Annotate this Case

2010 OK CIV APP 9
231 P.3d 741
Case Number: 106729
Decided: 12/30/2009
Mandate Issued: 02/01/2010

ARROW TRUCKING CO., INC., and OWN RISK, Petitioners,




R. Jay McAtee, Tulsa, Oklahoma, for Petitioners
Charles J. Kania, James M. Wirth, KANIA LAW OFFICE, Tulsa, Oklahoma, for Respondent Felix M. Jimenez


¶1 Arrow Trucking Company, Inc., and Own Risk (Employer) appeal the trial court's December 31, 2008, Order in which Felix M. Jimenez (Claimant) was awarded temporary total disability payments (TTD) and permanent partial disability payments (PPD). The Order also denied Employer's request for overpayment of TTD.

¶2 Employer asserts the trial court erred by awarding Claimant 14 weeks and one day of TTD and by denying Employer's request for credit for overpayment of TTD because Claimant should only be entitled to eight weeks of TTD. We vacate the TTD award and the denial of overpayment of TTD because we find Claimant is only entitled to eight weeks of TTD pursuant to 85 O.S. Supp. 2005 § 22(3)(d).1 We direct the trial court to enter an order reflecting an overpayment of $2,477.85, the amount having been stipulated to by the parties.2


¶3 On November 12, 2007, Claimant suffered an accidental, work-related injury to his neck and back arising out of and in the course of his employment with Employer. Claimant, in his brief, does not dispute that his injuries are soft tissue injuries. Claimant underwent medical treatment, but not surgery. The record does not contain any physician's recommendation of surgery.3

¶4 In the March 4, 2008, Order, the trial court found Claimant entitled to TTD "not to exceed 52 weeks." This Order expressly reserved the "determination of underpayment and/or overpayment of temporary total disability compensation . . . for future hearing."4 The hearing on this matter occurred on December 18, 2008, for which both parties filed briefs. In its December 31, 2008, Order, from which Employer now appeals, the trial court found Claimant entitled to TTD benefits "for 14 weeks and 1 day" and denied Employer's overpayment claim.


¶5 It is well-known that a decision of the Workers' Compensation Court will not be vacated on review if it is supported by any competent evidence. Owings v. Pool Well Service, 1992 OK 159, 843 P.2d 380; Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548. Under the any competent evidence standard, this Court must simply "canvass the facts, not with an object of weighing conflicting proof to determine where the preponderance lies, but only for the purpose of ascertaining whether those facts support the tribunal's decision." Oklahoma Gas & Electric Co. v. Black, 1995 OK 38, ¶ 6, 894 P.2d 1105, 1107. (Citation omitted.) The meaning of statutory language, however, is a pure issue of law that stands before us for de novo review. Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557. Our review of the Workers' Compensation Court's legal rulings is plenary, independent and non-deferential. Id.


I. Vague or Ambiguous

¶6 Employer asserts the trial court erred by not limiting Claimant's TTD benefits to eight weeks under the unanimous opinion of the Oklahoma Supreme Court set forth in Bed Bath & Beyond, Inc. v. Bonat, 2008 OK 47, 186 P.3d 952. In Bed Bath & Beyond, Inc., the Oklahoma Supreme Court considered a first impression issue - a patent ambiguity contained in a 2005 amendment to § 22 of the Workers' Compensation Act concerning the length of time a temporarily and totally disabled worker is entitled to disability benefits for a soft tissue injury. The claimant in Bed Bath & Beyond, Inc. injured her back at work. She was treated conservatively at first, but was later recommended for surgery. The employer refused to authorize the surgery. The Oklahoma Supreme Court, analyzing 85 O.S. Supp. 2005 §§ 22(2)(c) and (3)(d), stated:5

¶7 In this case, it is undisputed that Claimant had soft tissue injuries and no surgery or surgery recommendation. As such, the trial court erred in not limiting Claimant's TTD to eight weeks.

¶8 Although Claimant asserts these statutory provisions are unconstitutionally ambiguous and vague, we note the trial court did not rule on the constitutionality of the statutes and certainly did not find the statutes unconstitutionally ambiguous or vague. The trial court, did, however, err in not limiting the TTD benefits to eight weeks.

¶9 While Claimant argues that there is "no interpretation [of the above statutory sections, § 22(2)(c) and § 22(3)(d)] that would render every part operative and therefore no interpretation can render [them] constitutional," the Bed Bath & Beyond, Inc. Court disagreed, stating that its analysis was intended "as binding authority for resolution of the ambiguity" between the two sections. Id. at ¶ 10, 186 P.3d at 955.

