Mays Plus, Inc. v. Ennis

2006 OK CIV APP 59, 135 P.3d 839, 2006 Okla. Civ. App. LEXIS 26, 2006 WL 1320748
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 3, 2006
DocketNo. 102,642
StatusPublished
Cited by4 cases

This text of 2006 OK CIV APP 59 (Mays Plus, Inc. v. Ennis) 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
Mays Plus, Inc. v. Ennis, 2006 OK CIV APP 59, 135 P.3d 839, 2006 Okla. Civ. App. LEXIS 26, 2006 WL 1320748 (Okla. Ct. App. 2006).

Opinion

Opinion by

CAROL M. HANSEN, Judge:

¶ 1 Petitioners, Mays Plus, Inc. and American Home Assurance Company (collectively Employer), seek review of a Workers’ Compensation Court (WCC) order which, inter alia, found Respondent, Anna Ennis (Claimant) was in need of continuing medical maintenance. We hold there was no error of law in a three-judge panel allowing relief requested in a supplemental appeal filed more than ten days after the trial court’s order. Because the order is supported by competent evidence, we sustain.

¶ 2 Employer admitted Claimant sustained a compensable injury and provided temporary total disability benefits. The matter was tried in the WCC in November 2004. The issues tried were permanent partial disability, continuing medical maintenance, vocational evaluation, and reimbursement of lodging expenses incurred while receiving medical treatment. As parts of the order filed March 21, 2005, the trial court, as relevant here, awarded lodging reimbursement of $76.23 and denied Claimant’s request for continuing medical maintenance.

¶ 3 Claimant filed her Appeal to the Court En Banc on March 31, 2005. Claimant appealed only paragraph five of the trial court’s order because it “did not address all the issues or consider all of the evidence pertaining to Claimant’s request for reimbursement of expenses including lodging, mileage, and/or prescriptions.” On June 10, 2005, before Claimant’s appeal was heard by the three-judge panel, she filed a Supplemental Appeal to the Court En Banc. In this “supplemental” appeal, Claimant asserted the trial court erred in not approving her request for medical maintenance when Employer did not object to the request and it was supported by expert medical evidence.

¶4 The three-judge panel unanimously modified the trial court’s order to allow continuing medical maintenance, but affirmed the order in all other respects. Employer now seeks our review of that order. Employer sets forth its contentions with regard to alleged WCC error in three appellate propositions, but they are all premised upon Employer’s assertion that Claimant failed to preserve the continuing medical maintenance issue for appeal.

¶ 5 Employer argues Claimant’s “supplemental” appeal to the three-judge panel was a “nullity” because it was not filed within ten days of the date the trial court’s order was filed, as required by 85 O.S.2001 § 3.6(A). Section 3.6(A) provides, in pertinent part:

Either party feeling himself aggrieved by such order, decision or award shall, within ten (10) days, have the right to take an appeal from the order, decision or award of the Judge [hearing the cause] to the [WCC] sitting en banc.

¶ 6 Employer further argues the trial court’s denial of continuing medical maintenance was a “decision” within the meaning of § 3.6(A), thus requiring Claimant to have included that issue in her appeal within ten days of filing of the trial court’s order. Our consideration of that argument, and the absence of an express provision regarding “supplemental” appeals, requires interpretation of § 3.6(A) to determine what [841]*841must be done within the ten day statutory period to preserve issues for appeal. Interpretation and application of statutes presents a question of law, which is before us for de novo review. City of Durant, In re., 2002 OK 52, 50 P.3d 218. We will examine the WCC’s ruling independently with no deference given to that ruling. Fink v. State ex rel. Department of Public Safety, 1992 OK CIV APP 169, 852 P.2d 774.

¶ 7 In construing statutes, relevant provisions must be considered together. Independent Finance Institute v. Clark, 1999 OK 43, 990 P.2d 845. The particular provision before us, as set forth in paragraph five above, has not been interpreted by our appellate courts with a view to how the ten day limit should be applied. However, the Oklahoma Supreme Court has considered provisions in § 3.6 which are substantially the same in relation to review by the Supreme Court.

¶ 8 Another provision in § 3.6 states:

The order, decision or award of a judge of the [WCC] shall be final and conclusive upon all questions within his jurisdiction between the parties unless appealed directly to the Supreme Court or to the [WCC] sitting en banc as hereinbefore provided. Any party litigant desiring to appeal directly from such order, decision or award to the Supreme Court, shall, within twenty (20) days after a copy of the order, decision or award has been sent by the Administrator to the parties affected, commence an action in the Supreme Court of the state to review such order, decision or award.

¶ 9 While the wording is not identical, the provisions allowing appeal to either the Oklahoma Supreme Court, or the WCC en banc, require the same act, i.e. commencement of an appeal within a statutory period. For appeal en banc, § 3.6 requires “filing with the Administrator a notice of appeal.” For appeal to the Supreme Court, the section requires “filing with the Clerk of the Supreme Court a certified copy of the order, decision or award of the [WCC] ... attached to the petition ... wherein the complainant or petitioner shall make his assignments or specifications as to wherein said order, decision or award is erroneous or illegal.”

¶ 10 Rule 1.103, Supreme Court Rules, 12 O.S.2001 Chap. 15, App., implementing § 3.6, provides that “[a] petition for review shall be deemed amended to include errors set forth in the propositions in the Brief-in-Chief provided that the errors or issues were presented to the [WCC].” Thus, considering statutory language which is effectively the same as that in controversy here, the Supreme Court determined the parties were not bound by the issues initially raised in the pleading initiating the appeal.

¶ 11 In allowing appeals to be amended, the Supreme Court did not distinguish between order, decision or award. It appears the Court, as do we, considered those collective terms, that is, all the determinations, whether one or several, handed down by the WCC at the same time pertaining to the same case. Some confusion is created by common usage, whereby we speak of an “award” being made in a WCC “order.” In fact, “order” was not included in the provision before us as originally enacted. At that time an original action in the Supreme Court was allowed to review an “award or decision” of the Industrial Commission, predecessor to the WCC. Laws 1915, c. 246, § 13. Statutory nomenclature has evolved, but we find no indication the Legislature intends, under present practice, to require more than timely notice an appeal is to be taken from an “order” in which various “awards” or “decisions” may be included.

¶ 12 In an earlier case, Transwestern Oil Co. v. Partain, 1940 OK 371, 188 Okla. 97, 106 P.2d 263, the Supreme Court noted one of the purposes of the predecessor statute to § 3.6(A) was:

... to make available to parties whose rights are subject to determination by the Commission a hearing before the Commission en banc by the simple method of giving notice of appeal within the time therein described. (Emphasis added).

¶ 13 Although the Supreme Court’s rule regulating petitions for review before it is not considered mandatory precedent under the circumstances in the present case, its interpretation of § 3.6 to allow amendment of the petition for review is strongly persuasive. [842]

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Bluebook (online)
2006 OK CIV APP 59, 135 P.3d 839, 2006 Okla. Civ. App. LEXIS 26, 2006 WL 1320748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mays-plus-inc-v-ennis-oklacivapp-2006.