MULTIPLE INJURY TRUST FUND v. GARRETT

2017 OK 62, 408 P.3d 169, 2017 WL 2774426, 2017 Okla. LEXIS 62

Opinions

Colbert, J.

¶ 1 The dispositive issue presented on review is whether the claimant met the statutory definition of a “physically impaired person” at the time of the claimant’s second on-the-job injury for purposes of determining eligibility for Multiple Injury Trust Fund (Fund) benefits. Subsumed in this determination is whether a duly-executed settlement agreement — memorialized on a form prescribed by the Workers’ Compensation Court (WCC) — constitutes an adjudication of the claimant’s disabilities. This Court answers both questions in the affirmative.

I. BACKGROUND AND PROCEDURAL HISTORY

¶2 On April 29, 1991, Tommy Garrett (Claimant) sustained a compensable on-the-job injury while working for the Oklahoma Department of Transportation (ODOT). Claimant stated that he was driving a road grader when a semi-truck, traveling approximately sixty-miles-per-hour, ran off the road and struck the left side of the grader.

¶3 Claimant was diagnosed with L5-S1 bilateral disc herniation with irritation of the SI nerve root. Claimant was treated but ultimately required surgery to his back. The operative report described the surgery as a “[bjilateral decompressive laminectomy and bilateral right and left sided laminectomy with discectomy L5-S1 interspace with bilateral decompression SI nerve roots.”¹

¶4 Claimant subsequently filed a claim against ODOT in the WCC.² On August 13, 1992,³ Claimant, ODOT and ODOT’s insurance carrier settled Claimant’s claim and memorialized that settlement in a WCC-prescribed form titled: Joint Petition. The Joint Petition disclosed injury to Claimant’s “NECK, BACK AND ARM AND ALL OTHER INJURIES BOTH KNOWN AND UNKNOWN.” As a result of Claimant’s injuries, “claimant was temporarily totally disabled from 4/29/91 to 7/7/92 ... for which claimant received $15,293.00, from the respondent or insurance carrier.” The Joint Petition further stated that, “[claimant further alleges that in addition to said temporary total disability, claimant has sustained certain permanent disabilities which are com-pensable under the Workers’ Compensation Act of the State of Oklahoma, which last allegation is by respondent or insurance carrier expressly denied.” The Joint Petition also indicated Claimant’s acceptance of a $100.00 settlement payment as “compensation for temporary disability, permanent disability, permanent disfigurement, ... and vocational rehabilitation or loss of wage earning capacity which claimant now has or may hereafter have as a result of said injury” against “respondent and insurance carrier.” (emphasis provided). That same day, the WCC, after reviewing the evidence, the stipulation of the parties, the files and record, approved the Joint Petition. Neither party appealed.

¶ 5 Ovér fifteen years later, on March 22, 2007, Claimant suffered another compensa-ble on-the-job injury while working for Rodger Jeffcoats, Inc. (Employer). Claimant filed a claim against Employer in the WCC on May 15, 2008. As a result of this injury, the tribunal ordered Employer or its insurance carrier to pay Claimant fifty-two weeks of temporary total disability (TTD).⁴ Claimant, Employer and Employer’s insurance carrier entered into a Compromise Settlement on May 24, 2012, another WCC-prescribed form.⁵ That agreement awarded Claimant $125,000 for the permanent, partial disability (PPD) and impairment ratings to the following body parts:- 40% right knee, 40% left knee and 42% back. The WCC approved the parties’ settlement that same day. Neither party appealed.

¶ 6 On October 31, 2012, Claimant filed a Form 3F seeking benefits from the Fund.⁶ This form recited Claimant’s impairment ratings from the latest on-the-job injury as 40% right leg, 40% left leg and 42% back.⁷ Claimant also referenced the 1991 on-the-job injuries to his neck, back and arm.⁸ The Fund denied liability and jurisdiction alleging that Claimant was not a “previously impaired person” as defined by Okla.’ Stat. tit. 85, § 171 (Supp. II 2005).⁹ Specifically, Fund alleged that there was no disability or percentage therefrom adjudged and determined prior to Claimant’s latest on-the-job injury. '

¶ 7 The tribunal appointed an independent medical examiner (IME) to evaluate Claimant and “determine if claimant is permanently and totally disabled due to the combination of [Claimant’s] injuries.”¹⁰ After the examination, the IME concluded .that Claimant’s 1991 prior claim

was subrogated through third party insurance; however, he was awarded $15,293.00 for temporary disability for 62 weeks and ... $100.00 ... for permanent disability. [I]f it is determined by the Court that the injuries to his back are combinable and using ■ the fact that he was temporarily totally disabled for 62 weeks, this would convert to approximately 12% impairment to the body as a whole.¹¹

