and in addition thereto such employee shall receive full compensation for his combined disability * * *, after deducting therefrom the percent of that disability that constituted the employee a "physically impaired person ". The first responsibility falls upon the employer who is liable "for the disability resulting directly and specifically from such subsequent injury. " However, the ensuing language: "Provided the employer shall be liable only for the degree of percent of disability which would have resulted from the latter injury if there had been no pre-existing impairment," clearly shows an employer's liability extends only to the disabilities resulting from the subsequent injury, and does not include disabilities that constituted claimant a "physically impaired person" or any increase in disability due to a combination of disabilities. See Special Indemnity Fund v. Wilson, Okl., 348 P.2d 1072 (1960).

The Wilson case points out the difference in determining the extent of disability resulting in a second injury to a "physically impaired person" and an original injury in this language:

"Petitioner next argues that inasmuch as the last injury was to the same part of the claimant's back as the prior injury, it is a re-injury or an aggravation of his former condition, and that the employer is liable for the entire disability resulting therefrom. It is, of course, true that where an injury aggravates, or lights up, a dormant condition, the employer may be liable for the entire disability. A review of these cases, however, discloses their inapplicability there, since they involved either aggravation of a dormant disease or of an injury which did not constitute claimant a 'physically impaired person'. * * * "

Although the Wilson case was determined under the laws existing prior to the 1961 amendment of 85 O.S. § 172, (1961 Session Laws, p. 640), such amendment did not change the employer's liability to the injured employee, but did change the State Insurance Fund's liability. Under the 1961 amendment (85 O.S.1971, § 172) the claimant's rights against the Special Indemnity Fund are the same whether the combined disabilities constitute partial permanent disability or permanent total disability.

Fund's obligations are somewhat different from those of the employer. In the first place, Fund is not a prime, original or substitute obligor. Rather, its liability is purely derivative, in the sense it is derived or deducted from the anterior obligation of the employer, upon the extent of which it depends and which it merely supplements. Fund's liability does not attach unless and until the extent of the primary obligation, which is sought to be supplemented, stands judicially established by an award against the employer. Levi v. Special Indemnity Fund, supra. Fund is responsible only for the disabilities resulting from the combination of the disabilities that rendered the employee a "physically impaired person" and the subsequent injury. However, before Fund's obligation attaches, there must first be deducted the employer's liability and also the percentage of disability that rendered the employee a "physically impaired person."

In Special Indemnity Fund v. Doughty, Okl., 558 P.2d 396 (1977) claimant had been adjudicated totally and permanently disabled prior to the time he received the subsequent injury. Claimant was awarded 16% Permanent partial disability compensation against his employer as a result of his last injury. In adjudicating the claimant's claim against Fund the State Industrial Court found that claimant had previously been adjudicated totally and permanently disabled but "by reason of his physical constitution, he was able to and, in fact, did achieve recovery to the extent that he was no longer permanently and totally disabled at the time" of his subsequent injury. The Industrial Court found claimant was only 60% Permanently...