Special Indem. Fund v. Laxton

• Decision Date: 30 March 1965
• Docket Number: No. 40942,40942
• Citation: 1965 OK 56,400 P.2d 820
• Parties: SPECIAL INDEMNITY FUND of the State of Oklahoma, administered by the State Insurance Fund, Petitioner, v. James LAXTON and the State Industrial Court of the State of Oklahoma, Respondents.
• Court: Oklahoma Supreme Court

Page 820

400 P.2d 820

1965 OK 56

SPECIAL INDEMNITY FUND of the State of Oklahoma, administered by the State Insurance Fund, Petitioner, v. James LAXTON and the State Industrial Court of the State of

Oklahoma, Respondents.

No. 40942.

Supreme Court of Oklahoma.

March 30, 1965.

Syllabus by the Court

1. Payments to be made by Special Indemnity Fund in an award against it under provisions of 85 O.S.1961 § 172, begin when payments have ceased in the award made against employer; and where an order has been made on joint petition and payments thereof made by employer, State Industrial Court is authorized to order payments on the award against Special Indemnity Fund to commence immediately thereafter.

2. Standards governing the commuting of future periodical installments of an award to a lump sum against the Special Indemnity Fund in advance of accrual are entirely different and dissimilar from those which apply to awards against an employer and insurance carrier. An award against an employer and insurance carrier may be commuted to a lump sum for failure for ten days to pay as ordered any portion of an award by provisions of 85 O.S.1961 § 41. But in such a proceeding against the Special Indemnity Fund, the State Industrial Court is governed and its powers restricted by the terms of 85 O.S.1961 § 172, which plainly require an award against the Special Indemnity Fund to be paid in periodical installments, with an award being commuted to a lump sum only as therein provided.

3. Under the provisions of 85 O.S.1961 § 42, if compensation or an installment thereof due under terms of the award be not made within ten days after same is due, compensation and all payments thereof directed to be made by order of State Industrial Court bear interest at rate of 6% per annum from date ordered paid by State Industrial Court until date of satisfaction thereof.

Original proceeding brought by Special Indemnity Fund of the state of Oklahoma, administered by the State Insurance Fund, to review an order of the State Industrial Court allowing an award to be commuted to a lump sum and interest thereon made against it in favor of claimant. Order vacated and cause remanded with directions.

Mont R. Powell, Guy A. Secor, Oklahoma City, for petitioner.

Marx Childers, Charles R. Nesbitt, Atty. Gen., Oklahoma City, for respondents.

HALLEY, Chief Justice.

This is an original proceeding brought by the Special Indemnity Fund (designated in this opinion as the 'Fund') to review the State Industrial Court's order that it pay the trial judge's order of June 3, 1963, in a lump sum with interest from June 23, 1963.

The facts are not in dispute. On April 10, 1961, claimant filed his first notice of injury and claim for compensation, stating that while employed by Thomason Lumber Company he sustained an accidental injury arising out of and in the course of his employment when he received multiple injuries and burns to his body. The trial judge entered an order on April 17, 1963, finding that claimant sustained an accidental injury as alleged and awarded claimant compensation based upon 55% permanent partial disability to the body as a whole. On June 3, 1963, the trial judge entered an order, pursuant to a hearing on May 29, 1963, approving a settlement of the above award on joint petition.

Claimant was then adjudged permanently totally disabled on June 3, 1963, from the cumulative effects of a pre-existing injury considered in combination with his last accidental injury and the trial judge, after making the deductions provided by law, '* * * ORDERED That the Special Indemnity Fund begin payments to claimant forthwith of $30.00 per week, and continue same until the entire award of $4,190.00 has been paid * * *.' On June 12, 1963, the Fund appealed the award to the court en banc. The order of the trial judge of June 3, 1963, was '* * * adopted, affirmed and made the judgment and order * * *' by unanimous vote of the entire Industrial Court on October 28, 1963, and a certified copy of the Order on Appeal was mailed to the parties affected on October 30, 1963.

The Fund began payments of benefits to claimant by forwarding him a check for $60.00, dated November 8, 1963, representing two weeks' compensation, and thereafter by sending him its second check for $60.00, dated November 22, 1963, representing the following two weeks' compensation. The record does not reflect other payment and both checks were refused and returned by claimant.

On November 26, 1963, claimant filed a motion to accelerate his award against the Fund in the Industrial Court wherein he contended that the Fund had failed for over ten days to pay said award, or a portion thereof as ordered, and that he was entitled, under 85 O.S.1961 § 41 and § 42, to an order finding the Fund to be in default. He prayed that all unpaid portions, including future periodical installments unpaid, 'be accelerated, commuted to a lump sum, and ordered paid to the claimant together with 6% interest from the 14th day of June, * * *.'

