Special Indem. Fund v. Figgins

• Decision Date: 05 May 1992
• Docket Number: No. 76435,76435
• Citation: 831 P.2d 1379,1992 OK 59
• Parties: SPECIAL INDEMNITY FUND, Petitioner, v. Jack FIGGINS, and the Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 1379

831 P.2d 1379

1992 OK 59

SPECIAL INDEMNITY FUND, Petitioner, v. Jack FIGGINS, and the Workers' Compensation Court, Respondents.

No. 76435.

Supreme Court of Oklahoma.

May 5, 1992.

Certiorari to the Court of Appeals, Division 1, Appealed to a Three-Judge Panel, Victor R. Seagle, Trial Judge.

The respondent, Jack Figgins (Figgins/employee), an asthmatic, recovered an award for a work-related back injury. He sought additional recovery from the petitioner, Special Indemnity Fund (Indemnity Fund), as a physically impaired person. The trial court awarded benefits consistent with a 25% increase in disability. The award was sustained by a three-judge panel and by the Court of Appeals. We find that pursuant to 85 O.S.1991 § 171, a major member is a hand, an arm, a foot, or a leg. (Because § 171 specifically includes the loss of sight in its definition of a physically impaired person, it is no longer necessary to include the eyes within the more general term "major member".) A previously unadjudicated injury to the lungs and the respiratory system does not qualify an employee as a physically impaired person entitled to recovery from the Indemnity Fund.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION

VACATED; THREE-JUDGE PANEL AND TRIAL COURT OVERRULED.

Malcolm D. Smith, Oklahoma City, for petitioner.

Thomas A. Layon, Tulsa, for respondents.

KAUGER, Justice.

A single issue of first impression is presented--what is a major member within the meaning of 85 O.S. 1991 § 171. ¹ We find that pursuant to 85 O.S. 1991 § 171, a major member is a hand, an arm, a foot, or a leg. (Because § 171 specifically includes the loss of sight in its definition of a physically impaired person, it is no longer necessary to include the eyes within the more general term "major member".) A previously unadjudicated injury to the lungs and the respiratory system does not qualify an employee as a physically impaired person entitled to recovery from the petitioner, the Special Indemnity Fund (Indemnity Fund). ²

FACTS

While serving in the United States Navy in 1945, the respondent, Jack Figgins (Figgins/employee), developed bronchial asthma. On May 9, 1988, Figgins injured his back. He was employed by Broken Arrow Public Schools (Broken Arrow/employer). The workers' compensation claim was settled by joint petition on October 23, 1989. Figgins was awarded a lump sum benefit based on a 10% permanent partial disability to the whole person. On November 21, 1989, Figgins filed a claim against the Indemnity Fund asserting additional permanent disability resulting from his status as a previously impaired person. ³

The cause was tried on June 6, 1990. Figgins presented testimony that his breathing disorder was obvious and apparent to a lay person. His medical evidence was presented in reports from Dr. Schoborg. The reports indicated that Figgins had sustained a 30% disability resulting from his asthma and that the 10% disability from the back injury combined to produce a

65% disability--a material increase of 25%. The Indemnity Fund's medical expert, Dr. Young, prepared a report stating that Figgins' asthma was not obvious and apparent. Without rating the asthmatic condition, Dr. Young concluded that there was no material increase in impairment. Figgins did not object to Dr. Young's report. The trial court combined the asthma and back injury and awarded Figgins a 25% material increase of $21,625.00. A divided en banc Panel affirmed. The Court of Appeals sustained the order. We granted certiorari on March 10, 1992, to consider a question of first impression--what is a major member within the meaning of 85 O.S. 1991 § 171.

PURSUANT TO 85 O.S. 1991 § 171, A MAJOR MEMBER IS A HAND, AN ARM, A FOOT, OR A LEG. (BECAUSE § 171 SPECIFICALLY INCLUDES THE LOSS OF SIGHT IN ITS DEFINITION OF A PHYSICALLY IMPAIRED PERSON, IT IS NO LONGER NECESSARY TO INCLUDE THE EYES WITHIN THE MORE GENERAL TERM "MAJOR MEMBER".) A PREVIOUSLY UNADJUDICATED INJURY TO THE LUNGS AND RESPIRATORY SYSTEM DOES NOT QUALIFY AN EMPLOYEE AS A PHYSICALLY IMPAIRED PERSON ENTITLED TO RECOVERY FROM THE SPECIAL INDEMNITY FUND.

The Indemnity Fund asserts that Figgins was not a physically impaired person pursuant to 85 O.S. 1991 § 171 ⁴ when he injured his back. It argues that impairment to the lungs is not the loss or the partial loss of a major member within the meaning of § 171. Figgins insists that the respiratory system is a "sufficiently major member" of the body to support the award for additional disability to the body as a whole. We disagree.

