Levi v. Special Indem. Fund
| Decision Date | 18 February 1964 |
| Docket Number | No. 39005,39005 |
| Citation | 389 P.2d 620 |
| Parties | James LEVI, Petitioner, v. SPECIAL INDEMNITY FUND and the State Industrial Court of the State of Oklahoma, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
The Special Indemnity Act, 85 O.S.1961, Sec. 171 et seq., contemplates an apportionment of responsibility between the employer and the Special Indemnity Fund in accordance with the statutory formula, and the derivative liability of the Special Indemnity Fund does not attach nor may be imposed thereunder unless the extent of the primary obligation, which is sought to be supplemented, stands judicially established by an award against the employer.
Original proceeding by claimant to review an order of the State Industrial Court denying him an award against the Special Indemnity Fund. Order sustained.
Paul Pugh, Oklahoma City, for petitioner.
Mont R. Powell, Mary Elizabeth Cox, Charles R. Nesbitt, Atty. Gen., Oklahoma City, for respondents.
The trial tribunal's order under review denies claimant's motion to reopen the claim on an alleged change of his condition and to allow him additional benefits solely against the Special Indemnity Fund (designated in this opinion as the Fund).
Claimant's last industrial accident occurred on September 20, 1952. An award, made against the employer on February 9, 1953, allowed him 20 per centum permanent (partial) disability to the right leg, or 35 weeks of benefits. On September 12, 1953, claimant secured a separate award against the Fund which recites, inter alia, that (a) claimant, when last injured, was a physically impaired person because of a pre-existing injury to his left knee and the right elbow; (b) claimant's pre-existing impairment in the left leg produced 10 per cent permanent loss of use and the condition of the right arm resulted in 9 per centum loss of use; and (c) claimant's two antecedent conditions, considered in combination with the last injury standing alone, produced 25 per centum permanent (partial) disability to the body as a whole. Upon subtracting all statutory deductions, the trial tribunal allowed 50 weeks of compensation against the Fund.
Following this award claimant filed a motion to reopen the cause for an additional award against the employer. The trial tribunal found his condition from the last injury to have undergone an interim change for the worse. The claim against the employer was afterwards finally settled by a joint petition for $750.00. This settlement agreement received the trial tribunal's approval on January 6, 1955. The compromised award, which represented approximately 17 per centum permanent (partial) disability to the leg, increased claimant's overall recovery against the last employer to the aggregate of 37 per centum permanent (partial) disability to the leg.
After final settlement with the employer claimant secured, on June 24, 1955, another (a second) separate award against the Fund. This award granted him additional compensation of 112.5 weeks for an increase in his combined disability occurring since the first award against the employer and attributable to a change of condition from the last accident. Neither of the two awards made against the Fund was reviewed by this court. Both became final and have been fully satisfied and the correctness of such orders is not an issue in this review.
The proceeding presently engaging our attention had its inception on November 30, 1957, when claimant sought to reopen the cause for an additional award 'as to the Special Indemnity Fund only.' His motion was predicated on an alleged change in condition occurring since June 24, 1955--the date of the last prior award against the Fund. The State Industrial Court denied claimant's claim against the Fund. At issue is the correctness of the...
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...the Fund's Liability ¶ 15 The special indemnity statutes do not impose a primary or original obligation upon the Fund. As Levi v. Special Indemnity Fund, 1964 OK 32, ¶ 7, 389 P.2d 620, 621-622, explained: The Special Indemnity Fund Act does not undertake to cast upon the Fund prime liabilit......
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