SPECIAL INDEMNITY FUND v. MICKEY

SPECIAL INDEMNITY FUND v. MICKEY
1977 OK 38
563 P.2d 123
Decided: 03/01/1977
Supreme Court of Oklahoma

SPECIAL INDEMNITY FUND, PETITIONER,
v.
DONALD E. MICKEY AND THE STATE INDUSTRIAL COURT, RESPONDENTS.

¶0 Original proceeding brought by Special Indemnity Fund to review award affirmed en banc awarding claimant benefits against the Fund as a physically impaired person; Thomas H. Gudgel, Jr., Trial Judge.

AWARD SUSTAINED.

Sam Hill, Richard G. Mason, Oklahoma City, for petitioner.

John M. Baum, Guy A. Secor, Oklahoma City, for respondents.

DOOLIN, Justice.

[563 P.2d 124]

¶1 Claimant, Mickey, was a long time employee of Blackwell Zinc Company. His last day of employment was October 10, 1974. He filed a Form 3 on November 25, 1974, alleging pulmonary fibrosis resulting from inhalation and contact with deleterious substances. His claim was settled on February 3, 1975 by a joint petition which found claimant sustained an occupational disease while employed by Blackwell Zinc Co., the date of last exposure being October 10, 1974.

¶2 At the time of this award claimant had pending a claim for compensation arising out of an injury to his back, sustained October 2, 1974, for which he was later awarded compensation. On December 11, 1975, claimant filed an amended Form 3 asking for supplementary benefits from the Special Indemnity Fund (Fund) as a physically impaired person because of the previous back injury. At the hearing Fund stipulated that at the time of the injury to claimant's lungs he was a physically impaired person as defined in 85 O.S. 1971 § 171 . The trial court awarded claimant $5,125.00 compensation against the Fund, which was affirmed en banc on appeal.

¶3 Fund seeks review by this court claiming: (1) Fund was not a party to the joint petition settlement against Blackwell Zinc and should not be bound by court's finding that claimant suffered an occupation disease rather than an injury, and (2) the State Industrial Court erred in applying the eighteen months statute of limitations

¶4 Fund's allegations of error are not valid. An award based on a joint petition settlement is no different from any final award of the State Industrial Court and constitutes a judicial determination of [563 P.2d 125] facts.

¶5 In AMF Tubescope Company v. Hatchel, 547 P.2d 374 (Okl. 1976) we held 85 O.S. 1971 § 24 provides a claim must be filed for compensation for an occupational disease within eighteen months from the date of the last hazardous exposure. Section 24 was applied rather than the one year statute of limitations prescribed by 85 O.S. 1971 § 43 .

¶6 There is no specific statute of limitations spelled out in our statutes creating and controlling the Special Indemnity Fund.

¶7 The State Industrial Court properly awarded compensation to claimant as a previously impaired person, by reason of his previous back injury and adjudicated disabilities resulting from an occupational disease. This claim against Fund, being filed within eighteen months of date of last hazardous exposure, was not barred by the statute of limitations.

¶8 AWARD SUSTAINED.

¶9 HODGES, C.J., and BERRY, BARNES and SIMMS, JJ., concur.

¶10 LAVENDER, V.C.J., and WILLIAMS and IRWIN, JJ., concur in result.

Footnotes:

1 85 O.S. 1971 § 24

2 85 O.S. 1971 § 43

3 Black, Sivalls & Bryson v. Bass, 506 P.2d 902 (Okl. 1973).

4 85 O.S. 1971 § 171 et seq. as amended.

5 Levi v. Special Indemnity Fund, 389 P.2d 620 (Okl. 1964).

6 Special Indemnity Fund v. Hulse, 441 P.2d 366 (Okl. 1968).