SAMMAN v. MULTIPLE INJURY TRUST FUND

SAMMAN v. MULTIPLE INJURY TRUST FUND
2001 OK 71
33 P.3d 302
72 OBJ 2703
Case Number: 94807
Decided: 09/18/2001
Mandate Issued: 10/12/2001

THE SUPREME COURT OF THE STATE OF OKLAHOMA

LARRY SAMMAN, Petitioner
v.
MULTIPLE INJURY TRUST FUND, and THE WORKERS' COMPENSATION COURT, Respondents

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV

Honorable Ozella M. Willis, Trial Judge

¶0 Larry Samman [Samman or claimant], a previously physically-impaired person, suffered a later work-related injury on August 18, 1992 for which he was awarded permanent partial disability [PPD]. Here he seeks enforcement of a Workers' Compensation Court [WCC] October 10, 1996 order which (1) acknowledges his earlier April 25, 1990 28.90% PPD; (2) recognizes the later August 1992 injury in which he sustained 60.8% PPD, (3) finds combination of the two injuries renders him permanently and totally disabled, and (4) orders the Special Indemnity Fund [Fund] to pay him a specified weekly benefit for the longer of five years or until he reaches the age of sixty-five (65) "beginning with the date of filing of this Order". By a May 26, 2000 order the WCC vacated the October 1996 order to the extent it ruled the Fund had to pay Samman weekly permanent total disability [PTD] payments from October 10, 1996. Samman appealed. The Court of Civil Appeals [COCA] vacated the May 2000 order, holding

THE COURT OF CIVIL APPEALS' OPINION IS VACATED
AND THE WORKERS' COMPENSATION COURT'S
MAY 26, 2000 ORDER IS SUSTAINED.

Philip D. Ryan of Boettcher, Ryan & Martin, Oklahoma City, OK, for the petitioner.
Georgiana Peterson and Gregory J. Crawford of Pray, Walker, Jackman, Williamson & Marlar, Oklahoma City, OK, for the Multiple Injury Trust Fund.

Lavender, J.

¶1 To resolve today's cause the Court must ascertain whether the trial judge in her October 10, 1996 order which established liability against respondent, the Special Indemnity Fund [now the Multiple Injury Trust Fund (Fund)], exceeded the Workers' Compensation Court's [WCC] jurisdiction because her order provided that permanent total disability [PTD] payments due Larry Samman [claimant or Samman] would accrue from the order's filing date rather than the date the employer concluded making permanent partial disability [PPD] payments to the claimant. We hold the trial judge was correct when (by a May 26, 2000 order) she decided the October 1996 order - to the extent that it expanded the Fund's liability for PTD - was facially void under the terms of

I
FACTS AND PROCEDURAL HISTORY

¶2 The parties do not contest that as of April 25, 1990 Samman had suffered 28.90% PPD to the body as a whole as a result of an on-the-job injury. When he suffered a later work-related injury in August 1992 while apparently working for another employer, claimant by virtue of his previous work-related injury was a "physically-impaired person" under the provisions of the Special Indemnity Fund Act.

¶3 On October 10, 1996 the WCC determined that as a consequence of the two injuries Samman is permanently and totally disabled. The October 1996 order awarded him PTD of $185.00 per week for five years or until he reached the age of sixty-five (65) years whichever is longer. The order further provides:

"THAT beginning with the date of filing of this Order, respondent [Fund] is ordered to pay compensation to claimant at the rate of $185.00 per week as stated in the above paragraph (less attorney fee)." [Emphasis added.]

It is what legal effect should be accorded the italicized language which is at the heart of today's appeal.

¶4 In 2000 Samman sought to have Fund pay him (in a lump sum) an amount equal to the ordered PTD rate times the number of weeks for which his second employer paid him PPD after the October 10, 1996 order's filing. This sum, he argued, was to be in addition to, and not in diminution of, the weekly payments which he was to receive for PTD after his second employer made its final PPD payment. Samman reasoned that he was entitled to the accrued lump sum under the terms of

¶5 The WCC, in its May 2000 order, rejected claimant's argument(s) and found that the October 1996 order was facially void to the extent it (a) required accrual of PTD payments from its filing date to the date when the second employer or its insurer concluded making PPD payments and (b) could be construed to mandate a lump-sum payment of the same. Samman appealed.

¶6 The COCA vacated the WCC's May 2000 order. In so doing it held: (1)

¶7 Fund then sought certiorari which was granted.

II
STANDARD OF REVIEW

¶8 In the instant cause the Court is called upon to assess whether the WCC's jurisdiction was properly invoked to determine if the October 1996 order's terms comported with then applicable statutory standards or were facially void. Today's case involves the WCC's jurisdictional boundaries when it considers the Fund's liability to a claimant and, necessarily, implicates statutory interpretation because the Fund's liability is legislatively set. The standard of review employed when jurisdiction is in question was succinctly stated in Stidham, supra, as follows: "[o]nce an issue is identified as jurisdictional, it calls for a de novo review."

