Special Indem. Fund v. Weber, 84013

• Decision Date: 09 May 1995
• Docket Number: No. 84013,84013
• Parties: SPECIAL INDEMNITY FUND, Petitioner, v. Leslie H. WEBER and the Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 292

895 P.2d 292

1995 OK 43

SPECIAL INDEMNITY FUND, Petitioner, v. Leslie H. WEBER and the Workers' Compensation Court, Respondents.

No. 84013.

Supreme Court of Oklahoma.

May 9, 1995.

Original Proceeding to Review an Order Nunc Pro Tunc of the Workers' Compensation Court, Jerry L. Salyer, Judge.

By order nunc pro tunc the Workers' Compensation Court granted claimant Leslie H. Weber's request that the final order awarding permanent disability compensation filed October 25, 1993 in cause WCC No. 92-22690X be modified to reduce the amount to be paid by each party as a contribution to the Special Indemnity Fund from five percent of the amount of the compensation award to three percent. The order nunc pro tunc was filed on July 13, 1994. This review proceeding was initiated on August 1, 1994.

Workers' Compensation Court Order Nunc Pro Tunc Filed July 13, 1994 in Cause WCC No. 92-22690X Vacated.

Robert Highsaw, State Ins. Fund, Oklahoma City, for petitioner.

Charles L. Cashion, McCaffrey & Tawwater, Oklahoma City, for respondents.

ALMA WILSON, Chief Justice:

Two first impression questions are presented: 1) Should this review proceeding brought by the State Insurance Fund in the name of the Special Indemnity Fund be dismissed for want of standing? and 2) Does the five percent rate in 85 O.S.Supp.1992, § 173, effective September 1, 1992, apply to an award of permanent disability compensation entered after the effective date for a compensable injury that occurred prior to the effective date? We answer the first question in the negative and the second question in the affirmative. We conclude that the State Insurance Fund has standing to maintain this review proceeding in the name of the Special Indemnity Fund pursuant to 85 O.S.1991, § 175. We also conclude that 85 O.S.Supp.1992, § 173(A) and (B) are taxing provisions applicable to compensation awards ordered by the Workers' Compensation Court on and after September 1, 1992. We overrule parts of the opinions in Burr v. Snitker, 865 P.2d 1258 (Okla.App.1993); Ailey v. D & B Construction, 855 P.2d 147 (Okla.App.1993); and, McDonald v. M & S Construction, Inc., 871 P.2d 1389 (Okla.App.1994), which are inconsistent with this opinion. We hold that the order nunc pro tunc entered by the Workers' Compensation Court and filed in cause WCC No. 92-22690X is contrary to law and is hereby vacated.

THE PROCEEDINGS

The Workers' Compensation Court awarded Leslie H. Weber compensation for permanent partial disability to be paid by the State Insurance Fund, insurer for Weber's employer, Robert M. Greer Center, due to an injury that occurred on June 18, 1992. The order awarding workers' compensation benefits provided that the "Special Indemnity Fund Tax shall be paid in the sum of $925.00 or five per cent (5%) by claimant and $925.00 or five per cent (5%) by respondent." The order was filed in the office of the Clerk of the Workers' Compensation Court on October 25, 1993.

On October 5, 1993, the Court of Appeals published its opinion in Burr v. Snitker ¹ which directed the Workers' Compensation Court to calculate the contributions to the Special Indemnity Fund using the three percent rate in effect on the date of the compensable That, the order of October 25, 1993, reflected a Special Indemnity Fund Tax of 5% in the amount of $925.00 to be paid by the respondent and by claimant herein. The Court further finds that the appropriate amount of tax in said order should have been 3%, or the sum of $555.60. There has thus been an overpayment Special Indemnity Fund Tax of $370.00. The Oklahoma Tax Commission is hereby ordered to reimburse claimant the sum of $370.00.

                injury rather than the five percent rate in effect on the date of the award.  Because Weber's compensable injury occurred prior to September 1, 1992, the effective date of the five percent rate, he requested the Workers' Compensation Court to enter an order nunc pro tunc modifying "the amount of Special Indemnity Fund Tax to be paid by the claimant to be 3% of the disability award herein rather than the 5% shown on the original order."   Upon the authority of Burr v. Snitker, on July 13, 1994, the Workers' Compensation Court filed its order nunc pro tunc, 2 ordering
                

On August 1, 1994, a petition for review of the order nunc pro tunc was filed in the name of the Special Indemnity Fund as petitioner by counsel for the State Insurance Fund as petitioner's counsel. The petition challenges the nunc pro tunc order as being void under the doctrine of finality and fundamental due process and challenges Burr v. Snitker as being contrary to law. In response to the petition, Weber seeks dismissal of this proceeding for the reason that the Special Indemnity Fund was not a party to the proceeding below and thus has no standing to seek review of the nunc pro tunc order.

