MULTIPLE INJ. TRUST FUND v. PULLUM

MULTIPLE INJ. TRUST FUND v. PULLUM
2001 OK 115
37 P.3d 899
72 OBJ 3695
Case Number: 95834
Decided: 12/11/2001
Mandate Issued: 01/11/2002

THE SUPREME COURT OF THE STATE OF OKLAHOMA

MULTIPLE INJURY TRUST FUND, Petitioner
v.
ELIZABETH ANN PULLUM and THE WORKERS' COMPENSATION COURT, Respondents

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV;

APPEAL FROM ORDER OF THREE-JUDGE PANEL OF OKLAHOMA WORKERS' COMPENSATION COURT.

HONORABLE RICHARD G. MASON, TRIAL JUDGE

¶0 Claimant, a physically impaired person by virtue of prior on-the-job injuries, suffered a later work-related injury in 1998 for which she sought permanent partial disability (PPD) benefits from her employer and its insurer. The PPD claim was settled by joint petition and paid in a lump sum. She then sought permanent total disability (PTD) benefits from the Multiple Injury Trust Fund (Fund). Finding combination of the injuries rendered her permanently totally disabled, a Workers' Compensation Court (WCC) trial judge awarded PTD benefits and ordered Fund to begin making weekly PTD payments immediately, i.e. from the PTD order's filing date. A WCC three-judge panel partially vacated the trial judge's order. The panel ruled a certain number of weeks had to elapse from the PPD joint petition settlement date before Fund was to begin weekly PTD payments, but also seemed to conclude PTD benefits would "accrue" from the date of their order. Fund appealed. The Court of Civil Appeals (COCA) sustained the panel's order, essentially ruling a 1999 amendment to

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS' OPINION VACATED;
THREE-JUDGE PANEL ORDER VACATED AND MATTER REMANDED
TO WORKERS' COMPENSATION COURT.

Georgiana Peterson of Pray, Walker, Jackman, Williamson & Marlar, Oklahoma City, Oklahoma, for petitioner, Multiple Injury Trust Fund.
Brandon J. Burton of Gravitt & Burton, Oklahoma City, Oklahoma, for respondent Elizabeth Ann Pullum.

Lavender, J.

¶1 Today's cause requires us to decide whether a Workers' Compensation Court (WCC) three-judge panel erred in ruling permanent total disability (PTD) benefits awarded to Elizabeth Ann Pullum (Pullum or claimant) from the Multiple Injury Trust Fund (Fund)

PART I. FACTS AND PROCEDURAL HISTORY.

¶2 It is uncontested that when claimant suffered her last work-related injury on or about August 25, 1998, she was considered a "physically-impaired person" under the Special Indemnity Fund Act (Act)

¶3 In a November 2000 order the WCC trial judge ruled that combination of the previously adjudicated on-the-job injuries and the 1998 injury did render her permanently totally disabled.

¶4 Fund appealed the trial judge's order to a WCC three-judge panel contending, in essence,

¶5 The COCA sustained the panel's order. It basically held: (1) 1999 legislative amendment of § 172, including addition of the following last sentence to § 172(B), "Multiple Injury Trust Fund awards accrue from the file date of the court order finding the claimant to be permanently and totally disabled[]", authorized "accrual" of PTD payments from the time claimant was adjudicated totally disabled (i.e. the date of the PTD order) to the date the lapse-time period ended; (2) the 1999 amended version, as opposed to showing legislative intent to change

¶6 Before the COCA claimant relied on the further amendment of § 172 in 2000 to support her view she was, indeed, entitled to PTD benefits from the date of the panel's order. The COCA did not rely on the 2000 amendment of § 172 in reaching its decision, but the amendment had become effective (May 26, 2000) before either the trial judge or the three-judge panel reached their respective decisions.

¶7 As indicated in Barnhill v. Multiple Injury Trust Fund, supra,

PART II. STANDARD OF REVIEW.

¶8 The issues here are legal ones concerning the statutory liability of Fund. Statutory interpretation is called for which requires a de novo review standard, i.e. a review in which an appellate court has plenary, independent and non-deferential authority to reexamine a trial court's legal rulings. Barnhill,

PART III. NEITHER THE 1999 AMENDMENT OF § 172 NOR ITS AMENDMENT IN 2000 WERE INTENDED TO HAVE RETROACTIVE SWEEP SO AS TO ALLOW FOR "ACCRUAL" OF PTD BENEFITS DURING THE APPLICABLE LAPSE-TIME PERIOD WHERE THE LAST COMPENSABLE INJURY OCCURRED DURING THE EFFECTIVENESS OF THE 1995 VERSION OF § 172.

