Taylor v. City of Oklahoma City
| Decision Date | 03 October 1989 |
| Docket Number | No. 68409,68409 |
| Citation | 782 P.2d 1363,1989 OK 129 |
| Parties | Jimmy L. TAYLOR, Petitioner, v. CITY OF OKLAHOMA CITY, Own Risk, and Workers' Compensation Court, Respondents. |
| Court | Oklahoma Supreme Court |
Certiorari to the Court of Appeals, Division IV original proceedings to review order of the Workers' Compensation Court; Clint G. Livingston, Trial Judge.
Original Proceedings to review order of three judge panel of Workers' Compensation Court affirming the trial judge's finding that claim for change of condition for the worse was barred by limitations. The Court of Appeals, Division IV, reversed.
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; ORDER OF THE WORKERS' COMPENSATION COURT SUSTAINED.
Sidney A. Musser, Jr., Abel, Musser, Sokolosky and Clark, Oklahoma City, for petitioner.
Rose M. Sloan, Oldfield and Coker, Oklahoma City, for respondents.
Proceedings to review an order of the Worker's Compensation Court three-judge panel denying recovery under a motion to reopen a claim for change of condition as not timely filed. The Court of Appeals reversed and remanded with instructions. We VACATE the opinion of the Court of Appeals and REINSTATE the Order of the Worker's Compensation Court Review Panel.
The parties will be referred to as Claimant (Taylor), and Respondent (City of Oklahoma City, own risk). Claimant suffered injuries during the course of his employment in late 1981. By order dated November 30, 1982, claimant was awarded permanent partial disability compensation for injuries to the back and neck.
In April, 1986, claimant sought and received additional medical treatment for his injuries. Later, on June 2, 1986, claimant filed his Motion to Reopen on Change of Condition for the Worse accompanied by a medical report which stated that the claimant's condition had worsened. Respondent filed no response to this motion.
A hearing was held in late June. During the close of that hearing, respondent argued that the limitations period for filing the motion had expired, that petitioner was barred from asserting his claim and the Workers' Compensation Court was without jurisdiction. The Trial Judge ruled that the claimant's back condition had indeed worsened, but that his claim for compensation was time-barred.
Claimant appealed the order to the Worker's Compensation Court three-judge panel, alleging that "[t]he order [was] contrary to the medical and other evidence as presented...." Claimant did not allege error in the court's ruling as to the limitations issue. The order was affirmed by the three-judge reviewing panel of the compensation court, holding the trial judge's order was "not contrary to law nor against the clear weight of evidence."
In an unpublished opinion, the Court of Appeals, Division 4, reversed, ruling that the respondent's failure to raise the limitations question by responsive pleading constituted a waiver of that defense. The cause was remanded with instructions "to enter judgment for increase in disability to the body as a whole based upon [the] finding that Claimant had sustained an increase of 12 [percent] permanent partial disability to the back." We granted certiorari to consider the questions presented on the issue of limitations.
Neither party on appeal suggests that the factual determinations are not supported by competent evidence; our review of this case is limited to questions of law determined by the three-judge review panel of the Worker's Compensation Court. Parks v. Norman Municipal Hospital, Okl., 684 P.2d 548, 551 (1984). Limitations issues, as mixed questions of fact and law, are reviewable by this Court as questions of law. Munsingwear, Inc. v. Tullis, Okl., 557 P.2d 899 (1976); see also: Hadley v. American General Life Insurance Co., Okl., 634 P.2d 1326 (1981).
The statute in effect at the time the present dispute was considered by the compensation court is 85 O.S.1981 § 43. The pertinent provisions of that statute state as follows:
"The jurisdiction of the Court to reopen any cause upon an application based upon a change in condition shall extend for the maximum period of weeks for which compensation could have been awarded by the Court had the condition of claimant existed at the time original award was made thereon and unless filed within said period of time, same shall be forever barred." 85 O.S.1981 § 43 (emphasis added). 1
It is not mandatory that a jurisdictional issue be raised prior to the hearing on the merits of the claim. Rule 9 of the Worker's Compensation Court Rules only states that "[a]ny party may raise a jurisdictional issue and request a hearing thereon in advance of a hearing on the merits." 85 O.S.1981 Ch. 4, App. (emphasis added). By the very terms of section 43, the limitations period cannot be calculated until the trial judge makes the factual determinations that a change of condition has occurred and the extent of that change.
In concluding that the bar of limitations had been waived by the respondent's failure to answer, the Court of Appeals relied upon Worker's Compensation Court Rule 17. The relevant provisions of that rule state:
85 O.S.1981 Ch. 4, App. (emphasis added).
Section 43 is a limitation on the remedy, not the right. Shank v. Oklahoma Office & Bank Supply, Okl., 387 P.2d 626 (1963). Rule 17 cannot provide a basis for the requirement that this respondent file an answer in this case. Nor can it be the basis for a determination that the bar of limitations was waived by respondent's failure to file an answer which, itself, was not required. Rule 17 is directed primarily to Form 3 proceedings. These proceedings were held pursuant to a Form 9 Motion for Change of Condition for the Worse. There exists no requirement by Rule or statute that requires a response to Form 9 proceedings.
Even if we were to accept the Court of Appeals' reasoning, which we cannot, we would still be required to affirm the order of the Worker's Compensation Court review panel.
The record shows that, in the claimant's petition for review, claimant only alleged that "[t]he order is contrary to the medical and other evidence as presented; ..." This motion is wholly insufficient under the applicable rule to preserve the limitations issue for review by the panel.
Rule 30 of the Worker's Compensation Court Rules, 85 O.S.1981 Ch. 4, App., states that "[t]he request for...
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