VALENTI v. SPEC. INDEMNITY FUND

VALENTI v. SPEC. INDEMNITY FUND
2000 OK CIV APP 81
8 P.3d 197
71 OBJ 1828
Case Number: 93909
Decided: 05/19/2000
Mandate Issued: 06/23/2000

FRANKIE VALENTI, Petitioner
v.
SPECIAL INDEMNITY FUND and THE WORKERS' COMPENSATION COURT, Respondents

PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT

HONORABLE JERRY L. SALYER, JUDGE

SUSTAINED

Michael E. Utter, Oklahoma City, Oklahoma, for Petitioner,
Georgiana Peterson, Oklahoma City, Oklahoma, for Respondents.

OPINION

HANSEN, VCJ

¶1 In February and April of 1977, Claimant, Frankie Valenti, sustained on-the-job injuries. As a result of these injuries, he received 20% permanent partial disability to the body as a whole. On February 2, 1985 and February 8, 1985, he sustained other on-the-job injuries. As a result of these injuries, he received 41.7% permanent partial disability to the body as a whole.

¶2 In December 1992, the trial court entered an order finding Claimant was permanently totally disabled as a result of the combination of these injuries. Claimant was awarded benefits of $163.00 per week to be paid by Respondent, Special Indemnity Fund (Fund). These benefits were paid to Claimant until 1999.

¶3 In 1993, the Legislature amended

¶4 Claimant filed a Form 13, Request for Prehearing Conference, requesting a hearing on the issue of the method of payment of his benefits by the Fund. On November 1, 1999, the trial court entered an order denying Claimant's assertion that §22(13)(B) does not apply in this case because his injuries predated the passage of that statute. Claimant seeks review of this order.

¶5 Claimant argues §22(13)(b) does not apply to him because all of his injuries and the date of adjudication occurred before the enactment of subsection 13(b). He cites this Court to the rule of law which provides the right to worker's compensation benefits and the obligation to pay such benefits are vested and become fixed by law at the time of the injury. A claimant's right to compensation is determined by laws in force when the injury is sustained, notwithstanding subsequent amendments to the law. Lee Way Motor Freight, Inc., v. Wilson,

¶6 By way of analogy, Claimant points out the method of payment of attorney fees is also determined by the date of injury. A statutory change in the method of payment cannot be applied retroactively. See Ailey v. D & B Construction Co.,

¶7 However, in the Ailey case, application of the statutory amendments would have affected the amount claimant would receive each period. The claimant had a substantive, vested right not to have his award decelerated by such amendments. The amendments were not merely procedural, affecting only a method of payment.

¶8 Claimant's benefits are vested. He does not argue his benefits will be decelerated by application of §22(13)(b). Just for the time he is incarcerated, these benefits will be directed to the Department of Corrections, rather than to Claimant, to pay the costs of his incarceration.

¶9 Claimant's request for appeal-related attorney fees is denied.

¶10 ADAMS, J., and JOPLIN, J., concur.

FOOTNOTES

1On February 28, 2000, the Supreme Court denied Fund's motion to dismiss this appeal for "absence of an appealable order."

2In the Ailey case, the trial court ordered benefits paid as of May 1992, setting the benefits at the maximum allowable on December 23, 1987, the date of last injurious exposure. The trial court order also directed attorney fees be paid periodically at the rate of 20% of each weekly check to the claimant. However, in 1987, in Chamberlain v. American Airlines, 1987 OK 62, 740 P.2d 717, the Supreme Court interpreted the Worker's Compensation Act to require that attorney fees awarded in permanent total disability cases be commuted to a lump sum and recover from a claimant at the rate of 10% from each periodic payment. Then in September 1992, 85 O.S. 1992 Supp. §30 was amended to prohibit an award of lump sum attorney fees in permanent total disability cases and to mandate that legal fees be paid periodically at a rate of 20% of each weekly check to the claimant. It further mandated the right to any such attorney fee shall be vested at the time the award becomes final. This Court held the claimant had a substantive, vested right not to have payment of his award decelerated by the amendatory increase in the withholding rate to periodically pay attorney fees.

3Portions of the Ailey case were subsequently overruled by Special Indemnity Fund v. Weber, 1995 OK 43, 895 P.2d 292. The overruled portion of the Ailey opinion held that amendments to 85 O.S. 1991 §173, which increased the claimant's contribution to the Fund from 3% to 5%, reduced the amount of the claimant's award and was a substantive change in his vested rights. In Weber, the Supreme Court held that §173, which imposes a particular rate of permanent disability benefits as contributions for the Fund, is a tax statute, and because the successful injured worker and the compensation insurer are taxpayers within the provisions of §173, they have no vested rights to pay the tax pursuant to a particular tax scheme. Taxpayers must pay the tax pursuant to the law in effect at the time of the taxable event, not the rate in effect at the time of the compensable injury. The decision in the Weber case does not affect the applicability of Ailey, supra, to the present case.

4Claimant refers this Court to 85 O.S. 1999 Supp. §48, which provides that benefits shall not be assigned except as provided by the Worker's Compensation Act. However, Claimant never claims he assigned his benefits to the Department of Corrections. His benefits are only diverted to an account to pay his costs of incarceration during the time he is incarcerated.