Lekan v. P & L Fire Protection Co.

Lekan v. P & L Fire Protection Co.
1980 OK 56
609 P.2d 1289
Decided: 04/08/1980
Supreme Court of Oklahoma

LORETTA LYNN LEKAN, CLAIMANT AND SURVIVING SPOUSE OF JOHN FRANK LEKAN, III, DECEASED, CLAIMANT,
v.
P & L FIRE PROTECTION CO. AND STATE INSURANCE FUND, RESPONDENTS.

Proceeding to Review a Decision of the Workers' Compensation Court; James M. Fullerton, Judge.

¶0 Proceeding by claimant to review en banc decision of the Workers' Compensation Court limiting to $75.00 - from inception to termination - the aggregate weekly income benefits due all survivor-beneficiaries of worker killed October 13, 1978. AWARD SUSTAINED.

DeVilliers & DeVilliers by W. Rodney DeVilliers, Sr., Oklahoma City, for claimant.

Michelin DeLier, State Insurance Fund, Oklahoma City, for respondents.

OPALA, Justice:

[609 P.2d 1291]

¶1 By the 1977 amendments which established the Workers' Compensation Act effective July 1, 1978,

". . . Seventy-five Dollars ($75.00) per week beginning as of the effective date of the Workers' Compensation Act [July 1, 1978], and Ninety Dollars ($90.00) per week beginning January 1, 1979, and One Hundred Ten Dollars ($110.00) per week beginning January 1, 1980, and to sixty-six and two-thirds percent (66 2/3%) of the state's average weekly wage beginning January 1, 1981 . . ."

¶2 The eligible survivors of the worker who died October 13, 1978, received, in the aggregate, a weekly income benefit award of $75.00 - the rate for permanent total disability in effect at the time of decedent's death.

¶3 The sole question claimant presents on review is whether the quoted language in the provisions of § 22(6) should be construed as a schedule of benefits on a graduated scale or as a table of progressive rate increases with each level applicable, to the exclusion of all others, to injury or death occurring during the specific period for which it is fixed. We hold that the terms of § 22(6) afford no legislative authority for judicial application of benefit rates in excess of those prescribed by statute as a maximum in effect for the period during which injury or death occurs. The trial tribunal's order limiting the survivors' aggregate weekly income benefits to $75.00 - the maximum rate in force when death took place - is hence free from error of law.

¶4 The claim for benefits and the correlative duty to pay them are governed by the provisions of the law in effect when injury or death occurs.

¶5 Legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed. Unless a contrary intent clearly appears or is plainly expressed, the terms of amendatory acts which retain the same, or not substantially dissimilar, portions of provisions formerly in force will be accorded the construction identical to that placed upon them by preexisting case law.

¶6 On review of the pertinent part of § 22(6) here under construction we find no language or indication that would warrant a sharp break with our past pronouncements. The primary consideration in the judicial search to discover the correct meaning of a statute is the intent of the legislature. The purpose intended to be accomplished by the enactment "also claims a degree of consideration."

¶7 We find no indication in the 1977 Act of any intent to depart from the longstanding legislative policy of applying, in compensation claims, a fixed-rate regime based on the level of benefits in effect when injury or death occurs. The trial tribunal's order is accordingly sustained.

¶8 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, BARNES, SIMMS, DOOLIN and HARGRAVE, JJ., concur.

¶9 HODGES, J., dissents.

Footnotes:

1 85 O.S.Supp. 1977 § 1 ; Okla. Sess. Laws 1977, Ch. 234 § 64. All section citations in the text of this opinion are to Title 85. The word "Act" is used in reference to the 1977 Workers' Compensation Act.

2 This term is used to designate weekly benefits to a worker's eligible survivors. 85 O.S.Supp. 1977 § 22 (8).

3 85 O.S.Supp. 1977 § 22 (8)(c).

4 The last paragraph of 85 O.S.Supp. 1977 § 3.6 D provides, inter alia, that ". . . benefits for death shall be determined by the law in effect at the time of death. [emphasis added]

5 Independent School District No. 89 v. McReynolds, Okl., 528 P.2d 313, 316 [1974]; Apple v. State Insurance Fund, Okl., 540 P.2d 545, 547 [1975]; Washabaugh v. Bartlett Collins Glass Co., 177 Okl. 159, 57 P.2d 1162 [1936].

6 Special Indemnity Fund v. Michaud, Okl., 345 P.2d 891, 893 [1959]; General Electric Company v. Folsom, Okl., 332 P.2d 950, 953 [1958].

7 Independent School District No. 89 v. McReynolds, supra note 5; Caswell v. Bird, 160 Okl. 224, 16 P.2d 859 [1932].

8 Special Indemnity Fund v. Bramlett, 201 Okl. 415, 206 P.2d 972, 974 [1949]; Special Indemnity Fund v. Acuff, Okl., 383 P.2d 630, 633 [1963]; Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 [1948].

9 General Electric Company v. Folsom, supra note 6.

10 See the last paragraph of 85 O.S.Supp. 1977 § 3.6 D, supra note 4; 85 O.S.Supp. 1977 § 3.1 B; 85 O.S.Supp. 1977 § 22 (6) and (8)(c).

11 Horath v. Pierce, Okl., 506 P.2d 548, 553 [1973]; Letteer v. Conservancy District No. 30, Okl., 385 P.2d 796, 800-801 [1963]; Larkin v. Hiittenmeyer, 195 Okl. 669, 161 P.2d 749, 750-751 [1945].

12 Sheridan Oil Co. v. Superior Court of Creek County, 183 Okl. 372, 82 P.2d 832, 834 [1938].

13 Sheridan Oil Co. v. Superior Court of Creek County, supra note 12, at 834.

14 Report of the National Commission on State Workmen's Compensation Laws 19 [1972].

15 Comment by Laurence M. Huffman, Workmen's Compensation: National Commission on State Workmen's Compensation Laws: Import for Oklahoma, 26 Okla.L.Rev. 446, 448 [1973]; Honorable Chris Sturm, The Workers' Compensation Act of 1977, 3 Okla.City Univ.L.Rev. 1, 22 [1978].

16 Sturm, supra note 15 at 21.

17 Comment by Laurence M. Huffman, supra note 15 at 448.