Benning v. Pennwell Pub. Co.

Annotate this Case

Benning v. Pennwell Pub. Co.
1994 OK 113
885 P.2d 652
65 OBJ 3352
Case Number: 79980
Decided: 10/18/1994
Modified: 11/01/1994
Supreme Court of Oklahoma


On Certiorari to the Court of Appeals, Division IV.

¶0 Claimant before the Workers' Compensation Court asserted his neck injury was related to lower-back trauma from an on-the-job accident for which he received temporary total disability. Characterizing his From 9 plea as but a belated "amendment" to the 1988 Form 3, the employer interposed the statutory two-year time bar. The trial judge allowed the employee additional compensation, "modifying" the earlier order to include the neck injury. A three-judge panel vacated the trial judge's order, ruling that the employee's quest was time-barred. The Court of Appeals reversed the panel's decision. On certiorari previously granted.


Anthony M. Laizure, Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, Tulsa, for petitioners.

Paul V. McGivern Jr., Ronald E. Hignight, McGivern, Scott, Gilliard, Curthoys & Robinson, Tulsa, for respondents.

OPALA, Justice.

[885 P.2d 653]

¶1 The single issue presented on certiorari is: Was the review panel's [panel] critical conclusion of law responsive to the dispositive issue of fact formed in the evidentiary proceeding before the trial judge of the Workers' Compensation Court? We answer in the negative. Because of the panel's failure to address the pivotal question of fact by a definite ruling susceptible of judicial interpretation, the claim must be remanded for resolution to be effected by requisite findings and conclusions.



¶2 Jack Benning's [Benning, claimant, employee or worker] eight-year employment with Pennwell Publishing Company [Pennwell or employer] ended on December 1, 1987. On March 18, 1988 Benning timely filed2 Form 33 listing an injury to his lower back caused by "repetitive lifting." In his November 8, 1988 order the trial judge ruled (after a hearing) that (1) the claimant sustained lower back injury from repeated trauma suffered on the job, (2) the last date of his exposure was December 1, 1987, (3) he remains temporarily totally disabled, (4) the claimant is entitled to continuing temporary total disability payments (up to a total of 150 weeks), and (5) a determination of permanent disability must be deferred.

¶3 On October 3, 1991 Benning filed Form 9.4 He sought medical treatment upon the alleged recurrence of his healing period and temporary total disability brought about by a change of condition, i.e., a neck (or cervical) injury5 that manifested itself after the claimant's last prior award - November 8, 1988.6 According to the claimant he first advised [885 P.2d 654] Dr. C of his neck problems7 in 1989 but did not begin to receive treatment to the cervical area until 1991.8 In July 1991 Benning underwent a bone fusion to correct a herniated disc in his neck. Following a February 6, 1992 hearing the trial judge ruled that the cervical complaint "relates back" to the 1987 lower back injury.9 This finding formed the evidentiary foundation for a § 28 proceeding.

¶4 The employer appealed, arguing alternatively before the review panel that Benning's October 3, 1991 Form 9 quest was barred (1) because his cervical injury stems from the finally-settled 1985 back injury10 or (2) because the claimant, who became aware of his neck problems during the two-year period for filing a claim, failed to amend his Form 3 before that interval had expired.11

¶5 By its July 6, 1992 decision the panel vacated the trial judge's order, ruling that the neck-injury claim was "barred" by limitations without specifying whether it applied the two-year statute for filing an original claim (§ 43A) or that which deals with § 28 reopening claims (§ 43 C). The panel's order is devoid of any specific findings of fact addressing Benning's quest for relief for his neck injury. Claimant then sought appellate review. Vacating the panel's decision the Court of Appeals held that the trial judge did not abuse his discretion in allowing the neck injury to be added. The appellate court applied the relation-back doctrine to conclude the Form 3 amendment was timely. We granted certiorari and now vacate the Court of Appeals' decision and the panel's order, remanding the claim for further proceedings not inconsistent with today's pronouncement.