The TME also opined that Claimant’s injuries were synergistic and assessed a “material increase of 10% over and above the numerical sum of these injuries, giving him a total of 116.5% impairment to the body as a whole.” Combining those findings with Claimant’s age, education and work experience, the IME found Claimant to be permanently totally disabled and “unable to return to the workforce.”¹²

¶ 8 The tribunal found Claimant to be a. “previously physically impaired person” at the time of Claimant’s latest, compensable on-the-job, injury and ordered Fund to pay Claimant $289.00 per week for fifteen years.¹³ Fund appealed to the en banc panel of the tribunal. Upon reexamination, the panel fpund the tribunal’s order contrary to law and against the clear weight of the evidence.¹⁴ Based on its findings, the panel remanded the matter “for a redeterminátion of whether Claimant was a previously impaired person and the amount of disability and then for determination of whether claimant is.permanently, totally disabled, due to a combination of injuries.”¹⁵

■ ¶ 9 On remand, the tribunal again determined that both of Claimant’s compensable on-the-job injuries resulted in permanent impairments. The tribunal adjudged Claimant permanently totally disabled as a result of those injuries and the “material increase resulting. therefrom.”¹⁶ Although the tribunal stated that it “no longer [was] allowed to award [a] specific percent of disability,” the tribunal applied Okla. Stat. tit. 85, § 329(J) and held that the IME opinion “shall be followed unless there is clear and convincing evidence to the contrary.” It found none. Fund appealed. ■

¶ 10 The Court of Civil Appeals reversed. Relying on Ball v. Multiple Injury Trust Fund, 2015 OK 64, 360 P.3d 499, COCA held that the tribunal’s “finding of preexisting permanent disability where there was no such prior finding ... is in essence a Crumby¹⁷ finding.”¹⁸ As such, Claimant failed to establish that he was a physically impaired person. Claimant appealed. This Court granted certiorari review.

¶ 11 On certiorari, Claimant urges that COCA’s vacation of the tribunal’s order awarding Claimant permanent total disability (PTD) benefits against Fund was error. Relying on the rationale in Multiple Injury Trust Fund v. Sugg, 2015 OK 78, 362 P.3d 222, Claimant urges that the 1992 Joint Petition constitutes an adjudication of Claimant’s disabilities and renders Claimant a “physically impaired person” as contemplated by section 171 at the time of Claimant’s 2007 on-the-job injuries. Fund, on the other hand, disagrees and avers that Ball is controlling.

¶ 12 At the outset, this Court distinguishes Ball v. Multiple Injury Trust Fund, 2015 OK 64, 360 P,3d 499 from the issues and facts presented here. In Ball, this Court held that assigning a Crumby finding of preexisting disability to an unrelated injury in the absence of a prior adjudication, simultaneously with an adjudication of a subsequent, compensable on-the-job injury to render a worker a “physically impaired person” was prohibited, (emphasis added). The crucial element missing in Ball was that the worker lacked a prior adjudicated injury. Ball, 2015 OK 64 ¶¶ 1, 13, 360 P,3d at 504-05. Por reasons discussed in Part III, infra, this Court finds Ball inapplicable.'

II. STANDARD OF REVIEW

¶ 13 The overarching issue pressed on appeal is whether Claimant constituted a “physically impaired person” at the time of Claimant’s subsequent work-related injury on March 22, 2007. Resolution of this issue hinges upon whether the 1992 Joint Petition constituted a prior adjudication of Claimant’s disabilities as contemplated by section 171. Okla. Stat. tit. 85, § 171 (Supp. II 2005). Whether a worker was correctly adjudged a “physically impaired "person” within the meaning of the Act is a jurisdictional question of law this Court reviews de novo. Special Indem. Fund v. Choate, 1993 OK 15 ¶ 12, 847 P.2d 796, 801.

III. ANALYSIS

A. Joint Petition

¶ 14 This Court first determines that the 1992 Joint Petition is an adjudication of Claimant’s injuries and resulting disabilities. The WCC is a creature of statute. Strong v. Laubach, 2004 OK 21, 110, 89 P.3d 1066, 1070. This statutory creation not only provided a scheme for compensation of injured workers’ claims, but also a means for settling disputes, absent a full adversary hearing. See Okla. Stat. tit. 85, §§ 1-203(1981 & Supp. II 1990); See also In re Hyde, 2011 OK 31 ¶ 10, 255 P.3d 411, 414. The statutes and rules governing the parties’ 1992 Joint Petition, here, are those in effect at the time of Claimant’s first injury. Bertrand v. Laura Dester Ctr., 2013 OK 18 ¶ 14, 300 P.3d 1188, 1192. Claimant’s first .compensable injury was April 29, 1991. Accordingly, the 1981 version and 1990 supplement of Title 85, controls.

