Hodges v. Hodges Electric & Air Conditioning, Inc.

2003 OK CIV APP 54, 72 P.3d 57, 2003 WL 21380655
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 25, 2008
DocketNo. 97,835
StatusPublished
Cited by2 cases

This text of 2003 OK CIV APP 54 (Hodges v. Hodges Electric & Air Conditioning, Inc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hodges v. Hodges Electric & Air Conditioning, Inc., 2003 OK CIV APP 54, 72 P.3d 57, 2003 WL 21380655 (Okla. Ct. App. 2008).

Opinion

Opinion By

TOM COLBERT, Vice Chief Judge:

T1 Claimant, Eddie Ray Hodges, seeks this court's review of an order of the workers' compensation court's three-judge panel vacating the trial court's order. The panel awarded Claimant additional temporary total disability (TTD) benefits as well as permanent partial disability (PPD) benefits and apportioned the liability for those benefits between Employer, Hodges Electric & Air Conditioning, Inc., (Employer/No Insurance) and Employer's insurance carrier, Comp-source Oklahoma (Employer/Compsource). The issues on review are whether the panel had authority to apportion the liability for the benefits and whether the order is supported by competent evidence. We answer in the affirmative and sustain -the panel's order.

T2 Claimant, an electrician, was the primary stockholder of Employer, a now-defunct corporation. On January 14, 1998, after Employer's operations were suspended, Claimant filed a claim for workers' compensation benefits for cumulative trauma injury [59]*59to his knees, shoulders, and body as a whole with a last date of exposure of December 31, 1997.

T3 Claimant initially named Farmers Insurance Group as Employer's workers' compensation insurance provider and then added Compsource. Farmers was ultimately dismissed because Claimant "had no aggravating injurious exposure to his knees during the period of insurance coverage [August 1, 1997, through December 31, 1997] for Farmers." 1 Compsource, which insured Employer from February 2, 1996, through May 14, 1997, was left as the only insurance provider. The parties stipulated that Employer had no workers' compensation insurance coverage from January 1, 1996, through February 1, 1996, and from May 14, 1997, through August 4, 1997.

T4 In an order dated December 1, 2000, the workers' compensation trial court concluded that Claimant suffered a work-related injury to his knees, but not to his shoulders, and temporarily set Claimant's TTD compensation rate at $81.08 per week. In an order nune pro tune dated December 19, 2000, the court awarded Claimant TTD for 48 weeks and 4 days to be paid by Compsource, sub-jeet to reimbursement from other responsible parties. Claimant subsequently requested PPD and underpayment of TTD and requested that the trial court consider his compensation rate. Following a trial, the trial court entered its order on January 7, 2002, awarding Claimant PPD, determining his compensation rate for TTD to be $81.08 per week, and apportioning the PPD between Employer/Compsource and Employer/No Insurance.

T5 Claimant appealed to a three-judge panel, which vacated the trial court's order. The panel denied Claimant's claim for injury to his shoulders, but found that he had sustained a work-related injury due to cumulative trauma to his knees. The panel determined that Claimant's knee injury resulted in 21.86% PPD to the right leg (over and above 16.65% pre-existing disability) and 154% PPD to the left leg (over and above 28.1% pre-existing disability). The panel also determined that Claimant's wages established a rate of compensation of $140 per week for TTD and PPD and that Claimant was entitled to an additional two weeks of TTD for the period when he had knee replacement surgery. Finally, the panel apportioned the award, concluding that Employer/Comp-source was liable for one additional week of TTD, 9.26% PPD to Claimant's right leg, and 7.17% PPD to his left leg, leaving Employer/No Insurance liable for the remaining week of additional TTD, 12.6% PPD to his right leg, and 7.7% PPD to his left leg.

16 Claimant now seeks this Court's review. He claims the panel exceeded its authority by apportioning the award between Employer/No - Insurance and - Employer/Compsource. He also contends that portions of the panel's order are not supported by competent evidence.

STANDARDS OF REVIEW

17 Claimant's assertion that the panel lacked authority to apportion his award between Employer/No Insurance and Employer/ Compsource raises a question of law, which we review de novo. Ibarra v. Hitch Farms, 2002 OK 41, 4, 48 P.3d 802, 808-04. The remainder of Claimant's assertions raise issues of fact, for which we employ the any-competent-evidence - standard of - review. Parks v. Norman Mun. Hosp., 1984 OK 58, 12, 684 P.2d 548, 5492 In applying this standard, we review the facts, not to determine where the preponderance lies, but only to determine whether the panel's decision is supported by any competent evidence. Id. at " 12, 684 P.2d at 552.

DISCUSSION

T8 This claim is complicated in two ways: First, Claimant was the majority stockholder [60]*60of Employer, a now-defunct corporation, and Claimant did not receive an hourly or regular wage. Second, Compsource was Employer's insurance provider for only part of the period at issue: February 2, 1996, through May 14, 1997. Employer had no workers' compensation insurance coverage from January 1, 1996, through February 1, 1996, and from May 14, 1997, through August 4, 1997.

I

T9 The first issue we must consider is Claimant's assertion that the panel erred as a matter of law in apportioning the disability between Employer/No Insurance and Employer/Compsource. Claimant argues that a judgment was entered against Employer/No Insurance without it having entered an appearance or being represented by counsel. 3 He also argues that the panel did not have jurisdiction to apportion liability for benefits between two respondents.

T10 In making this argument, Claimant is attempting to wear two hats, taking off one or the other whenever it serves. First, Claimant did not bring this proceeding as Employer/No Insurance's representative, but, instead, brought it against Employer as an individual employee. If Claimant is only Employer's employee, then he is not the real party in interest to raise Employer/No Insurance's interests here. See James Energy Co. v. HCG Energy Corp., 1992 OK 117, ¶4, 847 P.2d 333, 388. If Claimant is serving as Employer/No Insurance's representative and is, therefore, the proper party to raise this argument, he waived it by not objecting at the trial court level to Employer/Compsource's request for apportionment, although the record clearly demonstrates that apportionment was at issue. Davis v. Med. Arts Lab., 1998 OK CIV APP 1, 17, 952 P.2d 52, 54. Furthermore, Claimant's argument that Employer/No Insurance had no notice of its potential liability is belied by the Form 2-"Employer's First Notice of Injury," filed on February 9, 1998, and signed by Claimant in his capacity as Employer's president.

T11 Claimant's argument that the panel exceeded its jurisdiction by apportioning benefits between the two respondents is also without merit. This is, essentially, an apportionment between two insurance carriers, because Employer/No Insurance was effectively self-insured during those times when it carried no workers' compensation insurance. Such apportionment by the workers' compensation court is clearly contemplated by 85 0.9.2001 § 203 of the workers' compensation statutes and has been expressly approved by the Oklahoma Supreme Court. SW. United Indus. v. Polston, 1998 OK 78, ¶ 8, 964 P.2d 210, 212.

112 Claimant relies on Red Rock Mental Health v. Roberts, 1997 OK 188, 116, 940 P.2d 486

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2003 OK CIV APP 54, 72 P.3d 57, 2003 WL 21380655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodges-v-hodges-electric-air-conditioning-inc-oklacivapp-2008.