¶9 The general rule is that the law in effect at the time of an employee's later/subsequent job-related injury is to be used in fixing Fund's liability. Barnhill,

¶10 In that the 1995 version of § 172 so plainly expressed legislative intent, Barnhill rejected [consistent with our earlier rejection in Samman v. Multiple Injury Trust Fund,

¶11 Pullum points to the following underlined language to § 172(B) which was added to the subsection by amendment in 2000:

1. For actions in which the subsequent injury occurred before June 1, 2000, if such combined disabilities constitute permanent total disability, as defined in Section 3 of this title, then the employee shall receive full compensation as 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 may be paid in periodic payments, as set forth in Section 22 of this title, or may be commuted to a lump-sum payment, by agreement of the claimant and the Multiple Injury Trust Fund. 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.

She asserts the additional language expresses legislative intent to make the last sentence of subsection (B)(1), added by the Legislature in 1999, retroactive or applicable to her situation even though her last compensable injury occurred during the effectiveness of the 1995 version of § 172. We disagree.

¶12 At the same time the "June 1, 2000" language was added to § 172(B), the Legislature added a completely new provision to the statutory scheme when separate, multiple on-the-job injuries result in PTD. Added by the 2000 legislation was § 172(B)(2) which provides:

2. For actions in which the subsequent injury occurred on or after June 1, 2000, if such combined disabilities constitute permanent total disability, as defined in Section 3 of this title, then the claimant shall receive full compensation as now provided by law for the disability resulting directly and specifically from the subsequent injury. In addition, the claimant 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 for the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment and for any material increase resulting from the combination of such injuries. Payment for the degree of disability resulting from the material increase in disability resulting from the combination of injuries may be paid in periodic installments or may be commuted to a lump-sum payment upon agreement of the claimant and the employer or insurance carrier for the employer. The compensation rate for permanent total awards resulting from a combination of injuries shall be the compensation rate for permanent partial disability paid by the employer in the last combinable compensable injury. Permanent total awards resulting from a material increase in disability resulting from a combination of injuries shall be payable for a period of fifteen (15) years or until the claimant reaches sixty-five (65) years of age, whichever period is the longer. Such awards shall be paid from the date the court order finding the claimant to be permanently and totally disabled is filed.

¶13 As can be seen, the new provision dictates that when the subsequent injury occurs "on or after June 1, 2000" it is the last employer, rather than Fund, that is responsible for any increased disability resulting from combination of the last job-related injury and any preexisting impairment. In our view, the addition of the "June 1, 2000" date was necessary to set the boundary between continued Fund liability for PTD benefits and employer liability. In other words, it was intended to delineate the demarcation line whereby in regard to injuries occurring on or after the specified date Fund would have no liability at all in PTD cases. We recognized this legislative purpose in Autry v. Multiple Injury Trust Fund,

¶14 Further, as in Barnhill, were we to afford retroactive sweep to the 1999 amendment with the meaning ascribed by the COCA and the WCC three-judge panel, Pullum would be entitled to increased PTD benefits from Fund over that to which she was entitled under the 1995 version of § 172. Pursuant to the panel's order of January 19, 2001, the ninety-one (91) weeks required to run from the PPD joint petition settlement date (February 2, 2000) would expire (i.e. end) on or about November 1, 2001. Yet, the panel ruled benefits would "accrue" or be owed from the date of the panel's order (January 19), approximately an additional nine and one-half months of benefits. Thus, affording the amendment retroactive sweep with the meaning given by the COCA (and the three-judge panel) would substantively increase Fund's ultimate liability to Pullum.

¶15 Contrary to Pullum's assertion, the change made to § 172(B) in 2000 does not definitively express a legislative intent as it pertains to the lapse-time period applicable to her PTD award against Fund to afford the earlier 1999 amendment retrospective force. If the Legislature meant to retroactively alter the PTD liability of Fund as that liability was so clearly delineated under the language of

PART IV. THE WCC THREE-JUDGE PANEL ALSO ERRED IN CONCLUDING THE LAPSE-TIME PERIOD OF

¶16 In Multiple Injury Trust Fund v. McGary, 2001 OK CIV APP 68, 24 P.3d 896, Division I of the COCA held the lapse-time period mandated by 85 O.S. Supp. 1995, § 172(E) was intended by the Legislature to begin running from the last date TTD was paid by the employer or its insurer in relation to the last compensable injury, rather than from the date of the PPD joint petition settlement for said injury. In this case, the three-judge panel decided the period ran from the latter date. McGary properly analyzed the issue and, thus, the panel also erred in such regard.