¶ 15 Rule 11 provides in pertinent part:

The court shall .prepare and adopt such forms for use in matters before the court as it may. deem necessary or advisable. Whenever the court forms are prescribed and are applicable, they shall be used. ... The following forms have been adopted by the court:

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Compromise Settlement

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Joint Petition

Okla. Stat. tit. 85, ch. 4, Rule 11 (Supp,. II 1991). ' ,

Section 1.2(E) provides in pertinent part:

All rules and regulations, upon adoption, shall be submitted to the Supreme Court, which shall either approve or disapprove them within thirty (30) days. All rules and. regulations, upon approval by the Supreme Court, shall be published and be made available to the public and, if not inconsistent with the law, shall be binding in the administration of the Workers’ Compensation Act.

Okla. Stat. tit. 85, § 1.2(E) (1981).

And, Section 26 provides in pertinent part:

If the employer and the injured employee shall reach a final agreement as to the facts with relation to an injury, and thé resulting disability for which compensation is .claimed under the Workers’ Compensation Act, a memorandum of such agreement, in form as prescribed by the Administrator, signed by both the employer and employee, and approved by the Court shall be filed by the employer with the Administrator. In' the absence of fraud this agreement shall be deemed binding upon the parties thereto. Such agreement shall be approved by the Court only when the terms conform to the provisions of the Workers’ Compensation Act.

¶ 16 At the time of Claimant’s and ODOT’s agreement to settle, the WCC prescribed only two methods for resolving compensable claims subject to this Court’s approval: Compromise Settlement and Joint Petition. See Okla. Stat. tit. 85, ch. 4, Rulé 11 (Supp. II 1991); Okla. Stat. tit. 85, § 1.2(E) (1981). In accordance with the Act, Claimant and ODOT elected to settle by Joint Petition. That agreement was signed by the parties, identified Claimant’s injuries, and awarded compensation for the resulting temporary and permanent disabilities. This Court notes that the Joint Petition indicates ODOT paid Claimant TTD. benefits and a $100 PPD award, acknowledging some degree of permanence to Claimant’s work-related injuries.

¶ 17 On August 13, 1992, the WCC approved the Joint Petition after determining that the agreement conformed to the provisions of the Act. See § 26. Upon expiration of the time for appeal, the Joint Petition became a final adjudication of Claimant’s injures. See also Okla. Power Co. v. State Indus. Comm’n, 1932 OK 171, ¶ 5, 166 Okla. 121, 9 P.2d 443, 444 (This Court held that the approval of a joint petition by the State Industrial Commission was a final adjudication and will not be subject to a collateral attack after the appeal time has expired.). No controlling distinction exists between adjudications memorialized by a final order and a judge-approved joint petition. Roberts v. Tway Constr. Co., 1974 OK 128, ¶18, 528 P.2d 1389, 1392. Simply put, an “adjudication” is any judicial action, See Depuy v. Hoeme, 1989 OK 42, ¶¶8-9, 775 P.2d 1339, 1342-43, including actions memorialized in a joint petition. Black, Sivalls & Bryson v. Bass, 1973 OK 9, ¶8, 506 P.2d 902, 904. Accordingly, this Court holds that the 1992 Joint Petition constitutes a “previous adjudication!;] of disability adjudged and determined by the Workers’ Compensation Court.” Okla. Stat. tit. 85, § 171 (Supp. II 2005). The mere fact that the WCC-prescribed form failed to include the exact degree of impairment is irrelevant as to whether there was a final adjudication.

B. Physically Impaired Persons

¶ 18 Fund advances a strained interpretation of section 171. Specifically, Fund challenges the 1992 adjudication of Claimant’s disabilities as the Joint Petition lacks an impairment rating. Fund, however, is mistaken.

¶ 19 The Fund’s liability for PTD benefits is statutorily limited to “physically impaired persons” at the time a claimant seeks benefits from the Fund. See Special Indem. Fund v. Carson, 1993 OK 64, ¶ 7, 852 P.2d 157, 158. At the time of Claimant’s 2007 injuries and 3F claim, the statute in effect in pertinent part read:

For purposes of Sections 171 through 176 of this title, the term “physically impaired person” means a person who as a result of accident, disease, birth, military action, or any other cause, has suffered [the statute enumerates losses] ... or any previous adjudications of disability adjudged and determined by the Workers’ Compensation Court or any disability resulting from separately adjudicated injuries.

