Williams Cos. v. Dunkelgod, Case Number: 108990

• Court: Supreme Court of Oklahoma
• Citation: 2012 OK 96
• Docket Number: Case Number: 108990
• Parties: WILLIAMS COMPANIES, INC., (Own Risk), Petitioner, v. KRISTY DUNKELGOD and THE WORKERS' COMPENSATION COURT, Respondents.
• Decision Date: 20 November 2012

2012 OK 96

WILLIAMS COMPANIES, INC., (Own Risk), Petitioner,
v.
KRISTY DUNKELGOD and THE WORKERS' COMPENSATION COURT, Respondents.

Case Number: 108990

SUPREME COURT OF THE STATE OF OKLAHOMA

Decided: November 20, 2012

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT

¶0 Workers' compensation claimant Kristy Dunkelgod was injured in an employment-related accident on June 11, 2001, while working for Williams Companies, Inc. The Workers' Compensation Court entered several orders awarding claimant temporary total disability benefits. She was also awarded a "Go-Go" scooter and a lift van. On appeal by the employer, the Court of Civil Appeals, Division III, vacated the awards, holding the court's finding the lift van was medically necessary was "against the clear weight of the evidence." The Court of Civil Appeals also held the claimant was limited to a maximum of 300 weeks of temporary total disability benefits and remanded for a determination of when she reached the maximum. This Court previously granted certiorari.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III; COURT OF CIVIL APPEALS' OPINION IS VACATED; WORKERS' COMPENSATION COURT'S ORDER IS SUSTAINED AND REMANDED FOR FURTHER PROCEEDINGS

Karen McGivern Curthoys, Tulsa, Oklahoma, for Petitioner,

Victor R. Owens, Tulsa, Oklahoma, for Respondents.

OPINION

WATT, J.:

¶1 In this matter on certiorari, we address two issues:

1. Did the Court of Civil Appeals (COCA) err when it applied the "clear weight of the evidence" standard of review to the Workers' Compensation Court's order awarding a lift van?
2. Did COCA err when it held that Claimant's temporary total disability (TTD) award was limited to a maximum of 300 weeks?

We answer both questions in the affirmative. COCA failed to apply the law in effect at the time of Claimant's injury. We vacate and remand to the Workers' Compensation Court for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 Kristy Dunkelgod (Claimant or Dunkelgod) was injured on June 11, 2001, while working for Petitioner Williams Companies, Inc. (Employer) in Tulsa, Oklahoma. On her Form 3, she alleged a single incident injury to her back, with psychological overlay, which occurred while she was "lifting moving boxes all day." She also reserved all body parts. She later amended her Form 3 to add an injury of "consequential bowel/rectal distress" and again reserved all body parts. The trial court awarded TTD benefits on July 15, 2004, for injury to the lumbar back, and reserved the issues of "resulting psychological overlay and consequential injury in the form of bowel/rectal distress" for future hearing. The court found she had been, and continued to be, temporarily totally disabled since her injury and was "in need of further medical treatment, care and attention. . . ." Employer's request to terminate benefits was denied.¹

¶3 On October 20, 2008, the trial court ordered Employer to reimburse Claimant for a "Go-Go" scooter and a scooter lift for a vehicle. On January 15, 2010, the court ordered Employer to provide a driving evaluation and a van. The court found that Claimant's need for transportation was permanent and that neither leasing a van nor paying for private transportation was cost effective. After Employer appealed, the three judge panel reversed and remanded for consideration as to the "medical necessity" for the van.

¶4 On July 12, 2010, the trial court issued two orders. The court again awarded the van, equipped with lift service for her scooter, based on Dr. C.'s recommendation for transportation assistance to improve "claimant's mobility, independence and ultimate psychological recovery/stability." The order also contained the finding that Claimant's need for transportation was "medically/psychologically necessary."

¶5 The other order issued on July 12, 2010 directed Employer to pay an additional 52 weeks of TTD benefits and to provide treatment, including back surgery at "L2-3", a thoracic spine MRI, and epidural steroid injections in the lumbar spine and hip. On November 19, 2010, in its Order on Appeal, the panel affirmed the award of the van and additional TTD benefits, as ordered on July 12, 2010.²

¶6 Employer appealed the three judge panel's order. In a published opinion filed on November 18, 2011, COCA found the law applicable to Claimant's injuries provided a maximum of 300 weeks of TTD benefits. It vacated the panel's order and remanded for a determination of the date on which Claimant had received the maximum benefits. COCA also held the finding that the lift van was a medical necessity was "against the clear weight of the evidence." Claimant filed her petition for certiorari which was granted on February 22, 2012.

