Special Indem. Fund v. Carson, 78320

• Decision Date: 11 May 1993
• Docket Number: No. 78320,78320
• Parties: SPECIAL INDEMNITY FUND, Petitioner, v. Leroy R. CARSON, and the Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 157

852 P.2d 157

1993 OK 64

SPECIAL INDEMNITY FUND, Petitioner, v. Leroy R. CARSON, and the Workers' Compensation Court, Respondents.

No. 78320.

Supreme Court of Oklahoma.

May 11, 1993.

Certiorari to the Court of Appeals, Division No. 4.

The Workers' Compensation Court awarded compensation against Special Indemnity Fund based on finding made pursuant to J.C. Penney Co. v. Crumby, 584 P.2d 1325 (Okla.1978); three-judge panel of Workers' Compensation Court affirmed. On appeal, the Court of Appeals sustained the three-judge panel.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; ORDER OF THREE-JUDGE PANEL OF WORKERS' COMPENSATION COURT VACATED; TRIAL JUDGE'S ORDER VACATED; CAUSE REMANDED.

State Ins. Fund by David Custar, Oklahoma City, for petitioner.

Boettcher and Brune by Fred L. Boettcher and Walt Brune, Ponca City, for respondents.

HODGES, Chief Justice.

The dispositive issue in this case is whether a finding pursuant to J.C. Penney Co. v. Crumby, 584 P.2d 1325 (Okla.1978) (Crumby finding), that the claimant had a pre-existing disability at the time of the award of workers' compensation disability is a previous adjudication under Okla.Stat. tit. 85, §§ 171-72 (1991), so as to bestow jurisdiction on the Workers' Compensation Court and trigger liability for the Special Indemnity Fund (Fund). We find that it is not. This determination moots all other issues.

The relevant facts are undisputed. On May 31, 1987, the claimant, Leroy Carson, suffered a heart attack. The Workers' Compensation Court found that the claimant had sustained 70 per cent permanent partial disability due to the heart attack. It also found, pursuant to Crumby, that the claimant had a pre-existing permanent partial disability of 20 per cent as a result of a heart attack he suffered in 1980. The finding of 70 per cent disability was over and above the pre-existing disability. The Workers' Compensation Court awarded disability compensation against the employer, and this order was not appealed.

The claimant then sought additional compensation against the Special Indemnity Fund (Fund). The trial judge found that the Crumby finding was not an adjudication of prior impairment to support an award against the Fund and denied the claim against the Fund. A three-judge panel of the Workers' Compensation Court found that the Crumby finding was a prior adjudication sufficient to support an award against the Fund and remanded the matter. On remand the trial judge found that the finding of 20 per cent pre-existing disability made pursuant to Crumby was a prior adjudication to be combined with the disability from the 1987 heart attack and held the Fund liable for the increase in disability from combining the two injuries. A three-judge panel of the Workers' Compensation Court affirmed. The Fund appealed.

On appeal the Fund argued, among other things, that the Workers' Compensation Court erred in holding that a Crumby finding constituted an adjudication of previous impairment so as to render the claimant a "physically impaired person" under Okla.Stat. tit. 85, § 171 (1991), and triggered the Fund's liability. This Court granted certiorari.

The Fund's liability and the Workers' Compensation Court's jurisdiction rests on the statutory definition of "physically impaired person." See Okla.Stat. tit. 85, § 172 (1991). ¹ If a claimant does not come within the definition of a "physically impaired person," the Fund is not liable for any disability compensation. Id. However, if the claimant falls within the definition, then the Fund is liable for the increase in disability resulting from the combination of two or more disabilities. Id.

Section 171 of the Workers' Compensation Act (Act) ² defines a "physically impaired person" as one 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," the loss of use or partial use of a major member which is apparent to an ordinary layman, ³ or "any disability which previously has been adjudged and determined by the Workers' Compensation Court...." The claimant does not argue that he has suffered any of the enumerated losses. Thus, the Fund's liability hinges on a previous adjudication of disability.