III

THE TRIAL COURT'S OCTOBER 10, 1996 ORDER IS FACIALLY
VOID INSOFAR AS IT EXPANDS THE FUND'S LIABILITY TO PAY
PTD BEYOND WHAT WAS STATUTORILY MANDATED AT THE
TIME OF THE CLAIMANT'S LAST COMPENSABLE INJURY

¶9 Samman - by way of a March 8, 2000 Form 13 - sought an order requiring Fund to pay him an amount equal to $185.00 (his weekly PTD rate) times the number of weeks which had elapsed between October 10, 1996 and February 2000 (the month during [33 P.3d 306] which he received his last PPD payment from his employer). Fund made no PTD payments to him for this time period. Claimant's quest for additional monies was denied when the WCC ruled in May 2000 that the provision in its earlier order (requiring PTD payments to begin on the date the order was filed) was void as it did not comport with the Fund's statute-made liability as of the time of the claimant's last compensable injury.7 Samman mistakenly relies upon the rule adopted in Ferguson v. Ferguson Motor Co., 1988 OK 137, 766 P.2d 335, to support his position that the October 10, 1996 order was not subject to collateral attack since Fund did not timely bring an appeal from its terms. Ferguson holds that an erroneous finding in a WCC's order that is not detectable from the decision's four corners is safe from collateral vacatur when a timely appeal has not been sought. Here, the complained-of error is facially apparent upon an inspection of the WCC proceedings, i.e., observable in the order's enunciated terms when viewed in conjunction with the entire WCC record of the proceedings (the functional equivalent of a district-court judgment roll).

¶10 The Stidham analysis8 is conclusive of the issue whether the WCC had jurisdiction to enter its May 2000 order which ruled the earlier (October 1996) order was facially void to the extent that it provided that PTD payments were to begin upon the memorial's filing. The pertinent terms of 85 O.S.1991 § 172 - which (a) were the effective law at the time of Samman's last compensable injury and (b) address the Fund's liability when separate, multiple on-the-job injuries result in permanent and total disability - provide as follows:

"B. The employer shall be liable only for the degree of percent of disability which would have resulted from the latter injury if there had been no preexisting impairment. After payments by the employer or his insurance carrier have ceased, the remainder of such compensation shall be paid out of the Special Indemnity Fund . . . in periodic installments. In permanent total disability cases the same shall be paid in periodic payments . . . and shall not be commuted to a lump-sum payment. [Emphasis added.]

This provision sets the outer limits of the Fund's liability for payment of PTD and as such represents the boundaries of the WCC's jurisdiction when it determines a claimant's entitlement to PTD and the Fund's obligation to pay the same.

¶11 According the above statutory language its plain and ordinary meaning9 Also, the Court understands the word "shall" as used in 85 O.S.1991 § 172(B) to mean "must". This is so because the word "shall" is usually given its common meaning of "must", implying a command or mandate [See Hess v. Excise Bd. of McCurtain County, 1985 OK 28, 698 P.2d 930, 932], subject, of course, to the obvious caveat that a different legislative intent is somehow signified by the context in which the word "shall" is used [See State v. Hunt, 1955 OK 125, 286 P.2d 1088, 1090-1091] or doing so was shown to be inconsistent with the overall intent of the statutory scheme under consideration. We find nothing within the statutory scheme detailing the Fund's liability that shows anything other than that Fund payments shall be paid out periodically only after employer/insurance carrier payments have ceased and that the Fund liability shall not be commuted to a lump-sum payment. leads to a single, inescapable conclusion, i.e., the Fund's liability to make PTD payments can only be satisfied through periodic installments which can begin only after the employer's final PPD payment. Under the law applicable at the time of Samman's last compensable injury, a WCC order - that directs accrual of PTD payments while the last employer is making PPD payments and/or then orders a lump-sum payment of these so-called accrued PTD benefits from the Fund - is outside the WCC's jurisdiction. Hence, that provision of the WCC's October 1996 order which required the Fund's PTD payments begin with the October 10, 1996 [33 P.3d 307] order's filing was facially void under the teaching of Stidham, supra and beyond the power of the WCC to enter.10

IV
BECAUSE THE 1999 AMENDMENT OF 85 O.S.1991 § 172(B)
DOES NOT REPRESENT A CLARIFICATION OF EARLIER LAW
AND IS NOT ACCORDED RETROSPECTIVE APPLICATION BY
EXPRESS STATUTORY LANGUAGE, IT MAY NOT BE RETROACTIVELY APPLIED11

¶12 Claimant asserts in the alternative that even if it were to be found that the trial court was vested with the power to declare facially void that part of the October 10, 1996 order which allowed him to receive PTD payments from its filing date, the result which he seeks is still available under the terms of

¶13 The primary goal of statutory construction is to ascertain and follow legislative intention.