¶17 As McGary correctly recognized, where a claimant suffers TTD (the healing period) followed by PPD, the right to payment of benefits for PPD arises when payments for TTD end. McGary, 2001 OK CIV APP 68, at ¶10, 24 P.3d at 899. An award for PPD does not become effective until expiration of the period of TTD. Briscoe Const. Co. v. Listerman, 1933 OK 198, 20 P.2d 560 Third Syllabus by the Court. Since the lapse-time period of the 1995 version of § 172(E) evinced a legislative intent to treat Fund claimant's alike by providing a temporal equivalent period of time to elapse in lump-sum joint petition PPD settlement situations as would pass or run when the employer/insurer responsible for paying PPD benefits for the last job-related injury did so in periodic weekly payments it is obvious to us, as it was to the COCA in McGary, that Fund's liability to pay is triggered by the fulfillment of the last employer's PPD obligation either by periodic or lump-sum payment. McGary, 2001 OK CIV APP 68, at ¶11, 24 P.3d at 899-900. To hold otherwise would treat Fund claimants accepting settlement of their last-injury PPD claims in a lump sum differently than those who receive weekly PPD payments from the last employer. Id. Therefore, in a situation controlled by the 1995 version of § 172(B) and (E) the lapse-time period should begin running with reference to the date the last employer paid TTD benefits. McGary, 2001 OK CIV APP 68, at ¶11-12, 24 P.3d at 899-900.

¶18 In the instant case, the February 2000 joint petition settlement indicates Pullum suffered TTD from September 11 to November 8, 1998 and from April 22 to July 29, 1999 as a result of her August 1998 injury. It would, thus, appear the lapse-time period of ninety-one (91) weeks should have begun running from the July 1999 date, which would result in commencement of Fund liability for PTD benefit payments at the end of April of 2001, rather than the start of November 2001 [ninety-one (91) weeks from joint petition settlement date]. However, because the issue of the proper beginning date for the lapse-time period has been raised by this Court in an effort to properly delineate Fund's statutory liability to this claimant and the parties have not heretofore raised the issue or, apparently considered any factual questions that may be involved with it, rather than set the date ourselves, we deem it more appropriate for the issue to be taken up in the WCC on remand.

PART V. SUMMARY.

¶19 The statute that set Fund's liability to claimant for PTD benefits was the one in effect on the date of her last job-related injury, 85 O.S. Supp. 1995, § 172. That law mandated a statutorily-prescribed/formula-based lapse-time period before Fund was responsible for commencing periodic PTD benefit payments to her, a period that should have been ordered to commence running from the last date claimant's employer or its insurer paid her for TTD. The three-judge panel erred in allowing for the "accrual" or "build-up" of PTD benefits from the date of its order and the COCA erred in sustaining the panel's prder. Neither the 1999 amendment of § 172, nor its further amendment in 2000, can be said to have retroactive sweep, so as to substantively increase Fund's liability to this claimant as that liability was delineated under the law in effect when she suffered her last compensable injury in August 1998.13

¶20 The Court of Civil Appeals' opinion is VACATED. The Workers' Compensation Court three-judge panel order of January 19, 2001 is VACATED and this matter is REMANDED TO THE WORKERS' COMPENSATION COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

¶22 WATT, V.C.J., KAUGER and BOUDREAU, JJ., concur in result.

FOOTNOTES

B. If such combined disabilities constitute [PTD], as now defined by the Workers' Compensation Act, then the employee shall receive full compensation as now provided by law for the disability resulting directly and specifically from such subsequent injury. In addition, the employee shall receive full compensation for his 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 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 [] Fund . . . in periodic installments. In [PTD] 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 [] Fund shall be the compensation rate for [PPD] paid by the employer in the last combinable compensable injury. Permanent total awards from the [] 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.

E. All weekly payments for [PPD] shall be paid before any claim for benefits against the [] Fund may be paid. In the case of a lump-sum [PPD] 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 [] Fund may be paid.

B. If such combined disabilities constitute [PTD], 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 per cent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment. After all [PPD] payments by the employer or the insurance carrier of the employer have ceased, the remainder of the compensation shall be paid out of the [] Fund provided for in Section 173 of this title, in periodic installments. In [PTD] 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 [] Fund shall be the compensation rate for [PPD] paid by the employer in the last combinable compensable injury. Permanent total awards from the [] 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. [] Fund awards shall accrue from the file date of the court order finding the claimant to be permanently and totally disabled.

"Reopening any prior injury claim other than the last employer injury claim shall not give a claimant the right to additional [] Fund benefits. All weekly payments by the last employer or the insurance carrier of the employer for [PPD] shall be paid before any claim for benefits against the [] Fund may be paid."