Okla. Stat. tit. 85, § 171 (Supp. II 2005) (emphasis added).

¶ 20 From a plain reading of the statute, section 171 merely requires Claimant, here, to have a prior adjudicated disability. Nothing in the text of Section 171, however, requires a quantifiable percentage of impairment to accompany the prior adjudicated disability as Fund alleges. In construing statutes, “[t]he general rule is that nothing may be read into a statute which is not within the manifest intention of the legislature as gathered from the act itself ....” Huffman v. Oklahoma Coca-Cola Bottling Co., 1955 OK 76, ¶ 18, 281 P.2d 436, 440 (quoting 50 Am. Jur., Statutes, § 244). At the time of Claimant’s subsequent compensable injury on March 22, 2007, Claimant had satisfied the statutory definition of a “physically impaired person” by virtue of the 1992 adjudication.

C. Permanent Total Disability Claims Against the Fund

¶ 21 Before Claimant, here, can collect full compensation from the Multiple Injury Trust Fund, Claimant’s disabilities must render Claimant permanently and totally disabled. Section 172(B)(3) prescribes the manner in which compensation benefits are to be determined where a “physically impaired person” has received a subsequent work-related injury on or after November 1, 2005. The pertinent portion applicable to this case provides:

if such combined disabilities constitute permanent total disability, as defined in Section 3 of this title, then the employee shall receive full compensation as provided by law for the disability resulting directly and specifically from the subsequent injury. In addition, the employee shall receive full compensation for permanent total disability if the combination of injuries renders the employee permanently and totally disabled, as above defined, all of which shall be computed upon the schedule and provisions of the Workers’ Compensation Act. The employer shall be liable only for the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment. In permanent total disability cases the remainder of the compensation shall be paid out of the Multiple Injury Trust Fund and may be paid in periodic payments, as set forth in Section 22 of this title. The compensation rate for permanent total disability awai’ds from the Multiple Injury Trust Fund shall be the compensation rate for peimanent partial disability paid by the employer in the last combinable compensa-ble injury. Peimanent total disability awards from the Multiple Injury Trust Fund shall be payable for a period of fifteen (15) years or until the employee reaches sixty-five (65) years of age, whichever period is the longer. Permanent total disability awards from the Multiple Injury Trust Fund shall accrue from the file date of the court order finding the claimant to be permanently and totally disabled.

Okla. Stat. tit. 85, § 172 (B)(3) (Supp. II 2005).

¶ 22 As a practical matter, a Crumby finding of a claimant’s preexisting disability is a necessary component in determining the claimant’s present capacity for work. In fact, it is an indispensable factor in supplying the extent of a “claimant’s prior (unrelated) disability and the compensable injury’s impact ...Multiple Injury Trust Fund v. Sugg, 2015 OK 78, ¶ 8, 362 P.3d 222, 226.

¶ 23 In affixing the liability of the Multiple Injury Trust Fund, this Court most recently noted that,

[u]nder § 172(B)(3), with regard to the Fund’s liability for subsequent injuries occurring after November 1, 2005, the dis-positive issue is whether an employee is permanently and totally disabled. Notably, ... the statute does not limit the Fund’s liability to the disability resulting from the subsequent injury as if there had been no preexisting impairment. ... [T]his Court has said that a Crumby finding is a rated assessment of the effect,, if any, upon the claimant’s alleged capacity status from the interplay of his compensable harm with the unrelated pre-existing conditions. Effect refers to that component of the claimant’s total disability from pre-existing impairments which may contribute to his current condition and which may have an effect on his present capacity for work. Additionally, a Crumby finding supplies the extent of a claimant’s prior (unrelated) disability and the compensable injury’s impact, if any, on the claimant’s prior impairments. Thus, when the Claimant is being evaluated for permanent total disability; a Crumby finding of preexisting disability is relevant in determining his or her present capacity for work.

Id. (quotations omitted) (citations omitted) (emphasis added).

¶ 24 In effect, the statutory language implicitly requires a Crumby finding when the claimant by “accident, disease, birth, military action, or any other cause, has suffered” one of the losses enumerated in the statute or whose prior disabilities have been adjudged and determined by the WCC.¹⁹ Id.; See also Okla. Stat. tit. 85, § 171 (Supp. II 2005). Upon meeting the statutory requirements of sections 171 and 172, the Court’s sole prerogative then becomes whether the worker is permanently totally disabled.