. . . duty-bound to give effect to legislative acts, not to amend, repeal or circumvent them. . . . [A] court is without authority to rewrite a statute merely because the legislation does not comport with the court's conception of prudent public policy.

Boston Avenue Management, Inc. v. Associated Resources, Inc.

II. Equal Protection

¶10 Claimant also disputes Employer's urging the application of Bed Bath & Beyond, Inc. to the instant appeal on the grounds that the statutory classification division between "claimants with non-surgical soft tissue injuries and all other claimants" effectuated by § 22(3)(d) "is an unconstitutional violation of equal protection." Claimant argues that such a division lacks "a rational basis."

Rational-basis scrutiny is a highly deferential standard that proscribes only that which clearly lies beyond the outer limit of a legislature's power. A statutory classification is constitutional under rational-basis scrutiny so long as there is any reasonably conceivable state of facts that could provide a rational basis for the classification. The rational-basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. For these reasons, legislative bodies are generally presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.

Gladstone v. Bartlesville Independent School District No. 30,

¶11 In determining whether § 22(3)(d) is an unconstitutional violation of equal protection "[t]he critical question is whether the classification rests upon a difference which bears a reasonable relationship to any of the goals of the Workers' Compensation Act." Rivas v. Parkland Manor,

. . . to provide compensation to covered workers for loss of earning capacity, while placing the burden of supporting injured workers on the industries responsible for those injuries. In the interest of the public good and creation of a more orderly system of compensation, the injured worker is not required to establish employer negligence in his pursuit of compensation. However, in exchange for the employer's greater and more certain exposure the Act provide[s] the employer with certain advantages. It [offers] the employer a maximum loss and [makes] the employer's liability more certain and predictable.


¶12 In sum, we look to see whether there is any reasonably conceivable state of facts that could make the classification division between claimants with non-surgical soft tissue injuries and all other claimants with soft tissue injuries reasonably related to any of the goals of the Workers' Compensation Act. We find there are. First, it is reasonable to conceive that a worker who does not have surgery performed on his/her soft tissue injury would be in less need of extended compensation. It is reasonable to conceive that a worker who does not have surgery performed suffered a soft tissue injury of lesser severity than a worker who does have surgery recommended or performed. A worker who does not have surgery, it is reasonable to conceive, would need less time to recover than a worker who does have surgery, and would, therefore, require less compensation.

¶13 Second, the classifications of surgical and non-surgical soft tissue injuries, within the vast array of soft-tissue injuries, increase the certainty and predictability of an employer's liability. Absent § 22(3)(d), the trial court could conceivably require an employer to pay between one and 300 weeks of TTD to a claimant who suffered an on-the-job soft tissue injury. Section 22(3)(d) increases the certainty and predictability of employer liability (eight weeks of TTD) as to claimants with non-surgical soft tissue injuries.

¶14 Although § 22(3)(d) may favor employers and result in some inequality between claimants with soft tissue injuries, under the highly deferential rational-basis standard of constitutional review, we find that the statutory classification is reasonably related to legitimate government goals contained in the Workers' Compensation Act and, therefore, is not an unconstitutional violation of equal protection.

III. Delegation of Judicial Power

¶15 Claimant also takes issue with Employer's assertion that Bed Bath & Beyond, Inc. be applied to this case by arguing that § 22(3)(d) is unconstitutional because it delegates judicial power "to the treating physician by arbitrarily allowing the physician's determination on surgical prospects to determine TTD status." According to Claimant, this improperly delegates judicial authority away from the court in violation of the Oklahoma Constitution

¶16 Here, however, § 22(3)(d) is not an unconstitutional delegation of judicial power because it does not predetermine adjudicative facts, but rather limits an available award, based on the facts determined by the fact-finder. The trial court is left to independently determine all factual matters, such as whether the injury was a soft tissue injury and whether surgery was actually recommended or performed. Only after determining the relevant facts must the trial court submit to the compensation limitations set forth in the statute. In other words, the TTD amounts set forth in the statute are post-fact-finding, legislative limitations. Therefore, § 22(3)(d) is not an unconstitutional delegation of judicial power.