Section 172 requires that the claimant be a "physically impaired person" at the time of the subsequent injury. A Crumby finding of pre-existing disability is made at the same time as the adjudication of the subsequent injury. See Crumby, 584 P.2d at 1331. Therefore, a Crumby finding does not render a claimant a "physically impaired person" for purposes of bestowing jurisdiction on the Workers' Compensation Court and attaching liability to the Fund.

This ruling is consistent with our previous applications of sections 171 and 172. In Special Indemnity Fund v. Iven, 284 P.2d 419, 420 (Okla.1955), this Court stated:

The State Industrial Commission is without jurisdiction to enter an award against the Special Indemnity Fund under the provisions of 85 O.S.1951 §§ 171 and 172, unless it be shown that at the time of the subsequent injury the claimant was a physically impaired person by reason of having any disability which previously has been adjudged and determined by order of the State Industrial Court.

(Emphasis added.) Iven makes clear that the claimant must have been a "physically impaired person" at the time of the subsequent injury. In Special Indemnity Fund v. Tyler, 369 P.2d 180 (Okla.1961), this Court held that a pre-existing non-adjudicated heart condition did not render the claimant a "physically impaired person". Thus, the Fund did not incur any liability for the disability resulting from the pre-existing heart condition.

The claimant argues that Iven and Tyler are not applicable after the 1986 amendments to the Workers' Compensation Act. The 1986 amendments did not change the requirement that the claimant had to be a "physically impaired person" nor did they change the requirement that, if the claimant had not suffered an enumerated loss, his disability must have been adjudicated prior to the subsequent injury for the Fund's liability to attach.

The claimant relies on Dorris v. Continental Carbon Co., 717 P.2d 603 (Okla.1986). Dorris did not involve a claim against the Fund. In Dorris the claimant suffered a work related injury in 1984. The claimant had a pre-existing disability from an injury relating to his military service. The military-service injury had not been previously adjudicated. The Workers' Compensation Court found that the claimant was entitled to benefits for injuries resulting from the 1984 injury but not for the pre-existing military-related injury. The claimant argued that the Workers' Compensation Court erred in apportioning his disability and reducing his compensation. This Court held that, under section 22 of the Workers' Compensation Act, the trial tribunal correctly apportioned the disability and held the employer liable only for the injuries arising out of and in the course of the claimant's employment.

The decision in Dorris is not applicable to the present case. The present case involves the Fund rather than an employer. Section 22 does not control claims against the Fund. Section 171 and 172 are the relevant statutes in the present case and require an enumerated loss or an adjudication of disability prior to the subsequent injury for the Fund's liability to attach.

A Crumby finding is made contemporaneous with the adjudication of the subsequent injury and is not a previous adjudication as required by section 172. The claimant was not a "physically impaired person" for purposes of the Workers' Compensation Act, and the Workers' Compensation Court did not have jurisdiction to impose liability on the Fund for the claimant's injuries. Therefore, the cause is remanded to the Workers' Compensation Court with instructions to enter an order dismissing the claim for lack of jurisdiction.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; ORDER OF THREE-JUDGE PANEL OF WORKERS' COMPENSATION COURT VACATED; TRIAL JUDGE'S ORDER VACATED; CAUSE REMANDED.

SIMMS, HARGRAVE, SUMMERS and WATT, JJ., concur.

OPALA, J., concurs in result.

LAVENDER, V.C.J., and ALMA WILSON and KAUGER, JJ., dissent.

LAVENDER, Vice Chief Justice, dissenting:

I dissent from the majority opinion. I fear the bright line rule posited therein that under 85 O.S.1991, § 171 where a claimant has not suffered an enumerated loss, his disability must always be adjudicated prior to the subsequent injury for Fund liability to attach does not appear to comport with legislative intent and will surely lead to absurd results. A simple example is illustrative.

Jim and Ray work for Acme Tool Company. They have been life-long friends. As both are repairing a machine at work an explosion occurs which results in hip injuries to both men. Workers' compensation claims are filed by Jim and Ray. Although both hip injuries are substantially similar in severity Jim heals faster than Ray and he is able to obtain a quick adjudication and determination by the workers' compensation court of permanent partial disability. Ray, a slow healer, takes a longer period of time to adjudicate his case as to permanent partial disability because no adjudication can take place until the healing period has...