¶14 Resolution of the issue presented by claimant's alternate argument requires the Court to examine the meaning of

¶15 Sans ambiguity - which today we find does not exist - in the 1991 version of § 172(B), the 1999 amendment of the same cannot be said to have been enacted by the Legislature to clarify the earlier law.

V
SUMMARY

¶16 Claimant today seeks to impose upon Fund liability for the payment of PTD from the filing date of the order adjudicating him permanently and totally disabled. He predicates his quest on alternate theories: (1) that the WCC was without power to declare facially void that part of its earlier order which directed PTD payments begin with the order's filing or (2) that

¶17 The WCC's October 10, 1996 order - to the extent it extended the Fund's liability for PTD payments beyond the outer limits established by the terms of

¶18 Lastly, because we conclude the 1991 version of § 172 - insofar as it sets the limits of the Fund's liability - is clear and unambiguous, the 1999 amendment of § 172(B)

¶19 On certiorari previously granted,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE WORKERS' COMPENSATION COURT'S MAY 26, 2000 ORDER IS SUSTAINED.

¶20 HARGRAVE, C.J., HODGES, LAVENDER, OPALA, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur.

¶21 KAUGER, J., concurs in part; dissents in part.

¶22 WATT, V.C.J., dissents.

FOOTNOTES

1See infra page for the relevant terms of 85 O.S.1991 § 172.

285 O.S.1991 § 171 et seq., as amended.

3The relevant provisions of 85 O.S.Supp.1999 §172(B) are:

"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." [Emphasis added.]

4Stidham v. Special Indemnity Fund, 2000 OK 33, ¶10, 10 P.3d 880, 885. In Stidham at 2000 OK 33, ¶11, 10 P.3d at 886, the Court also observed:

"The sweep of powers assigned to the Workers' Compensation Court tracks precisely the perimeter drawn by legislatively established boundaries for the [Special Indemnity] Fund's obligation, leaving the trial tribunal with no excess authority. In short, judicial power over the Fund's obligation extends no farther than the very boundary of the Fund's statute-imposed liability." [Emphasis added.]

5Arrow Tool & Gauge v.Mead, 2000 OK 86, ¶6, 16 P.3d 1120, 1122-23. See also Baptist Medical Center v. Pruett, 1999 OK CIV APP 39, ¶11, 978 P.2d 1005, 1008, where it was held:

"Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling."

6Neil Acquisition L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100, 1103 n. 1.

7See Special Indemnity Fund v. Archer, 1993 OK 14, 847 P.2d 791, 794-95, where the Court held that the law in effect at the time of a worker's later injury is to be used in fixing the Fund's liability.

8See supra, note 4.

9See Oldham v. Drummond Bd. of Ed. of Ind. School Dist., 1975 OK 147, 542 P.2d 1309, 1311, where the Court held that when a statute's language is plain and unambiguous, no room exists for construction of its language.

10Stidham, supra note 4 at 885. Approximately two (2) years before our pronouncement in Stidham v. Special Indemnity Fund, 2000 OK 33, 10 P.3d 880, the Court of Civil Appeals (COCA) issued an opinion in Special Indemnity Fund v. Maples, 1998 OK CIV APP 157, 968 P.2d 839. The Maples decision appears to contradict the jurisdictional ruling of Stidham, reiterated today. To the extent Special Indemnity Fund v. Maples (as to the jurisdictional issue) is contrary to the holdings of Stidham and our pronouncement here, that opinion is overruled.

11Three decisions of the COCA [two from Division 1 and one from Division 2] are generally contrary to the COCA decision in the instant case. These cases hold that the 1999 amended version of § 172 does not retroactively apply when a claimant's last compensable injury occurs before the amendment's effective date. See Multiple Injury Trust Fund v. Hill, 2001 OK CIV APP 8, 16 P.3d 1143; Fry v. Multiple Injury Trust Fund, 2000 OK CIV APP 129, 16 P.3d 1132; Spurgin v. Multiple Injury Trust Fund, 2000 OK CIV APP 85, 10 P.3d 240.

12For the relevant provisions of 85 O.S.Supp.1999 § 172(B), see supra note 3.

13Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Com'n, 1988 OK 117, 764 P.2d 172, 179.

14Bruner v. Sobel, 1998 OK 60, ¶9, 961 P.2d 815, 817.

15City of Tulsa v. Public Employees Relations Board, 1998 OK 92, ¶14, 967 P.2d 1214, 1220.

16Polymer Fabricating, Inc. v. Employers Workers' Compensation Association, 1998 OK 113, ¶15 n. 18, 980 P.2d 109, 114.

17Id.

18See Archer, supra note 7 at 795 n. 5.

19Polymer Fabricating, supra note 16 at 114.

20For the statutory language in issue, see supra page .

21Even if the Court were to accept that construction of the last sentence of 85 O.S.Supp.1999 § 172(B) which is sought by the claimant today, we could not give the 1999 amendment retroactive application because the earlier (1991 version) law is clear and unambiguous.

22For the relevant provisions of 85 O.S.1991 § 172(B), see supra page 6 (¶10).