¶ 25 The record, here, reveals that Claimant was engaged in gainful employment prior to Claimant’s latest on-the-job injuries in 2007. But, thereafter, the synergistic effects of Claimant’s multiple, adjudicated work-related injuries required a material increase over and above the numerical sum of Claimant’s preexisting injuries. The record also demonstrates that in' combining Claimant’s multiple work-related injuries with Claimant’s age, education and work experience, Claimant was unable to return to the workforce. Claimant is permanently and totally disabled; and, therefore, entitled to an award of PTD benefits from the Fund.

IV. CONCLUSION

¶ 26 As a matter of law, this Court holds that the 1992 Joint Petition constitutes a prior adjudication of Claimant’s disabilities. Therefore, this Court concludes that Claimant qualifies as a “physically impaired person” as contemplated by Okla. Stat. tit. 85, § 171 (Supp. II2005).

¶ 27 Today, this Court reiterates its holding in Multiple Injury Trust Fund v. Sugg, 2015 OK 78, 362 P.3d 222, that “[o]nce an employee has established that he or she is a physically impaired person, .,. for subsequent injuries occurring after November 1, 2005, the dispositive issue is whether the employee is permanently and totally disabled.” Okla. Stat. tit. 85, § 172(B)(3) (Supp. II 2005). At this point, “[a] Crumby finding of preexisting disability may be combined with other impairments in, determining whether the employee is permanently totally disabled and entitled to an award against the Fund.” Multiple Injury Trust Fund v. Sugg, 2015 OK 78, ¶ 11, 362 P.3d 222, 226. Based on the foregoing,' this Court concludes that Claimant is permanently and totally disabled; and, therefore, entitled to an award against the Fund.

’ CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; WORKERS’ COMPENSATION COURT ORDER AFFIRMED.

Combs, C.J., Gurich, V.C.J., Watt, Edmondson, Colbert and Reif, JJ., concur Winchester and Wyrick (by separate writing), JJ., dissent Kauger, J., not voting

Footnotes

1

. Duncan Regional Hospital Operative Report (May 21, 1991).

2

. Court Claim No. 91-11090-H.

3

.Id.

4

. Agreed Order (April 20, 2010).

5

. Form CS-339-A: Compromise Settlement (May 24, 2012).

6

. Workers’ Compensation Court File No. 2008-05732-K.

7

.Id.

8

.Id.

9

.The 2005 version of Okla. Stat. tit. 85, § 171 defines physically impaired person:

For purposes of Sections 171 through 176 of this title, the term 'physically impaired person' means a person who as a result of accident, disease, birth, military action, or any other cause, has suffered the loss of the sight of one eye, the loss by amputation of the whole or a part of a member of his body, or the loss of the use or partial loss of the use of a member such as is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession, or any previous adjudications of disability adjudged and determined by the Workers’ Compensation Court or any disability resulting from separately adjudicated injuries and adjudicated occupational diseases even though arising at the same time.’

10

.Order for Medical Examination (March 18, 2013).

11

. Dr. Munneke Report (April 9, 2013).

12

. Id.

13

. Order Awarding Multiple Injury Trust Fund Permanent Total Disability Benefits (August 16, 2013).

14

. Order on Appeal Vacating and Remanding the Decision of the Trial Court (November 19, 2013).

15

. Id.

16

.Order on Remand Awarding Multiple Injury Trust Fund Permanent Total Disability Benefits (June 2, 2014).

17

. J.C. Penney Co. v. Crumby, 1978 OK 80, 584 P.2d 1325.

18

. The -term "Crumby finding” refers to a rated assessment by the Workers’ Compensation Court of the quantum of pre-existing unrelated impairments suffered by a claimant at the time the work-related injury occurred. The Crumby finding has two components. The trial tribunal must rate (1) claimant’s pre-existing unrelated impairments as well as (2) the impact, if any, the compensable injuries may have had upon claimant's preexisting disability. Hammons v. Okla. Fixture Co., 2003 OK 7, ¶5, n.ll, 64 P.3d 1108, 1110 n.ll.

19

. Section 171 includes "a person who as a result of accident, disease, birth, military action, or any other cause, has suffered the loss of the sight of one eye, the loss by amputation of the whole or a part of a member of his body, or the loss of the use or partial loss of the use of a member such as is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession” in the definition of a physically impaired person. A claimant that meets this definition is not required to have a prior adjudication of disability. In order to rate such a prior impairment, the trial court may make a Crumby finding simultaneously with the subsequent on-the-job injury and then rate the impact the com-pensable injury had on the preexisting impairment.