Multiple Injury Trust Fund v. Wade

• Citation: 2008 OK 15,180 P.3d 1205
• Decision Date: 26 February 2008
• Docket Number: No. 103,067.,103,067.
• Parties: MULTIPLE INJURY TRUST FUND, Petitioner, v. Frank WADE and the Workers' Compensation Court, Respondents.
• Court: Supreme Court of Oklahoma

180 P.3d 1205

2008 OK 15

MULTIPLE INJURY TRUST FUND, Petitioner, v. Frank WADE and the Workers' Compensation Court, Respondents.

No. 103,067.

Supreme Court of Oklahoma.

February 26, 2008.

Rehearing Denied April 7, 2008.

ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 4.

¶ 0 Claimant sustained a work-related injury on February 9, 1990, and on April 6, 1990, filed a claim for workers' compensation which identified him as a physically impaired person. The Workers' Compensation Court entered an award against the employer on July 29, 1992, ordering compensation for 170 weeks for the permanent partial disability but did not mention claimant's previous impairment or the Special Indemnity Fund. On April 29, 2005, claimant filed a motion for a hearing on the Fund's liability for material increase in disability due to the combination of his previous impairment and his subsequent injury. At the hearing, the parties argued the timeliness of the request for the hearing on the claim against the Fund. The court dismissed the request for untimely filing outside the five-year period allowed in § 43(B) of Title 85 of the Oklahoma Statutes. A three-judge panel of the Workers' Compensation Court vacated the dismissal and remanded the matter to the trial judge. The untimeliness of the request for a hearing was again argued on remand. The Workers' Compensation Court trial judge entered an award against the Fund. The Fund appealed contending that the claim and the request for a hearing were time barred. The Court of Civil Appeals sustained the award. We previously granted the Fund's petition for writ of certiorari.

OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE WORKERS' COMPENSATION COURT FILED FEBRUARY 2, 2006, REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Georgiana Peterson, Oklahoma City, OK, for petitioner.

Joe Farnan, Purcell, OK, for respondents.

TAYLOR, J.

¶ 1 The dispositive issue in this appeal is whether claimant timely requested a hearing on his right to receive benefits from the Multiple Injury Trust Fund (Fund). We conclude that 85 O.S.Supp.1986, § 43 (B) governs the time-restriction issue and that this statute required claimant to file a request for a hearing on his claim against the Fund within five years from the last payment by the employer in the primary claim. In this case, the date of last payment by the employer is a fact to be found by the trial judge below. Accordingly, we vacate the opinion of the Court of Civil Appeals, reverse the award of the Workers' Compensation Court (WCC), and remand this matter for further proceedings consistent with this opinion.

I. Background

¶ 2 In 1988, Frank Elmer Wade (claimant) sustained injuries to his lower back and his right wrist in the course of his employment at General Motors. Upon agreement of the parties, on October 25, 1990, the WCC adjudicated claimant's permanent partial disability due to the back impairment at 20% and the right hand impairment at 20% in case' No. 88-10266 J.

¶ 3 On February 9, 1990, claimant sustained an injury to his neck in the course of his employment at General Motors (employer). On April 6, 1990, claimant timely filed a workers' compensation claim Form 3, indicating he was a physically impaired person by reason of "No. 88-10266 J, back, neck, and right hand." By order filed June 20, 1991, the WCC determined claimant sustained a compensable injury to his neck and was temporarily totally disabled. Upon an evidentiary hearing on July 21, 1992, the WCC determined claimant was temporarily and totally disabled from August 2, 1990 to March 12, 1992, and reserved the issue of overpayment of temporary total disability for future hearing. The court also determined claimant sustained 34% permanent partial disability to the body as a whole due to the injury to the neck with radicular symptoms to the right arm and right hand. The court awarded claimant compensation for 170 weeks at $173.00 per week for the total amount of $29,410.00 and, finding 19 weeks had accrued, ordered a lump sum payment of $3,287.00. The order was filed on July 29,1992.

¶ 4 The order was not appealed and is final and conclusive between the parties upon all questions presented to the WCC. 85 O.S. 1991, § 8.6 (C). We observe that the order did not mention claimant's prior physical impairment nor did it mention the Fund even though the claim identified claimant as a physically impaired person and the judgment roll in case No. 88-10266 J was admitted into evidence.¹

¶ 5 The record on appeal shows very little activity in the case after the July 29, 1992 order until April of 2005. The next day, July 30, 1992, the employer filed a request for a pre-hearing conference on the calculation of credit for overpayment of temporary total disability. About two months later, on September 22, 1992, the claimant filed a motion to set for trial the issue of vocational rehabilitation. The record on appeal does not show further activity relating to the overpayment or vocational rehabilitation. From this record, it appears that the employer fully paid the compensation as ordered and that the case lay dormant for more than twelve years.