THE STATE INSURANCE FUND HAS STANDING TO MAINTAIN THIS

REVIEW PROCEEDING IN THE NAME OF THE SPECIAL

INDEMNITY FUND PURSUANT TO 85 O.S.1991, § 175.

After raising the standing issue, Weber filed a notice of intent not to file a brief and he has not filed a brief herein. ³ A general rule of appellate procedure is that this Court will not address issues that are not fully argued with citation of authority. ⁴ However, inquiry into this Court's jurisdiction is an exception. ⁵

The standing issue requires inquiry into the interests of the State Insurance Fund to bring and prosecute this review proceeding. The State Insurance Fund is the employer's compensation insurer in the proceeding below and, in that capacity, has sufficient interest to seek review of the order nunc pro tunc. ⁶ However, the petition for review, brief in chief, and all other filings by counsel for the State Insurance Fund are submitted in the name of the Special Indemnity Fund rather than the State Insurance Fund. Hence, the jurisdictional question is: May the State Insurance Fund maintain this review proceeding in the name of the Special Indemnity Fund.

Title 85 O.S.1991, § 175 ⁷ vests in the State Insurance Fund a substantial interest in the Unquestionably, the order nunc pro tunc injuriously affects the Special Indemnity Fund. Hence, the State Insurance Fund, charged with the duties to administer and to protect the Special Indemnity Fund and given the right to notice, is unquestionably aggrieved by the order nunc pro tunc reducing the rate of contribution, whether or not a party to the workers' compensation proceeding. ⁸ Accordingly, the State Insurance Fund has standing to initiate and maintain this timely filed review proceeding in the name of the Special Indemnity Fund.

Special Indemnity Fund. Pursuant to § 175, the State Insurance Fund is charged with the duties to administer and protect the Special Indemnity Fund. The Administrator of the Workers' Compensation Court is required to notify the State Insurance Fund of all proceedings which may affect the Special Indemnity Fund and the State Treasurer is required to allocate funds in the Special Indemnity Fund to the State Insurance Fund for administrative expenses.

We note that Weber does not complain that the parties are not properly designated as required by Rule 1.102, Rules for Appellate Procedure in Civil Cases, 12 O.S.1991, ch. 15, app. 2. Rule 1.102 requires that all parties joining in the petition for review from the Workers' Compensation Court shall be designated as "petitioners." The filings herein unmistakably identify the Special Indemnity Fund as petitioner. ⁹ Weber's dismissal request is accordingly denied.

85 O.S.SUPP.1992, § 173

IS A TAX STATUTE CONTROLLED BY THE PRINCIPLES OF

TAXATION LAW.

Section 173 of Title 85 was first enacted in 1943, ¹⁰ imposing a one percent rate of permanent disability benefits as contributions for the Special Indemnity Fund. Beginning in 1955, the contribution rate has been increased over the years from one percent to five percent. Following the advice of the Attorney General of Oklahoma, each increase in the rate has been applied by the Workers' Compensation Court to all awards ordered after the effective date of the increase without regard to the date of the compensable injury. ¹¹ The most recent increase raised the rate of contributions to the Special Indemnity Fund from three percent to five percent. The pertinent provisions of 85 O.S.Supp.1992, § 173 ¹² are:

There is hereby created, for the purposes herein declared, a Special Indemnity Fund to be derived from the following sources:

A. Each mutual or interinsurance association, stock company, the State Insurance Fund, or other insurance carrier writing workers' compensation insurance in this state, and each self-insurer, shall pay to the Oklahoma Tax Commission a sum C. Where an award has been made by the Court, or any payments in lieu thereof, for compensable injury for a permanent total disability or a permanent partial disability, the employer or insurance carrier shall pay to such employee ninety-five percent (95%) of the same and the remaining five percent (5%) thereof shall be paid by such employer to the Oklahoma Tax Commission. Such payments to the Tax Commission shall be made not later than the fifteenth day of the month following the close of each quarter of the calendar year in which the compensation is paid or became payable.

equal to five percent (5%) of the total compensation for permanent total disability or permanent partial disability paid out or payable during each quarter-year period of the calendar year. Such payments to the Tax Commission shall be made not later than the fifteenth day of the month following the close of the quarter-year in which compensation is paid or becomes payable. Contributions made by insurance carriers and the State Insurance Fund, under the provisions of the Workers' Compensation Act, to the Special Indemnity Fund shall be considered losses for the purposes of computing workers' compensation rates....

D. The payments provided for in the foregoing subsections A and C, which aggregate...