Batt v. Special Indemnity Fund

1993 OK 163, 865 P.2d 1244, 65 O.B.A.J. 40, 1993 Okla. LEXIS 189, 1993 WL 527413
CourtSupreme Court of Oklahoma
DecidedDecember 21, 1993
Docket78427
StatusPublished
Cited by15 cases

This text of 1993 OK 163 (Batt v. Special Indemnity Fund) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Batt v. Special Indemnity Fund, 1993 OK 163, 865 P.2d 1244, 65 O.B.A.J. 40, 1993 Okla. LEXIS 189, 1993 WL 527413 (Okla. 1993).

Opinions

LAVENDER, Vice Chief Justice.

The question presented is whether the attorney’s fee portion of an award made

1. Now 85 O.S.1991, § 172(B) and Supp.1992. from the Special Indemnity Fund abates upon the death of the Employee where the Special Indemnity Statute 85 O.S.1981, § 172(C) (renumbered as 85 O.S.1991, § 172(D)) states “[ajwards from the Special Indemnity Fund shall abate upon the death, from any cause, of the employee.” We hold that according to the law in effect at the time of injury, Attorney’s fee abated as part of Employee’s award.

FACTS AND PROCEDURAL HISTORY

Respondent attorney Joe Farnan (Attorney) represented Lucille E. Batt (Employee) in a compensation claim for an injury Employee incurred at her place of employment. The injury occurred in February 1986 when Employee was 63 years old. Employee filed a claim in March 1986. In December 1988, the Workers’ Compensation Court found that Employee was a previously physically impaired person. The court combined all prior injuries with the current injury and found her to be permanently and totally disabled. The court ordered Petitioner Special Indemnity Fund (Fund) to pay Employee $163.00 per week for five years or until Employee reached age 65 whichever period came later, according to 85 O.S.1981, § 172(B).1 The court ordered that every 5th weekly payment of $163.00, not to exceed 500 weeks, would be paid to the Attorney instead of to the Employee.

The Employee died in December 1989. The Fund discontinued payments to the Employee and stopped paying the Attorney as well. The Attorney filed a motion asking the Workers’ Compensation Court to order the Fund to continue paying the attorney’s fee. Attorney contended that the Fund wrongly ceased payments to him and that only payments to the Employee abated at her death. The court held that the attorney’s fee awarded to the Attorney was part and parcel of the award to the Employee and therefore abated upon her death. Upon Attorney’s request, a panel of three Workers’ Compensation Court judges reviewed Attorney’s claim. The three [1246]*1246judge panel denied Attorney’s claim for his attorney’s fee past the date of the Employee’s death.

The Court of Appeals sustained the judgment of the Workers’ Compensation Court. On rehearing, however, the court vacated the Workers’ Compensation Court three judge panel and remanded the matter with instructions citing a 1992 amendment to 85 O.S. 1991, § 30. The amendment added the sentence “[t]he right to any such attorney fee shall be vested at the time the award therefor becomes final.” The court found this amendment dispositive, although it was not in effect at the time the award become final.

ANALYSIS

The Court of Appeals held that the Attorney’s fee award was independent of the Employee’s award and based its holding on Oklahoma Dep’t of Transp. v. Barnes2 and Chamberlain v. American Airlines.3 Both these cases cover issues involving conversion of attorneys’ fees to lump sums from awards made other than against the Fund. However, in Barnes the court recognizes that attorneys’ fees are deducted from the employee’s award, evidencing there is only one award made. Likewise, in Chamberlain we noted that “attorney fees are to be paid from the claimant’s award.”4

In Chamberlain we held that the commutation of attorney fees to a lump sum is mandatory if there is an award made for permanent total disability.5 However, since neither case addresses the statutes governing the Special Indemnity Fund, and since Attorney in the instant case has plainly stated he is not seeking a lump sum payment, the cases are not dispositive.

The Court of Appeals also relied on Taylor v. Special Indem. Fund6 where we held that 85 O.S.1981, § 30 regarding attorneys’ fees in workers’ compensation awards controls over 85 O.S.1981, § 172 as to the method of payment of attorney fees. In Taylor we held that “attorney fees after an award from the Fund must be paid in a lump sum.” 7 Here again, Taylor is not dispositive, because Attorney is not requesting a lump sum award. In fact Attorney concedes he did not appeal from the method of payment decided by the Workers’ Compensation Court, i.e., $163.00 every fifth week for five years or until Employee reached the age of 65, whichever period came later.

The Court of Appeals next relied on a 1992 amendment to 85 O.S.1991, § 30 which [1247]*1247states, “[t]he right to any such attorney fee shall be vested at the time the award therefor becomes final.”8 The court reasoned that the amendment explains what was previously intended and that it clarifies attorney’s right as to fees. However, the Fund contends that the new language in section 30 is the Legislature’s response to Chamberlain and Taylor (see notes 5 and 7 herein) where we made lump sum awards to attorneys in permanent total disability cases mandatory. The Fund maintains that the new language taken in context is intended to correct those holdings.

Claims for legal fees for permanent total disability awards shall be paid periodically ... until the attorney fee is satisfied. The right to any such attorney fee shall be vested at the time the award therefor becomes final. 85 O.S.1992 Supp., § 30.

Whatever the implications of the 1992 amendment, because the language was not in effect at the time of Employee’s injury, it does not govern the case at hand. The law in effect at the time of an employee’s injury controls in workers’ compensation matters.9 “A compensation claim is controlled by the laws in existence at the time of injury and not by laws enacted thereafter. ... No subsequent amendment can operate retrospectively to affect in any way the rights and obligations which are fixed.”10 We note that 85 O.S.1981, § 3.6(D) of the Workers’ Compensation statutes provides, “[bjenefits for any injury shall be determined by the law in effect at the time of injury....”

Since the injury to the Employee in the instant case occurred in 1986, the workers’ compensation statutes in force at that time governs the dispute. The applicable statute for making an award against the Fund is 85 O.S.1981, § 172.11 Section 172(C) states:

Awards from the Special Indemnity Fund shall abate upon the death, from any cause, of the employee.

Section 172 is silent on attorney fees. In Taylor we noted that section 30 speaks to attorneys’ fees and does not distinguish among awards against employers, insurance carriers, and the Fund.12 However, section 30 is also silent as to the status of attorneys’ awards at the death of the employee. Section 41, though, contains two abate provisions referring to an employee’s death. Section 41(A) states in regard to awards made for permanent partial disability:

In case of the death of a claimant due to causes other than his accidental personal injury or occupational disease at any time before satisfaction or payment of the total award is made, the award shall not abate, but shall be revived in favor of the persons determined by the Court to be entitled thereto. 85 O.S.1981, § 41(A).

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Batt v. Special Indemnity Fund
1993 OK 163 (Supreme Court of Oklahoma, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
1993 OK 163, 865 P.2d 1244, 65 O.B.A.J. 40, 1993 Okla. LEXIS 189, 1993 WL 527413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/batt-v-special-indemnity-fund-okla-1993.