MULTIPLE INJURY TRUST FUND v. HILL

MULTIPLE INJURY TRUST FUND v. HILL
2001 OK CIV APP 8
16 P.3d 1143
72 OBJ 429
Case Number: 94899
Decided: 12/22/2000
Mandate Issued: 01/24/2001
Division I

MULTIPLE INJURY TRUST FUND, Petitioner
v.
PAUL HILL and THE WORKERS' COMPENSATION COURT, Respondents

PROCEEDING TO REVIEW AN ORDER OF THE WORKER'S COMPENSATION COURT
HONORABLE RICHARD L. BLANCHARD, JUDGE.

VACATED AND REMANDED

Georgiana Peterson, Oklahoma City, Oklahoma, for Petitioner
Jack G. Zurawik, Tulsa, Oklahoma, for Respondents

OPINION

GARRETT, Judge

¶1 Respondent, Paul Hill (Claimant), filed a Form 3-F in the Workers' Compensation Court against the Special Indemnity Fund, now the Multiple Injury Trust Fund (the Fund), on October 29, 1997. He alleged the date of his prior injury was January 28, 1987, which was adjudicated on March 21, 1989, for 46.35% whole body injury to his back, left hip and left leg. He alleged the date of his most recent injury was February 6, 1996, and the date of the order was October 13, 1997, adjudicating 25% whole body injury to his back. The total impairment on the form 3-F is shown as 71.35% PPD whole body injury. Claimant filed a Form 9, requesting permanent total disability (PTD).

¶2 On May 15, 1998, the trial court filed an Order for Permanent Total Disability against the Fund. The order recites that on October 1, 1997, Claimant joint petitioned his claim for the most recent injury, of 25% PPD, which occurred on February 6, 1996, for $25,000.00, and:

that when divided by claimant's rate of $205 equals 122 weeks which must elapse from date of said joint petition before the Special Indemnity Fund begins weekly payments to claimant (less attorney fee).

THAT once benefits commence, respondent is ordered to pay compensation to claimant at the rate of $205 per week until the claimant (date of birth: 9-29-42) reaches the age of 65 years, or for a period of five (5) years, whichever is longer (less attorney fee). The claimant shall provide respondent with a certified copy of her/his certificate of birth within twenty (20) days of the filing date of this Order.

¶3 No appeal was taken from the May 15, 1998 order. On January 27, 2000, Claimant requested a prehearing conference on the issues of "accrued interest and Attorney fee since May 15, 1998". On June 8, 2000, the trial court entered its "Prehearing Conference Order".

That recently, 85 O.S. §172(B)

¶4 This review proceeding by Fund followed. For reversal, Fund contends that the pre-1999 form of §172

¶5 The instant case is somewhat similar to the case of Spurgin v. Multiple Injury Trust Fund, 2000 OK CIV APP 85, 10 P.3d 240 (cert denied). Spurgin argued that 85 O.S. Supp. 1999 §172(B), which provides that awards against the Fund shall accrue from the date of the order finding PTD liability against the Fund, should control the award against the Fund. He argued that position, despite the fact his last injury pre-dated the effective date of the amendment, November 1, 1999. The claimant contended that pursuant to the amendment, his payments from the Fund should be paid from the date of the PTD order against the Fund, rather than after all PPD payments were made. He also argued that because there was no language of accrual in the prior statute, the legislative intent to change the law was clear.

¶6 We held no legislative intent was shown to apply the new statute to pre-amendment PTD awards against the Fund. This Court held the statute in effect at the time of Claimant's most recent injury is the statute which controls. We said, at 243-244:

The MITF correctly contends that the law in effect at the time of the subsequent injury is the law to be used in fixing the liability of the Fund. See Special Indemnity Fund v. Archer,

¶7 In the present case, the trial court found that the amendment of §172(B) showed legislative intent to apply the language of accrual to "past, present and future" orders against the Fund because of the former statute's silence on the issue of accrual. Although we agree the legislature changed the law, it did not show an intent to apply the amendment retroactively to PTD orders for which the last injury occurred prior to the amendment. See also Stidham v. Special Indemnity Fund, 2000 OK 33, ¶15, 10 P.3d 880, wherein the Supreme Court stated, "The terms of 85 O.S. Supp. 1994 §172(E), which direct that Special Indemnity Fund's payments begin not earlier than a certain point of time following the award against the last employer, are a restriction on the Workers' Compensation Court's power to act." [Emphasis in original.]