¶6 While the panel's review of the trial tribunal's findings is governed by a clear-weight-of-the-evidence test,



¶7 The Workers' Compensation Court is required to make specific findings of the ultimate facts responsive to the issues formed by the evidence as well as conclusions of law upon which its order is to be rested.15 When these elements are not present in a panel's order or are too vague and uncertain for judicial interpretation, we will not hypothesize about the evidence upon which the trial tribunal may have relied to arrive at its decision.16

¶8 Here, the review panel failed to make any factual finding concerning the critical nexus, if any there was, of Benning's after-manifested pathology in the cervical spine either to (a) his earlier, finally settled 1985 back injury or to (b) his 1987 lower-back accident and, if the latter apply, then to the recurrence of the healing period. The panel's order is facially reflective of the confusion introduced into the decisional process by the employer's specious argument that the claimant can have no relief because his Form 3 would have to undergo an untimely amendment. This, of course, gave incorrect primacy to a question of law, where in reality that primacy was commanded by a question of fact - i.e., whether, since the last prior order claimant's condition had undergone a change causally connected to the on-the-job accident for which his compensation claim was brought. In short, the critical issue dispositive of the § 28 proceeding in this case was not the amendability of the claimant's Form 3 but the sufficiency of his evidence to support a § 28 reopening. The panel's rejection of the trial judge's findings of fact [that claimant underwent a compensable change of condition] and its simultaneous declaration that the § 28 quest is time-barred demonstrates the confused order in which the issues to be resolved were placed.



¶9 It is the employer's argument that a claimant, who has filed Form 3 for an on-the-job accident but later undergoes a changed condition attributable to that injury, must amend Form 3 within the two-year statutory period or be forever barred from compensation. If this analysis were legally correct, it would render nugatory all the provisions of § 43 C which plainly authorize a reopening claim whenever there is a changed condition which (a) unfolds itself to the expert after the last prior award and (b) increases disability or brings about the recurrence of claimant's healing period. Section 43 C

¶10 Claimant's evidence is consistent solely with a § 28 reopening theory.20 If Benning succeeds in ascribing the after-manifested pathology of his cervical spine to the 1987 lower-back injury,21 his Form 9 plea is to be dealt with as a § 28 quest for additional compensation.22 The panel's specific finding of fact on this threshold issue is imperative. If it be resolved in favor of the claimant, the timeliness of the reopening claim under § 43 C might be in issue. If it be found that the facts adduced do not support a compensable change of condition since the last prior order, there will be no need for a legal conclusion on the limitations issue.

¶11 Although the witnesses do not agree on the exact date Benning first reported his cervical injury, it is clear that the need for medical attention to his neck first became apparent after the last award of 1988.23 When an after-manifested24 condition is shown to the tribunal's satisfaction to be medically related to an on-the-job injury and increases disability or triggers recurrence of the healing period, it affords a tenable legal basis for additional relief.25 Here, compensability for the claimant's changed condition does not depend on the timeliness of a Form 3 amendment but rather upon the timeliness of a § 28 reopening claim measured by § 43 C.

[885 P.2d 657]



¶12 Because the panel's conclusion of law is not responsive to the primary, dispositive and controlling issue of fact developed on Benning's Form 9 quest before the trial judge, the claim must be remanded for re-examination into the presence of a causal nexus between Benning's claimed neck condition and his two previous back injuries. The panel may, in its discretion, either (1) recanvass the transcribed evidence to determine if it would support a finding that the claimant's after-manifested cervical pathology does relate to his 1987 accident and if the changed condition did occasion the claimed recurrence of healing period; if its answer be in the affirmative, the panel should then measure timeliness by the applicable § 43 C time bar or (2) the panel may remand the claim to the trial judge with directions to re-inquire into the critical fact and law issues formed in the 1992 hearing.

¶13 There is incongruity between the panel's general rejection of the trial judge's findings of a compensable change in the claimant's condition and its accompanying conclusion of law which rests the rejection on an unspecified time bar that has no support in the record. In short, the panel's decision is too vague for judicial interpretation.26 On certiorari previously granted,



¶15 SIMMS and HODGES, JJ., dissent.


1 The trial judge, who correctly perceived Benning's quest to be a § 28 reopening claim, made the required findings of fact. The review panel, on the other hand, which concluded the claimant's Form 9 plea was time-barred, failed to make a conclusion of law that would address itself specifically to the pertinent statutory time limit for reopening proceedings.

