Pickett v. Oklahoma Dept. of Human Services

• Decision Date: 10 December 1996
• Docket Number: No. 1,No. 87506,87506,1
• Citation: 932 P.2d 543
• Parties: Norma PICKETT, Petitioner, v. OKLAHOMA DEPARTMENT OF HUMAN SERVICES and the Workers' Compensation Court, Respondents. Court of Civil Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 543

932 P.2d 543

Norma PICKETT, Petitioner, v. OKLAHOMA DEPARTMENT OF HUMAN SERVICES and the Workers' Compensation Court, Respondents.

No. 87506.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma,

Division No. 1.

Dec. 10, 1996.

Opinion Ordered Published Jan. 21, 1997.

Michael T. Braswell, Oklahoma City, for Petitioner.

David Custar, State Insurance Fund, Oklahoma City, for Respondents.

MEMORANDUM OPINION

JOPLIN, Judge:

Petitioner Norma Pickett (Claimant) seeks review of the trial court's order denying her motion to reopen as time-barred by 85 O.S.1991 § 43(C). Herein, Claimant asserts (1) she timely filed her motion to reopen and amendment thereto as to previously adjudicated injuries to both leg and back, and (2) the applicable statute of limitations was tolled by provision of medical treatment by Respondent Oklahoma Department of Human Services (Employer).

In March 1984, Claimant sustained compensable on-the-job injury to back, left hip, left leg (knee) and right ankle. On July 30, 1985 the workers' compensation trial court awarded benefits for six percent (6%) permanent partial disability (PPD) to the body as a whole due to injury to the left hip, eight percent (8%) PPD to the right ankle and five percent (5%) PPD to the left leg (knee), while finding no PPD to Claimant's back as a result of the injury.

Claimant subsequently sought to reopen, asserting change of condition for the worse. In June 1987, the trial court determined that Claimant had sustained a change of condition for the worse, and found Claimant again temporarily and totally disabled as a result of her original injuries. On December 4, 1989, the trial court awarded Claimant benefits for an additional twenty-five percent (25%) PPD to left leg (knee), seventeen percent (17%) PPD to the body as a whole due to injury to back, and five percent (5%) PPD to the body as a whole due to psychological overlay, with no increase in disability to left hip or right ankle.

On July 27, 1995, Claimant filed a Form 9, again seeking to reopen, and alleging "knee surgery required for left knee." On February 6, 1996, the matter came on for hearing, whereat Claimant and Employer submitted briefs on the statute of limitations issue, yet we have no transcript of those proceedings before us. On April 30, 1995, the trial court issued its order denying Claimant's motion to reopen, finding that Claimant had 250 weeks since the last order to file a motion to reopen on the knee injury, and that Claimant's Form 9 motion to reopen filed 292 weeks after the December 1989 order was accordingly untimely. Claimant now appeals.

In one proposition, Claimant asserts that under 85 O.S.1991 § 28, when faced with a change of condition the Workers' Compensation "Court may at any time review any award," and that the "at any time" language of § 28 controls over the specific limitations periods established by 85 O.S. § 43(C). These sections provide in pertinent part:

Upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, the Court may at any time review any award, and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers' Compensation Act, ....

85 O.S. § 28.

C. The jurisdiction of the Court to reopen any cause upon an application based upon a change in condition shall extend for that period of time measured by the maximum number of weeks that could be awarded for the particular scheduled member where the change of condition occurred, or for three hundred (300) weeks in the case of injuries to the body or injuries not otherwise scheduled under the provisions of Section 22 of this title, and unless filed within said period of time after the date of the last order, shall be forever barred.

85 O.S. § 43(C).

On this issue, we disagree with Claimant for two reasons. First, where two statutes arguably deal with the same subject matter, one specific and one general, the specific statute controls. See, e.g., City of Tulsa v. Smittle, 702 P.2d 367 (Okla.1985). Second, later-enacted legislation, as the most recent expression of legislative will, controls over earlier-enacted provisions, and the later-enacted statute operates as a repeal of the former to the extent of repugnancy. See, e.g., Poafpybitty v. Skelly Oil Co., 394 P.2d 515 (Okla.1964). Under these authorities, we hold § 43(C), being the specific and latest pronouncement of the Oklahoma legislature on the issue, governs and controls the periods in which to seek reopening of the case to the exclusion of the § 28 "at any time" language. We therefore reject Claimant's third proposition.

In another proposition, Claimant asserts that Employer's provision of continuing medical treatment in accord with the December 1989 order granting additional benefits for increased PPD tolled any applicable limitations period. In support of this argument, Claimant cites cases decided under previous versions of § 43, where by virtue of the employer's voluntary payment of medical expenses, the employer was held to have waived the right to insist on the timely initial commencement of a workers compensation claim. See, e.g., Mertz, Inc. v. Gulley, 663 P.2d 753 (Okla.App.1983); Cinderella Motor Hotel, Inc. v. Wallace, 506 P.2d 556 (Okla.1973). In that regard, Claimant cites, and we find, no Oklahoma authority applying the "medical treatment" rule to toll the limitation period prescribed by § 43(C) for commencement of a reopening proceeding. Indeed, if it is the employer's voluntary assumption of the responsibility for paying an injured employee's medical bills which triggers the waiver rule, it could hardly be said that an employer who pays medical or disability benefits pursuant to a workers compensation court order has voluntarily assumed any responsibilities inconsistent with his right to insist on timely commencement of the claim. We consequently hold Employer herein did not waive assertion of the limitation defense by payment of Claimant's medical or disability benefits, and further hold the periods prescribed by § 43(C) for commencement of a reopening proceeding not tolled thereby.

In another proposition, Claimant asserts, in essence, that...