WHILE A WORKERS' COMPENSATION CLAIM IS PENDING, THE LAW AS IT EXISTED AT THE TIME OF THE INJURY DETERMINES THE SUBSTANTIVE RIGHTS AND LIABILITIES OF THE PARTIES, DESPITE AN INTERVENING STATUTORY AMENDMENT
a. The standard of review, determined on the date of injury, is a substantive right requiring prospective application.

¶7 Before the 2010 statutory amendment to 85 O.S. §3.6(C), discussed below, or the enactment of the new Workers' Compensation Code (the Code), 85 O.S. 2011, §§301-413 on August 26, 2011, Parks v. Norman Municipal Hosp., 1984 OK 53, 684 P.2d 548, was the landmark case addressing the standard of review in workers' compensation appeals. Appellate court review was limited to questions of law. 85 O.S. 1981 §26.³ Final orders of the Workers' Compensation Court were subject to the traditional "any-competent-evidence test of correctness."⁴ This was the standard of review at the time of Claimant's injury on June 11, 2001.

¶8 Effective November 1, 2010, 85 O.S. §3.6(C) was amended to provide:

The Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds:
. . .
4. The order or award was against the clear weight of the evidence. [emphasis added].

¶9 On March 1, 2011, this Court entered an order in Dunlap v. The Multiple Injury Trust Fund, 2011 OK 14, 249 P.3d 951, acknowledging the amendment of §3.6(C). We stated:

The amendment notwithstanding, the Court of Civil Appeals properly applied the "any competent evidence" standard of review in deciding this case because the injury underlying the claim for benefits occurred prior to effective date of the amendment. Knott v. Halliburton, 1988 OK 29, ¶4, 752 P.2d 812, 813-14. The amendment authorizing review of an order or award to determine whether it was against the clear weight of the evidence applies prospectively to claims for injuries that occur after the effective date of the amendment. [emphasis added].

¶10 We subsequently upheld the rule in Dunlap, supra, in Nomac Drilling LLC v. Mowdy, 2012 OK 45, ¶8, 277 P.3d 1282, 1284:

Because Claimant's injury precedes the effective date of the November 1, 2010 amendments to the Workers' Compensation Act, the law at the time of Claimant's injury governs. Thus, the 'any competent evidence' standard applies. See Dunlap v. Multiple Injury Trust Fund, 2011 OK 14, ¶1, 249 P.2d 951, 952. This Court must sustain the Workers' Compensation Court's determination of a fact issue if it is supported by any competent evidence. Parks v Norman Mun. Hosp., 1984 OK 53, ¶12, 684 P.2d 548, 552.

¶11 Dunlap and Nomac, supra, both construe the November 1, 2010 amendment to 85 O.S. §3.6 which provides for the review standard of "against the clear weight of the evidence."⁵ Now, for the first time, this Court construes 85 O.S. 2011 §340, the new Code section on Appeals. Section 340 contains no provision for using the law in effect at the time of injury. In fact, §340(D) provides for disregarding the law on the date of injury:

[A]fter the effective date of this act, regardless of the date of injury, the Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds:
. . .
4. The order or award was against the clear weight of the evidence. [emphasis added]

¶12 However, the new Code does include a provision at 85 O.S. 2011 §315, similar to §3.6(F) or §3.6(G) in the previous Act:

Benefits for a single event injury shall be determined by the law in effect at the time of injury. . . Benefits for death shall be determined by the law in effect at the time of death. [emphasis added]

¶13 Without deciding whether sections 340(D) and 315 are internally inconsistent,⁶ we consider instead whether the Legislature's obvious intent that the "against the clear weight of the evidence" standard of review must apply in every appeal filed after August 26, 2011, is consistent with our workers' compensation jurisprudence. We hold it is not.

¶14 A cause of action accrues when the plaintiff could have first maintained an action. See gen., Cowart v. Piper Aircraft...