¶8 [16 P.3d 1146] Claimant herein argues, inter alia, that the trial court correctly applied the amendment to this case. He contends, under §22, "permanent total disability" payments are to be paid during the continuance of such total disability. However, the statutory provisions under sections 172 and 173 deal specifically with payments by the Fund, and time restrictions found therein must control.

¶9 The trial court acted outside its authority in finding the award against the Fund, for which the date of Claimant's last injury occurred prior to the amendment of §172, began to accrue, and became payable, on the date the PTD order against the Fund was entered. This court reviews a trial court's conclusions of law by a de novo standard, performing an independent, non-deferential re-examination of the trial court's legal rulings. If the undisputed facts do not support the workers' compensation order, the order will be vacated. Barre v. TCIM Services, Inc., 1998 OK CIV APP 179, 971 P.2d 874, 876, citing Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, 895 P.2d 731.

¶10 The order of the Workers' Compensation Court is vacated as an impermissible collateral attack on a valid order entered May 15, 1998. This case is remanded with directions that the May 15, 1998 order be reinstated.

¶11 VACATED AND REMANDED.

¶12 JONES, P.J., and BUETTNER, J., concur.

1The court stated the issue in the order, "is whether a permanent total disability Order against the Multiple Injury Trust Fund (formerly Special Indemnity Fund) which contains a lapse time paragraph 'accrues' from the date of the Multiple Injury Trust Fund Order or whether there is no accrual and payments merely begin on the appointed 'lapse' date."

285 O.S. Supp. 1999 §172(B):

B. If such combined disabilities constitute permanent total disability, as defined in Section 3 of this title, then the employee shall receive full compensation as now provided by law for the disability resulting directly and specifically from the subsequent injury. In addition, the employee shall receive full compensation for the combined disability, as above defined, all of which shall be computed upon the schedule and provisions of the Workers' Compensation Act. The employer shall be liable only for the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment. After all permanent partial disability payments by the employer or the insurance carrier of the employer have ceased, the remainder of the compensation shall be paid out of the Multiple Injury Trust Fund provided for in Section 173 of this title, in periodic installments. In permanent total disability cases the same shall be paid in periodic payments, as set forth in Section 22 of this title, and shall not be commuted to a lump-sum payment. The compensation rate for permanent total awards from the Multiple Injury Trust Fund shall be the compensation rate for permanent partial disability paid by the employer in the last combinable compensable injury. Permanent total awards from the Multiple Injury Trust Fund shall be payable for a period of five (5) years or until the employee reaches sixty-five (65) years of age, whichever period is the longer. Multiple Injury Trust Fund awards shall accrue from the file date of the court order finding the claimant to be permanently and totally disabled.

385 O.S. Supp. 1994 §172(E) provided:

E. All weekly payments for permanent partial disability shall be paid before any claim for benefits against the Special Indemnity Fund may be paid. In the case of a lump-sum permanent partial disability award or settlement, such award or settlement shall be divided by seventy percent (70%) of the employee's weekly wage up to a maximum of fifty percent (50%) of the state's average weekly wage, to determine the number of weeks which must elapse before a claim against the Special Indemnity Fund may be paid.

41993 OK 14, 847 P.2d 791.

51964 OK 10, 389 P.2d 629.

6On December 12, 2000, Division 4 of this Court filed two opinions reaching the opposite conclusion. Their decision in case #94,807, Samman v. Multiple Injury Trust Fund, was released for publication. However, their decision in case #94,900, Multiple Injury Trust Fund v. Aldridge, decided and filed the same day, was not ordered to be published. Needless to say, we disagree with Division 4.