Multiple Injury Trust Fund v. Sugg

• Decision Date: 17 November 2015
• Docket Number: No. 112,804.,112,804.
• Citation: 362 P.3d 222
• Parties: MULTIPLE INJURY TRUST FUND, Petitioner, v. Viola Patricia SUGG and The Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

362 P.3d 222

MULTIPLE INJURY TRUST FUND, Petitioner,

v.Viola Patricia SUGG and The Workers' Compensation Court, Respondents.

No. 112,804.

Supreme Court of Oklahoma.

Nov. 17, 2015.

Brandy L. Inman, Latham, Wagner, Steele & Lehman, P.C., Tulsa, Oklahoma, for the Petitioner.

Richard A. Bell, William C. Doty, The Bell Law Firm, Norman, Oklahoma, for the Respondents.

GURICH, J.

¶ 1 In Ball v. Multiple Injury Trust Fund, 2015 OK 64, 360 P.3d 499, this Court held that under the 2005 version of 85 O.S. § 171 an employee must be a physically impaired person as defined by the applicable statute before he or she can seek benefits from the Multiple Injury Trust Fund. In Ball, the Claimant had no prior adjudicated on-the-job injuries but sought to combine a Crumby finding¹ of pre-existing disability made simultaneously with an adjudication of an on-the-job injury to render her a physically impaired person. We held that because of the Legislature's specific removal of the word "pre-existing" in § 171 in 2005, which excluded a Crumby finding of preexisting disability from the definition of a physically impaired person, a Claimant could not combine a Crumby finding of preexisting disability made simultaneously with an adjudication of an on-the-job injury to render her a physically impaired person.

¶ 2 The facts of this case are different. Here, the Claimant suffered a compensable work-related injury to her neck and left knee in 1989. The 1989 claim was adjudicated by the Workers' Compensation Court, and Claimant received compensation for a 10% disability to the body as a whole.² By such previous adjudication of disability, Claimant was rendered a physically impaired person as defined in § 171. Claimant then had a second on-the-job injury in October of 2008. The Workers' Compensation Court found that Claimant sustained a compensable injury to her right knee due to that on-the-job injury. The order awarding Claimant permanent partial disability benefits to her right knee also made Crumby findings of pre-existing disability:

THAT at the time of the accidental injury on OCTOBER 21, 2008, claimant had a pre-existing permanent partial disability of 35 per cent to the LEFT KNEE; 15 per cent due to consequential psychological overlay; 20 percent to the NECK (1993 SURGERY) and 30 percent to the RIGHT LEG, due to consequential varicose veins, as the result of a previous injury. The issue of any permanent partial disability over and above said pre-existing disabilities is DENIED.³

¶ 3 Claimant filed a Form 3F on June 24, 2013, listing both the 1989 adjudicated injury to her neck and left knee and the subsequent adjudicated injury to her right knee as the basis for her claim against the Fund. Claimant sought to combine the adjudicated injury to her neck and left knee with the adjudicated injury to her right knee and the Crumby findings of pre-existing disability to render her permanently totally disabled. The Workers' Compensation Court denied permanent total disability benefits to Claimant and found that although Claimant was a physically impaired person at the time of her October 2008 on-the-job injury, "the claimant's combined injuries do not constitute permanent total disability as required by 85 O.S. § 172."⁴ The court's order did not specifically state whether the Crumby findings were combinable.

¶ 4 Claimant appealed, and the three-judge panel found:

Claimant was a physically impaired person at the time of her latest injury by reason of her 1989 work related injury which resulted in an adjudication. Herein, the evidence established Claimant was permanently totally disabled unless the ‘Crumby’ findings in the last permanent partial disability order of April 9, 2013 for the injury of October 21, 2008 are excluded. Nothing in 85 O.S. § 171 or the Special Indemnity Fund v. Carson 1993 OK 64, 852 P.2d 157 case preclude combining ‘Crumby’ findings where Claimant otherwise establishes she is a ‘physically impaired [person]’ by [reason] of a previous adjudication without regard to the ‘Crumby’ findings. Therefore, Claimant is then permanently totally disabled.⁵

The Fund appealed, and the Court of Civil Appeals affirmed the three-judge panel's order, relying on its previous decision in Multiple Injury Trust Fund v. Perry, Case No. 111,759 (Apr. 30, 2014), which we overruled in our recent decision in Ball. The Fund petitioned for certiorari review, and we granted review on October 19, 2015.

