Miville v. Special Indemnity Fund

Miville v. Special Indemnity Fund
1997 OK CIV APP 72
949 P.2d 687
68 OBJ 3911
Case Number: 89345
Decided: 11/20/1997

ROLAND MIVILLE,

HONORABLE NOMA GURICH, JUDGE

SUSTAINED

Fred L. Boettcher, Walt Brune, Ponca City, Oklahoma,

Larry E. Joplin, Judge

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¶7The Oklahoma Supreme Court has consistently held "the law in effect at the time of the subsequent injury is the law to be used in fixing the liability of the Fund. (Footnote omitted.) (Citations omitted.)" Archer, 847 P.2d at 794-795. Accord, Batt v. Special Indem. Fund, 1993 OK 163, 865 P.2d 1244; Special Indem. Fund v. Choate, 1993 OK 15, 847 P.2d 796. The Legislature having failed to express any intent to give the subsequent amendment to §171 retrospective effect, Claimant may not take advantage thereof. Under the law in effect at the time of Claimant's subsequent injury, the trial court's determination of Claimant's pre-existing unadjudicated disability contemporaneously with the adjudication of disability arising from Claimant's latest injury did not constitute a disability "previously ... adjudged and determined" as to establish Claimant as a "previously impaired person" as that term was then defined by §171. Carson, 852 P.2d at 159. Having failed to establish himself as a "previously impaired person" as contemplated by §171 then in effect, Claimant thus had no right to compensation from the Fund under §172 for any increased disability arising from the combination of his pre-existing unadjudicated disability and the disability arising from his subsequent injury. The trial court in essence so held, and we find the trial court's judgment free of vitiating legal error.

The order of the trial court is therefore SUSTAINED.

HANSEN, P.J., dissents; BUETTNER, J., concurs.

FOOTNOTES

1That is, a finding made pursuant to J.C. Penney Co. v. Crumby, 584 P.2d 1325 (Okla.1978), and commonly referred to as a "Crumby finding."

2See, footnote 1.