JACKSON v. CYCLO LP GAS, INC.

JACKSON v. CYCLO LP GAS, INC.
2005 OK CIV APP 64
120 P.3d 888
Case Number: 101112
Decided: 08/19/2005
Mandate Issued: 09/16/2005
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

DANNY JACKSON, Petitioner,
v.
CYCLO LP GAS, INC., COMPSOURCE OKLAHOMA, Insurance Carrier, and THE WORKERS' COMPENSATION COURT OF OKLAHOMA, Respondents.

PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT

HONORABLE SUSAN WITT CONYERS, JUDGE

VACATED AND REMANDED

Brandon J. Burton, T. R. Banks, BURTON & ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Petitioner,
Margaret A. Bomhoff, FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, Oklahoma City, Oklahoma, for Respondents.

BAY MITCHELL:

¶1 The dispositive issue in this case is whether Claimant/Petitioner Danny Jackson filed his motion to reopen his workers' compensation claim due to change in condition within the time period prescribed by

¶2 Claimant suffered an injury to his right leg as a result of an on-the-job accident while employed by Respondent Cyclo LP Gas, Inc.

¶3 The following year, approximately one month before his prescription coverage was set to expire under the November 1997 order, Claimant filed a Form 13 request for a prehearing conference seeking extension of his continuing medical compensation and authorization for related evaluation.

¶4 Almost five years later, on April 14, 2004, Claimant filed a Form 9 motion to reopen on change of condition. Cyclo Gas moved to dismiss, arguing the applicable limitations period had expired. The trial court denied the motion to reopen, ruling Claimant filed it out of time. The court reasoned that its May 25, 1999 authorization of medical treatment was not the "last order" in the case within the meaning of

¶5 Because this case turns on whether the trial court correctly applied

¶6 "The law governing the reopening of a compensation claim upon a change of condition is that which was in effect at the time the claimant's condition underwent a change, and not the law at the time of the injury or the law in force at the time of the original award." Arrow Tool & Gauge v. Mead,

The jurisdiction of the Court to reopen any cause upon an application based upon a change in condition shall extend for that period of time measured by the maximum number of weeks that could be awarded for the particular scheduled member where the change of condition occurred . . . and unless filed within said period of time after the date of the last order, shall be forever barred. An order denying an application to reopen a claim shall not extend the period of that time set out herein for reopening the case.

Here, the parties stipulated at trial Claimant had 275 weeks within which to file a motion to reopen. Consequently, if the original PPD order, as modified nunc pro tunc on November 20, 1997, was the "last order" within the meaning of §43(C), Claimant filed his motion to reopen approximately 333 weeks later, which was out of time. If trial court's May 25,1999 authorization of medical treatment controls, the motion survives as timely filed approximately 254 weeks after the "last order" in the case.

¶7 In Arrow Tool & Gauge v. Mead,

¶8 In Arrow Tool, the Supreme Court determined an order directing the employer to provide a vocational rehabilitation evaluation for claimant was the last order in the case for purposes of §43(C), not the original PPD order.

¶9 In Gratzer v. Happy Foods,

¶10 In contrast, the order at issue in Fleming v. Owens Illinois, Inc.,

¶11 Which brings us to the facts in the case at bar. The original PPD award, as corrected nunc pro tunc on November 20, 1997, required Cyclo Gas to furnish Jackson "with continuing medical care limited to medications (Daypro) to maintain the Claimant's orthopedic injuries for a period not to exceed one (1) year without further Order of the Court. Said benefit to be provided by DR. GRIFFIN." (Emphasis added). The May 25, 1999 order directed Cyclo Gas to provide Claimant "with medication (Daypro or other form), including examination needed to provide same, by Dr. James L. Griffin until otherwise ordered by the Court." (Emphasis added).

¶12 Cyclo Gas argues the nature of the benefits awarded by the original PPD did not change with the May 25, 1999 order because Claimant was entitled to continued medical maintenance in the form of prescription medication prescribed by Dr. Griffin both before and after the May 25, 1999 authorization of medical treatment. Claimant disagrees, arguing that the May 25, 1999 order both extended a time-limited award that was set to expire and included an entirely new benefit, namely, requiring Cyclo Gas to provide for Jackson's examinations with Dr. Griffin.

¶13 We find the May 25, 1999 order substantially affected "the range of monetary, medical, or rehabilitative benefits conferrable by the workers' compensation law," Arrow Tool, ¶18, 16 P.3d at 1126, and was thus the last order in the case for purposes of §43(C). The fact that the trial court did not expand the nature of the benefit awarded in the May 25, 1999 order in any manner other than by extending its duration is not fatal to Claimant's cause. Certainly, the range of benefits awarded under workers' compensation law includes their duration. Indeed, had the trial court not issued its May 25, 1999 authorization of medical treatment, Claimant's post-award prescription drug coverage would have terminated in November 1998 by terms of the trial court's original PPD order. The May 25, 1999 order, which continued the prescription drug coverage indefinitely, thus substantially affected the range of Claimant's medical benefits. Accordingly, it is that order, and not the original PPD, which qualifies as the last order in the case within the meaning of §43(C) and triggered the running of the applicable limitations period. It follows that Claimant timely filed his motion to reopen in this case.

¶14 For these reasons, we VACATE the opinion of the trial court and REMAND for further action consistent with this opinion.

¶15 VACATED and REMANDED.

ADAMS, P.J., and BELL, J., concur.

FOOTNOTES

1 Unless otherwise indicated, all further references to Respondent Cyclo LP Gas, Inc. include its insurer, Compsource Oklahoma.

2 The November 12, 1997 order, corrected by an order nunc pro tunc dated November 20, 1997, found Claimant sustained an injury to his right leg only on March 17, 1994 while working for Cyclo Gas and that, as a result of said injury, Claimant had 23% PPD to the right leg, as well as a consequential injury due to overuse syndrome resulting in 14% PPD to the left leg (over and above a pre-existing 10% PPD to the left leg).

3 Claimant first filed the Form 13 on October 14, 1998; he refiled on November 9, 1999.

4 The Supreme Court declined to consider whether an order denying commutation of the original award, entered on the same day as the order awarding a vocational rehabilitation examination, would qualify as the last order in the case.