The Special Indemnity Fund Act (Indemnity Act) was originally enacted as House Bill No. 249 of the 1943 regular session of the Oklahoma Legislature. ⁵ Before creation of the Indemnity Fund, it was extremely difficult for physically impaired persons to obtain employment. If an impaired person suffered an on-the-job injury causing additional disability because the injured employee was a physically impaired person, full responsibility for compensation fell on the employer or the insurance carrier. ⁶ A strict enforcement of the full responsibility rule created a natural reluctance on the part of employers to hire or retain employees suffering from an obvious handicap. ⁷ In Nease v. Hughes Stone Co., 114 Okl. 170, 244 P. 778, 780 (1925), this Court held that a person who, when hired, had the use of only one eye was entitled to permanent total disability when he suffered the loss of the second eye in an on-the-job injury. The employer in Nease asserted that because the employee lacked the use of one eye when he was hired, he was only entitled to compensation for the scheduled loss of one eye. Under the Court's ruling, the employer was liable for the totality of the disability awarded. According to 2 Larson, The Law of Workmen's Compensation, p. 10-492.397, § 59.31(a) (Matthew Bender 1992), within thirty days following the pronouncement of the non-apportionment rule in Nease between seven and eight thousand one-eyed, one-legged, one-armed, and one-handed workers were displaced in Oklahoma.

The purpose of the Indemnity Fund is to encourage employment of previously impaired workers. ⁸ Pursuant to § 172 of the Indemnity Act, a physically impaired person who is injured in a second accident is Section 171 defines a physically impaired person as:

entitled to compensation for the totality of his/her disability. However, the employer is liable only for the amount of disability caused by the subsequent accident. The Indemnity Fund is responsible for excess awards resulting from combined disabilities. ⁹

"... (A) person who ... has suffered the loss of the sight of one eye, the loss by amputation of the whole or a part of a major member of his body, or the loss of the use or partial loss of the use of a major member such as is obvious and apparent from observation or examination by an ordinary layman ... or any disability which previously has been adjudged and determined by the Workers' Compensation Court ..."

Before an award against the Indemnity Fund can be sustained, the claimant must show that he/she is a physically impaired person within the meaning of § 171. ¹⁰ Because Figgins' asthmatic condition has not been adjudicated as a workers' compensation injury, ¹¹ he qualifies as a physically impaired person only if the respiratory system is a "major member" within the meaning of § 171.

The term "major member" is not statutorily defined. To ascertain its meaning, we must determine the legislative intent. ¹² Legislative familiarity with extant judicial construction of statutes is presumed. Unless a contrary intent clearly appears or is plainly expressed, the terms of amendatory acts retaining the same or substantially similar language as the provisions formerly in force will be accorded the identical construction to that placed upon them by preexisting case law. ¹³ If a former statute is clear or its meaning has been judicially determined, legislative amendment may reasonably indicate a legislative intent to alter the law. ¹⁴

From its enactment in 1943 until its revision in 1976, § 171 provided that a physically impaired person was one who had suffered the loss by amputation of the whole or a part of some member of the body or the loss of the use, or partial loss of the use, of a specific member. ¹⁵ Under the original statute, the reference to a specific member in § 171 was interpreted to include only those body parts specifically scheduled for compensation--thumbs, fingers, toes and hands, arms, feet, legs, and eyes. ¹⁶

                The 1976 amendment provides that a physically impaired person is a person who has sustained an injury to any part of the body or a specific member thereof. 17  When the statute was amended again effective July 1, 1978, it retained the language contained in its 1976 predecessor. 18  Section 171 obtained its present form in a 1986 amendment.  The Legislature deleted the reference to "any part of the body" and substituted the term "major member" for "specific member". 19
                

There is a body of case law interpreting the original version of § 171. In Special Indem. Fund v. Davidson, 196 Okl. 118, 162 P.2d 1016, 1018 (1945), this Court held that injuries to minor specific members could not be combined with an unadjudicated injury for additional recovery against the Indemnity Fund. In doing so, the Court differentiated between minor members and major members. The Davidson court denoted thumbs, fingers, and toes as minor specific members and eyes, hands, feet, and legs as major specific members. ²⁰ The meaning attributable to a major member was further defined in subsequent cases. In Special Indem. Fund v. Wade, 199 Okl. 547, 189 P.2d 609-10 (1948), major members were referred to as the eyes, legs, feet, arms, and hands. In Special Indem. Fund v. Taylor, 199 Okl. 571, 188 P.2d 866-67 (1948), hands and feet were classified as major members. The legs and feet were denominated "major members" in Special Indem. Fund v. Kilgore, 203...