IV. Special Legislation

¶17 As further response to Employer's urging the application of Bed Bath & Beyond, Inc. to this case, Claimant argues that § 22(3)(d) constitutes "special legislation" of a kind prohibited by Okla. Const. art. 5, § 46, which states that "[t]he Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing . . . [the] limitation of civil or criminal actions . . . ." This article, then, is "Oklahoma's constitutional prohibition against special laws limiting civil actions . . . ." Reynolds v. Porter,

¶18 In determining whether § 22(3)(d) is constitutional, we must first determine whether the statute is a "special law." Id. at ¶ 13. "A statute is a special law where a part of the entire class of similarly affected persons is separated for different treatment." Grant v. Goodyear Tire & Rubber Co.,

¶19 Claimant argues that § 22(3)(d) constitutes "special legislation" because it classifies "part of this homogeneous group as non-surgical and thereby [denies] that class the right to claim TTD benefits beyond eight (8) weeks . . . ." We disagree that this statute constitutes "special legislation." Although § 22(3)(d) separates for different treatment under the statutory benefit scheme part of the entire class of employees with soft tissue injuries, employees with soft tissue injuries do not constitute a class "of similarly affected persons." Grant, at ¶ 5, 5 P.3d at 597.

¶20 Section 22(3)(d) defines a soft tissue injury as "damage to one or more of the tissues that surround bones and joints. 'Soft tissue injury' includes, but is not limited to: sprains, strains, contusions, tendonitis, and muscle tears." From this language it is clear that the forms soft tissue injuries can take are myriad. Furthermore, the severity of such injuries can vary widely from a "strain" to "muscle tears." We disagree that those suffering from a soft tissue injury are members of a similarly affected class, and, therefore, the different treatment provided to those with soft tissue injuries requiring surgery and to those not requiring surgery does not constitute "special legislation."

¶21 Finally, even if § 22(3)(d) were found to be a "special law," it would be permissible. "For a special law to be permissible, there must be some distinctive characteristic warranting different treatment and that furnishes a practical and reasonable basis for discrimination." Grant v. Goodyear Tire & Rubber Co.,

V. Overpayment of TTD Timely Pled

¶22 Claimant asserts that Employer failed to timely plead its claim for overpayment of TTD. Claimant points out that under Rule 16(B)(2) of the Workers' Compensation Court Rules, "[u]nless excused by the Court for good cause shown, denials and affirmative defenses shall be asserted on the Form 10 or Form 10M or shall be waived." Rule 16(B)(2), Workers' Compensation Court Rules, 85 O.S. Supp. 2006, ch. 4, app. Claimant argues that Employer's failure to plead overpayment was never excused by the Court for good cause, and, therefore, it was waived. We disagree.

¶23 The March 4, 2008, Order plainly states "THAT determination of underpayment and/or overpayment of [TTD] is reserved for future hearing." Both parties filed trial briefs, several months after the Oklahoma Supreme Court issued Bed Bath & Beyond, Inc. v. Bonat, addressing the impact of that case on the issue of the length of TTD to be awarded. Claimant, in its trial brief, did not object to the trial court's consideration of the issue. At the December 18, 2008, hearing, the trial court reiterated that the issue of underpayment or overpayment was reserved in the March 4 Order. The parties even entered into a stipulation as to the amount of underpayment or overpayment, depending on the trial court's ruling on that issue. For these reasons, we find the trial court implicitly found good cause shown and that, therefore, the issue of overpayment or underpayment was not waived because not specifically set forth on Employer's Form 10.


¶24 Based on our review of the record and applicable law, we vacate the TTD award in the December 31, 2008, Order, except as to eight weeks, pursuant to


WISEMAN, V.C.J., concurs, and GOODMAN, J., concurs in result.


1 Although Employer claims in its Petition in Error that the trial court erred in awarding PPD benefits, this issue is not discussed or supported by any authority in Employer's Brief-in-chief. Rather, Employer, in its Brief-in-chief "urges this Court to find error in the award of 14 weeks and 1 day of Temporary Total Disability and the denial of a request for credit for overpayment of Temporary Total Disability as the Claimant should only be entitled to eight (8) weeks of TTD under 85 Okla. Stat. §22(3)(d). No other issue is appealed." A proposition that is unsupported by citation to any authority is considered waived and will not be considered on appeal. Rule 1.11(k)(1), Okla. Sup. Ct. Rules, 12 O.S.2001, ch. 15, app. 1; Hough v. Hough, 2004 OK 45, 92 P.3d 695.

2 Transcript of December 18, 2008, hearing (Tr.), at p. 10.

3 Claimant testified that one of his physicians, David R. Hicks, M.D., brought up the "possibility of surgery," to which Claimant responded that he was "scared of surgery." Tr., at pp. 17-18.

4 Claimant argues that this March 4, 2008, Order, awarding Claimant TTD "not to exceed 52 weeks," was determinative of the TTD issue and that Employer's failure to appeal the March 4, 2008, Order estops Employer from subsequently asserting an overpayment claim. However, the Order plainly reserves determination of underpayment and/or overpayment of TTD for future hearing. Claimant's estoppel argument has no merit.