A hearing was had upon the motion before a trial judge, and thereafter on March 4, 1964, the Fund was ordered 'to pay, in a lump sum, the order of the trial judge, of June 3, 1963, with interest at the rate of 6 per cent per annum, beginning June 23, 1963.' Our review of this order is sought by the Fund.

In argument, the Fund first contends that it is the duty of the Industrial Court to make specific findings of ultimate facts as well as conclusions of law upon which an order is made, and that the order in this case is too indefinite and uncertain for judicial interpretation. We do not find that the order, insofar as it orders the Fund to pay the award in a lump sum with interest, is indefinite and uncertain. Excise Board of Grady County v. Griggs, 192 Okl. 636, 138 P.2d 829; Pruitt v. Mid-Continent Pipe Line Company et al., Okl., 361 P.2d 494; McMurtrey v. American Association of Petroleum Geologists et al., Okl., 383 P.2d 215.

The Fund next urges that the Industrial Court's final order was October 28, 1963, and that it complied with the order by making its first payment of $60.00 on November 8, 1963. It relies upon Adams v. City of Anadarko et al., 202 Okl. 72, 210 P.2d 151; 101 C.J.S. Workmen's Compensation § 782; Nelson v. Central State Roofing Company et al., Okl., 345 P.2d 866; Edmonds v. Skelly Oil Company et al., 204 Okl. 471, 231 P.2d 360; and Higgs v. State Industrial Commission et al., 197 Okl. 281, 170 P.2d 240, in support thereof.

We agree with the cited authorities and the Fund's contention that the award made by the Industrial Court on the hearing upon the appeal became the final order and award of the Industrial Court, but the Fund failed to comply with that order. The Order on Appeal directed the Fund to begin payments to claimant on June 3, 1963, of $30.00 per week; and on October 28, 1963, claimant was entitled to a lump sum payment of all installments accrued from June 3, 1963, and a continuation of weekly benefits in accordance with the terms of the order. When the Fund failed to pay in a lump sum all installments accrued within ten days after October 28, 1963, it failed to comply with the court en banc's order and was therefore in default.

We think that Special Indemnity Fund v. Bryant et al., 205 Okl. 630, 239 P.2d 1014, is in point here. We held in the second paragraph of the syllabus:

'The payments to be made by Special Indemnity Fund in an award against it under the provisions of 85 O.S.1945 Supp. § 172, begin when the payments have ceased in the award made against the employer; and where an order has been made on joint petition and payments thereof made by the employer, the State Industrial Commission is authorized to order payments on the award against Special Indemnity Fund to commence immediately thereafter.' (Emphasis added)

However, we are of the opinion and hold that the trial judge erred in ordering the Fund to pay future periodical installments in a lump sum in advance of their accrual. The standards governing the commuting of future periodical installments of an award to a lump sum against the Fund in advance of their accrual are entirely different and dissimilar from those which apply to awards against employers and their insurance carriers. An award against an employer and insurance carrier may be communted to a lump sum in advance of accrual under 85 O.S.1961 § 41, but in such an action against the Fund, the trial tribunal is governed and its powers restricted by the terms of 85 O.S.1961 § 172.

85 O.S.1961 § 41, provides in part:

'* * * Failure for ten days to pay any final award or any portion thereof as ordered, shall immediately entitle the beneficiary to an order finding the respondent and/or insurance carrier to be in default and all unpaid portions, including future periodical installments unpaid, shall thereupon become due and may be immediately enforced as provided by Section 13366 of this Chapter.' (Emphasis added)

85 O.S.1961 § 172, provides in part:

'* * * After payments by the employer or his insurance carrier, if any, have ceased, the remainder of such compensation shall be paid out of the Special Indemnity Fund provided for in § 173 of this title, in periodical installments.

'Provided, that whenever an injured person receives an award in excess of Seven Thousand Five Hundred Dollars ($7,500.00), payable out of the Special Indemnity Fund, said injured employee, for good cause shown, in cases of extreme hardship, may have said award commuted to a lump sum payment by permission of a majority of the members of the State Industrial Court, said lump sum payment not to exceed twenty-five percent (25%) of the total award payable by the Special Indemnity Fund. All other awards payable out of the Special Indemnity Fund shall be paid in periodical installments and without commutation thereof to a lump sum. Laws 1943, p. 258, § 2; Laws 1945, p. 418, § 1; Laws, 1953, p. 432, § 1; Laws 1961, p. 640, § 1.' (Emphasis...