¶ 6 On April 29, 2005, claimant filed a motion for a trial on two issues: 1) permanent partial disability, and 2) liability of the Fund. The Fund answered, asserting that claimant was not a previously physically impaired person, he did not preserve any right to proceed against the Fund, and he did not properly or timely file a claim against the Fund.

¶ 7 On July 13, 2005, the WCC heard arguments on the time-limitations issues and received evidence on the claim. The Fund urged that claimant had five years from the July 29, 1992 order to request a hearing on his claim against the Fund under § 43(B) of the workers' compensation statutes. Claimant argued that he had no time restrictions on filing a Form 3-f to commence a claim against the Fund under Rule 13A and that he had five years after commencing the claim to request a hearing thereon under Reynolds v. Special Indemnity Fund, 1986 OK 64, 725 P.2d 1265, and Special Indemnity Fund v. Carlile, 1997 OK CIV APP 14, 939 P.2d 26. The Fund and the claimant submitted medical reports on the issue of material increase in disability and the Fund stipulated that claimant sustained 28% permanent disability to the body as a whole due to the previous impairment to the back and right hand.

¶ 8 On July 15, 2005, the WCC dismissed the claim against the Fund for want of prosecution, concluding that claimant failed to request a hearing on his claim against the Fund within five years of the date of the last payment of compensation as required by § 43(B) and Special Indemnity Fund v. Carlile, 1997 OK CIV APP 14, 939 P.2d 26. The dismissal order did not make a finding as to the date of last payment and the record on appeal does not indicate that the parties stipulated to or offered any proof of the date of last payment.

¶ 9 On November 7, 2005, a three-judge panel of the WCC vacated the trial judge's dismissal order as contrary to law and against the clear weight of the evidence and remanded the claim to the trial judge. On December 15, 2005, claimant filed a Form 3-f claim for benefits from the Fund and a Form 9 motion to set a trial on the liability of the Fund. On January 11, 2006, the Fund answered again asserting that claimant failed to timely request a hearing on his claim against the Fund. Claimant responded with a brief on the timeliness of the claim against the Fund and the request for a hearing.

¶ 10 On January 31, 2006, the WCC found that claimant sustained 34% permanent partial disability to the body as a whole by reason of the 1990 injury to the neck with radiculopathy to the right arm and right hand, that claimant sustained 28% permanent partial disability to the body as a whole by reason of the 1988 injuries, and that claimant sustained 10% material increase in permanent partial disability by reason of the combination. The WCC adjudicated claimant's permanent partial disability to the body as a whole at 72% and ordered the Fund to pay compensation for 50 weeks at $173.00 per week or a total of $8,650.00.

¶ 11 The Fund timely filed a petition for review asserting that the claim was barred by the statute of limitations in § 43(A) and that the claimant failed to timely prosecute the claim as required by § 43(B). The Court of Civil Appeals concluded the claim is not time barred and it was timely prosecuted under the controlling authority of Reynolds v. Special Indemnity Fund and Special Indemnity Fund v. Carlile. We granted the Fund's petition for writ of certiorari.

II. Standard of Review

¶ 12 The dispositive issue here is the meaning and application of the time requirement in subsection 43(B) of Title 85 of the Oklahoma Statutes for the diligent prosecution of a claim against the Fund. Construction of statutory language is a pure issue of law that stands before us for de novo review. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1122-1123. Our review of the workers' compensation court's legal rulings is plenary, independent and non-deferential. Id.

III. The Special Indemnity Statutes

¶ 13 The Fund was originally created in the Special Indemnity Fund Act, 1943 Okla. Sess. Laws, p. 258-260, now codified at 85 O.S.2001, §§ 171-176, as amended.² The special indemnity statutes were enacted to encourage employment of physically impaired persons defined in § 171. The statutes protect employers from the responsibility to compensate a physically impaired person for disability resulting from the combination of the previous impairment and the subsequent impairment caused by an on-the-job injury. Special Indemnity Fund v. Bonner, 1947 OK 144, ¶ 7, 198 Okla. 491, 180 P.2d 191, 192; Special Indemnity Fund v. Figgins, 1992 OK 59, ¶ 6, 831 P.2d 1379, 1382-1383.

¶ 14 The applicable version of § 172 ³ provided:

A. If an employee who is a "physically...