Wolfenbarger v. Safeway Stores, Inc.
| Decision Date | 24 July 1990 |
| Docket Number | No. 73330,No. 4,73330,4 |
| Parties | 1990 OK CIV APP 65 Patricia Mae WOLFENBARGER, now Hiles, Petitioner, v. SAFEWAY STORES, INCORPORATED, Own Risk, and Workers' Compensation Court, Respondents. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Lewis A. Berkowitz, Bufogle & Associates, Tulsa, for petitioner.
Paul V. McGivern, Jr., Daniel L. Crawford, McGivern, Scott, Gilliard, McGivern & Robinson, Tulsa, for respondent Safeway Stores.
This appeal concerns the denial of a motion to reopen for change of condition that was filed some 150 weeks after the award. The facts are not in dispute. The only controversy is how long Claimant had to file a motion to reopen following the original award of February 19, 1985, that adjudicated an injury to her great toe with fourteen percent permanent partial disability.
In denying the motion to reopen, the trial court applied the time period to reopen that was in effect at the time of her injury. Claimant was injured on December 9, 1983, at which time 85 O.S.1981 § 43 governed reopening of claims. Under this section jurisdiction to reopen extended for "the maximum period of time measured by the number 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." Even though Claimant's original award was to the great toe only, the trial court noted that Claimant's evidence showed a change of condition of ten percent to the foot which would have entitled her to twenty weeks if that condition had existed at the time of the original award. The court held that Claimant had only twenty weeks following the original award to reopen.
Claimant argues that reopening of her claim should be governed by an amendment to section 43 which was in effect at the time her doctor determined there was a serious change of condition that not only affected her great toe, but her foot as well. The amended section 43 provides in pertinent part that the court's jurisdiction to reopen any cause "shall extend for that period of time measured by the maximum number of weeks that could be awarded for the particular scheduled member where the change of condition occurred." 85 O.S.Supp.1989 § 43(C). Claimant points out that the maximum number of weeks that could be awarded for the foot is 200 weeks. 85 O.S.Supp.1989 § 22(3). As previously noted, Claimant's motion to reopen was filed some 150 weeks after the award.
The case of Earl W. Baker & Co. v. Morris, 176 Okla. 68, 54 P.2d 353 (1935), concerned the first amendment to the law governing reopening of workers' compensation claims for change of condition. In Morris, on the date of the employee's injury and the date of the award of July 29, 1929, there was no limit on the time within which a claim could be reopened. On May 3, 1933, the legislature limited the time for reopening a claim to the number of weeks for which compensation could have been awarded had the condition existed at the time of the original award. The amendment also required that an application to reopen be filed within that time limit. Morris filed his motion to reopen on May 25, 1934, which resulted in an award for change of condition. The employer and insurance carrier appealed and the supreme court reversed, holding that the workers' compensation tribunal had lost jurisdiction by reason of the amendment occurring after the award. After computing the correct number of weeks for the change of condition, the court noted that Morris' motion to reopen was well outside the time period of the amendment. The court held that the amendment would apply to the motion to reopen because no right of action had accrued to him at the time of the amendment, in that he had no change of condition on the date of the amendment. The court observed that the "right to relief" and "benefits" of the Workers' Compensation Act were...
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