2 The time for filing Form 3 is prescribed by 85 O.S. 1991 § 43 A. Its pertinent terms provide:

"The right to claim compensation under the Workers' Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers' Compensation Court. Provided however, a claim may be filed within two (2) years of the last payment of any compensation or remuneration paid in lieu of compensation or medical treatment which was authorized by the employer or the insurance carrier. Provided further however, with respect to disease or injury caused by repeated trauma causally connected with employment, a claim may be filed within two (2) years of the date of last trauma or hazardous exposure. . . ."

3 Form 3, the Employee's First Notice of Accidental Injury and Claim for Compensation, initiates the claim process.

4 Form 9, titled Motion to Set Trial, contains a line calling for "any material amendments to the Form 3." Claimant inserted in this line the following: "Nature of Injury: Herniated disc neck - Parts of body injured: neck".

5 Claimant's neck injury was believed to be a ruptured cervical disc, C6-7, on the left side of his neck. See Deposition of Dr. C taken on June 5, 1991, p. 21.

6 The trial transcript is clear that Benning did not experience any complaints with his neck until after the November 1, 1988 hearing on his Form 3 claim. See Trial Transcript, p. 13.

7 Benning described waking up in the middle of the night with his third and fourth fingers numb. He noted that half of his arm and part of his head would tingle. Because Benning initially noticed these symptoms when recovering from his last lower-back surgery, he thought they were related to his recovery [wearing braces]. Sometime after the third operation [circa 1989], the claimant started having headaches and experiencing pain in his neck. He stated that he could think of nothing, other than his work for Pennwell, to which he could relate his neck complaints. See Trial Transcript, pp. 19-21.

8 Dr. C's records reflect that Benning made no mention of neck pain until January 9, 1991. See Deposition of Dr. C dated June 5, 1991, Joint Exhibit No. 1. pp. 9-13.

9 See the trial judge's order dated February 21, 1992.

10 The 1987 harmful event is separate and distinct from the on-the-job injury Benning suffered in 1985. In 1985 claimant had injured his lower back. That injury, which required surgery, was settled by joint petition order for $12,325. Benning then returned to work. There is some evidence connecting the neck injury, here in issue, with the settled 1985 claim rather than with the later lower-back injury of 1987. Since the 1985 injury settlement is final, that claim cannot be reopened. Bill Hodges Truck Co. v. Gillum, Okl., 774 P.2d 1063, 1066 (1989); Hondo Petroleum Company v. Piearcy, Okl., 376 P.2d 1012, 1015 (1962); Capitol Well Servicing Company v. Levesey, Okl., 371 P.2d 905, 910 (1962).

11 In support of its latter argument the employer mistakenly relies upon Hambley v. Foster Wheeler Corporation, Okl., 395 P.2d 582 (1964). In Hambley the claimant knew of both a leg and back injury before he filed his Form 3 but listed only the leg injury. After the expiration of the limitation period for filing or amending a claim, but before an award was made, Hambley sought to change his Form 3 to add the back injury. The amendment was held time-barred by the one-year limitation then in force, 85 O.S. 1961 § 43 . Id. at 583-84. Here, neither claimant nor his physician knew of the cervical spine injury when Form 3 was filed on March 18, 1988. It was after the date of Benning's last prior award [November 8, 1988] that the neck injury came to manifest itself. See infra note 25 for a discussion of after-manifested conditions.

12 85 O.S. 1991 § 3.6 A.

13 Owings v. Pool Well Service, Okl., 843 P.2d 380, 382-383 (1992); Lacy v. Schlumberger Well Service, Okl., 839 P.2d 157, 160 (1992); York v. Burgess-Norton Mfg. Co., Okl., 803 P.2d 697, 699 (1990); Parks v. Norman Mun. Hosp., Okl., 684 P.2d 548, 549 (1984); Graves v. Safeway Stores, Inc., Okl., 653 P.2d 1236, 1238 (1982); Standish Pipe Line Co. v. Kirkland, 188 Okla. 248, 107 P.2d 1024, 1025 (1940);Barnes v. Indian Territory Illuminating Co., 170 Okla. 520, 41 P.2d 633, 635 (1935).