Standard of Review

¶ 5 The issue in this case is an issue of statutory interpretation. "Statutory construction presents a question of law and lower court rulings in this regard are reviewed de novo." Holley v. Ace Am. Ins. Co., 2013 OK 88, ¶ 5, 313 P.3d 917, 920.

Analysis

¶ 6 We first note that Special Indemnity Fund v. Carson, 1993 OK 64, 852 P.2d 157, is distinguishable and does not address the issue presented in this case. In Carson, this Court addressed the jurisdictional requirement of whether the Claimant was a physically impaired person, specifically construing § 171 of Title 85 to determine whether a Crumby finding of preexisting disability made contemporaneously with an adjudication of a subsequent injury rendered an employee a physically impaired person. In the case before us, neither party disputes that the Claimant was a physically impaired person under § 171 by reason of a previously adjudicated on-the-job injury to her neck and left knee in 1989. Thus, Carson is not instructive.

¶ 7 We also note, as we discussed in our recent decision in Ball, that after the 2005 amendments, the sole purpose of the Fund is to insulate employers from having to pay permanent total disability benefits to a previously impaired worker who suffers an additional work-related injury which prevents the worker from returning to any gainful employment. With that in mind, the 2005 version of 172 provides in relevant part:

A. 1. For actions filed before November 1, 1999, except as otherwise provided in this section, an employee, who is a ‘physically impaired person’ and who receives an accidental personal injury compensable under the Workers' Compensation Act which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone, shall receive compensation on the basis of such combined disabilities from the Multiple Injury Trust Fund. Only disability due to an injury to the body as a whole shall be combinable with a prior body disability, except that disability to a major member may be combined with disability to the body as a whole.

....

B. 3. For actions in which the subsequent injury occurred on or after November 1, 2005, if such combined disabilities constitute permanent total disability, as defined in Section 3 of this title, then the employee shall receive full compensation as provided by law for the disability resulting directly and specifically from the subsequent injury. In addition, the employee shall receive full compensation for permanent total disability if the combination of injuries renders the employee permanently and totally disabled, as above defined, all of which shall be computed upon the schedule and provisions of the Workers' Compensation Act. The employer shall be liable only for the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment. In permanent total disability cases the remainder of the compensation shall be paid out of the Multiple Injury Trust Fund and may be paid in periodic payments, as set forth in Section 22 of this title. The compensation rate for permanent total disability awards from the Multiple Injury Trust Fund shall be the compensation rate for permanent partial disability paid by the employer in the last combinable compensable injury. Permanent total disability awards from the Multiple Injury Trust Fund shall be payable for a period of fifteen (15) years or until the employee reaches sixty-five (65) years of age, whichever period is the longer. Permanent total disability awards from the Multiple Injury Trust Fund shall accrue from the file date of the court order finding the claimant to be permanently and totally disabled.

85 O.S. Supp.2005 § 172 (emphasis added).

¶ 8 Under § 172(B)(3), with regard to the Fund's liability for subsequent injuries occurring after November 1, 2005, the dispositive issue is whether an employee is permanently and totally disabled.⁶ Notably, although Section 172(B)(3) limits the employer's liability to the degree of disability resulting from the subsequent injury as if there had been "no preexisting impairment," the statute does not limit the Fund's liability to the disability resulting from the subsequent injury as if there had been no preexisting impairment. A Crumby finding of preexisting disability is "a rated assessment by the Workers' Compensation Court of the quantum of pre-existing unrelated impairments suffered by a claimant at the time the work-related injury occurred." Hammons v. Okla. Fixture Co., 2003 OK 7, n. 11, 64 P.3d 1108, 1110 n. 11. More specifically, this Court has said that a Crumby finding is a rated assessment of the effect, if any, upon the claimant's alleged capacity status "from the interplay of his compensable harm with the unrelated pre-existing conditions." Id. ¶ 5, 64 P.3d at 1110. Effect refers to that component of the claimant's total disability from pre-existing impairments which...