14 Carpenter v. Douglas Aircraft Company, Okl., 420 P.2d 911, 912 syl. 2 (1966); Leffler v. McPherson Brothers Transport, Okl., 396 P.2d 491, 493 (1964).

15 Carpenter, supra note 14 at 912; Leffler, supra note 14 at 493; Wiles v. City of Stroud, Okl., 395 P.2d 404, 406 (1964).

16 Brookshire v. Knippers Plumbing Company, Okl., 390 P.2d 887, 889 (1964).

17 The pertinent terms of 85 O.S. 1991 § 43 C are:

"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 weeks that could be awarded for the particular scheduled member where the change of condition occurred, or for three hundred (300) weeks in the case of injuries to the body or injuries not otherwise scheduled under the provisions of Section 22 of this title, and unless filed within the said period of time after the date of the last order, shall be forever barred." [Emphasis added.]

18 For the pertinent terms of 85 O.S. 1991 § 43 A see supra note 2.

19 The filing period for a § 28 reopening claim, prescribed by § 43 C, is for injuries unscheduled by 85 O.S. 1991 § 22 , See supra note 17 for the terms of § 43 C.

20 Reynolds v. Special Indemn. Fund, Okl., 725 P.2d 1265, 1270 (1986), teaches that if in a public-law controversy the aggrieved party advances the wrong theory or reason for reversal, the reviewing court is free to grant corrective relief on any applicable theory chosen sua sponte - i.e., a theory that (a) is legally invocable to correct a pressed decisional error manifested by the record on appeal, (b) was neither advanced below nor on appeal and (c) is dispositive of the public-law controversy. See Simpson v. Dixon, Okl., 853 P.2d 176, 187 (1993); First Federal Sav. and Loan v. Nath, Okl., 839 P.2d 1336, 1343 n. 35 (1992); In the Matter of McNeely, Okl., 734 P.2d 1294, 1296 (1987); Burdick v. Independent School Dist., Okl., 702 P.2d 48, 54 (1985); McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 n. 11 (1982). Reynolds recognizes that issues in a workers' compensation proceeding are of "public interest." Special Indemnity Fund v. Reynolds. Okl., 188 P.2d 841, 842 (1948).

21 See Hodges, supra note 10 at 1068-69. There it was established that a claimant must produce competent evidence of a causal nexus between the compensation sought by his § 28 reopening claim and the compensable harm attributable to the accidental injury - i.e., that the changed condition is a legitimate consequence of the industrial injury. See also Deep Rock Oil Corp. v. Anthony, 161 Okl. 128, 17 P.2d 400, 401 (1932) [syl. § 1].

22 The pertinent terms of 85 O.S. 1991 § 28 are:

"Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the Court may at any time review any award, and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum and minimum provided in the Worker's Compensation Act, and shall state its conclusions of fact and rulings of law, and the Administrator shall immediately send to the parties a copy of the award. No such review shall effect such awards as regards any money already paid. . . ." [Emphasis added.]

23 Nuway Laundry Company v. Hacker, Okl., 396 P.2d 659, 664 (1964); Wade Lahar Construction Company v. Howell, Okl., 376 P.2d 221, 225 (1962).

24 The hearing for the 1987 back injury was in November 1988. Because Benning was not aware of the neck injury until the next year, he could not have raised the cervical condition at the original hearing. His neck injury was hence after-manifested. See Levescy, supra note 10 at 906, 909.

25 A change in condition may be established by a pathology not fully ascertainable at the time of the original on-the-job injury hearing. If the changed condition was not known or knowable because it was not clinically or medically ascertainable at the time of the last prior award, a § 28 reopening claim for recurrence of the healing period and for further temporary total disability is sustainable. See Nuway Laundry Company, supra note 23 at 663; Terry v. Lee C. Moore Corporation, Okl., 382 P.2d 446, 449 (1963); Levescy, supra note 10 at 909; El Reno Trailers v. House, Okl., 372 P.2d 224, 225 (1962); Wade Lahar Construction Company, supra note 23 at 224; Oklahoma Gas & Electric v. State Industrial Court. Okl., 366 P.2d 609, 613 (1961).

26 We cannot tell whether the claim was denied because the panel (1) viewed Form 3 as no longer amendable or (2) found claimant's evidence unpersuasive.