REIF, J.:
¶ 1 This case concerns the meaning and effect of a proviso in 85 O.S.2011, 402(A)(4).1 The general subject of 402(A) is the definition of physically impaired person for purposes of recovery from the Multiple Injury Trust Fund (MITF). Subsection 402(A)(4) provides that an injured worker with “[a]ny previous adjudications of disability adjudged and determined by the Workers’ Compensation Court” qualifies as a physically impaired person. The proviso in 402(A)(4), further addresses the narrower subject of cases where the claimant’s preexisting disability and'last-injury disability are in the same body part. The Workers’ Compensation Court of Existing Claims and the Court of Civil Appeal’s reached very different conclusions concerning the application of the proviso to Mr. Mackey’s MITF claim.
¶ 2 The Workers’ Compensation Court of Existing Claims found Mr. Mackey was a “physically impaired person,” at the time of his last injury based on previously adjudicated disability in his right arm, right hand, lungs and both hands. The Court further determined Claimant was permanently totally disabled from the combined disability of (1) these previously adjudicated ■ disabilities and (2) the last injury to his left shoulder. The Court of Existing Claims apparently concluded that the proviso in 402(A)(4), did not apply in Mr. Mackey’s case. The Court entered an award to be paid by MITF.-
¶3 In a review proceeding brought by MITF, the Court of Civil Appeals vacated the award. The Court of Civil Appeals, ruled that the proviso in 402(A)(4) restricts com-binable previously adjudicated • disability to previous disability in the same body part as involved in the latest injury. The proviso states: “Provided, that any adjudication of preexisting disability to a body part shall not be combinable for purposes of Multiple Injury Trust .Fund [liability] unless that part of the body was deemed to have been injured in the claim being adjudicated.” 402(A)(4)(emphasis added). In vacating the award, the Court of Civil Appeals-expressly found “Claimant’s subsequent injury to his left shoulder ... was not the same body part which was the subject of any of the previous adjudications of disability (i.e., right arm and right hand ... lungs ,.. both hands).”
¶ 4 The Court of Civil Appeals concluded that the phrase “shall not be combinable ... unless” created a mandatory condition for recovery from MITF. That is, the same-body-part condition in the proviso must be met, in addition to the physically impaired person condition, in order to recover from MITF. Stated another way, the Court of Civil Appeals treated compliance with the proviso as jurisdictional.
¶ 5 To reach this conclusion, the Court of Civil Appeals apparently equated the term “previous adjudications of preexisting-disability” in the proviso with the term “previous adjudications of disability” as used in the jurisdictional definition of physically impaired person. This equivalence in meaning is certainly reasonable given the context in which these terms appear and the subject to which they relate. Upon closer examination of 402(A)(4), however, we believe the meaning and effect of the term “previous adjudications of preexisting disability” is found in the larger body of‘law governing awards from MITF, and is not the equivalent of “previous adjudications of disability.”'
¶ 6 An indication that “previous adjudications of preexisting disability” has a meaning different from “previous adjudications of disability” is found in the language in the proviso that combinable preexisting disability be in “that part of the body .., injured in the claim being adjudicated.” 402(A)(4). In a proceeding to recover from MITF, the issue is combining disabilities, not adjudicating injury. Indeed, adjudication of the last injury must be completed before an injured worker can seek recovery from MITF, Multiple Injury Trust Fund v. Wade, 2008 OK 15, ¶ 16, 180 P.3d 1205, 1209; J.C. Penney Co. v. Crumby, 1978 OK 80, ¶ 4, 584 P.2d 1325, 1329.
¶ 7 The reference in the proviso to “injured in the claim being adjudicated” is an unmistakable reference to adjudication of the last injury and the subtraction of any preexisting disability from the employer’s liability. See 85 O.S.2011, 404(A); Wade, 2008 OK at ¶ 16, 180 P.3d at 1209; and Crumby, 1978 OK at ¶ 16; 584 P.2d at 1331. The preexisting disability that is subtracted from the last employer’s liability is historically and most commonly called a “Crumby finding.”
¶ 8 To be sure, this Court has said that the Legislature intended to exclude the use of Crumby findings for purposes of seeking recovery from MITF. Ball v. Multiple Injury Trust Fund, 2015 OK 64, 360 P.3d 499. However, the Ball case found such intent was to exclude a Crumby finding from the category of “previous adjudications of disability” that qualifies an injured, worker. as a physically impaired-person; The proviso did not change this rule. -What the proviso did was allow an injured worked who is otherwise qualified -as a physically impaired person,, to. combine Crumby-disability with .other .disabilities to determine permanent total disability, if the Crumby disability is in the same body part as disability from the last injury.
¶ 9 Rather than place a jurisdictional restriction on recovery from MITF, the same-body-part proviso allows Crumby-disability to be combined with last-injury disability for purposes of MITF liability. This meaning and effect would have been more obvious if the Legislature had placed the proviso in 404(A) between the second and third sentences, instead of placing it with the jurisdictional requirements in 402(A). Poor drafting notwithstanding, this meaning and effect is discernable from in pari materia reading of 402(A) with 404(A). See Ball, 2015 OK at ¶ 16, n. 29, 360 P.3d at 506, n. 29 (“Words and phrases of a statute are to, be understood and used not in an abstract sense, but with due regal’d for context and they must harmonize with other sections of the act to determine the purpose and intent of the legislature.”)
¶ 10 By focusing on what the Court of Civil Appeals perceived to be a dispositive jurisdictional issue, the Court did not address the issues raised by MITF in its petition for review and supporting briefs. Having granted certiorari, and having the trial court record as well as the parties’ briefs submitted on review, we will address and decide the MITF’s claims of error.
¶ 11 MITF briefed only three of the nine assignments of error set forth in its petition for review. The three briefed assignments of error are all grounded in the fact that Mr. Mackey had been previously awarded permanent total disability compensation in.2003,
Free access — add to your briefcase to read the full text and ask questions with AI
REIF, J.:
¶ 1 This case concerns the meaning and effect of a proviso in 85 O.S.2011, 402(A)(4).1 The general subject of 402(A) is the definition of physically impaired person for purposes of recovery from the Multiple Injury Trust Fund (MITF). Subsection 402(A)(4) provides that an injured worker with “[a]ny previous adjudications of disability adjudged and determined by the Workers’ Compensation Court” qualifies as a physically impaired person. The proviso in 402(A)(4), further addresses the narrower subject of cases where the claimant’s preexisting disability and'last-injury disability are in the same body part. The Workers’ Compensation Court of Existing Claims and the Court of Civil Appeal’s reached very different conclusions concerning the application of the proviso to Mr. Mackey’s MITF claim.
¶ 2 The Workers’ Compensation Court of Existing Claims found Mr. Mackey was a “physically impaired person,” at the time of his last injury based on previously adjudicated disability in his right arm, right hand, lungs and both hands. The Court further determined Claimant was permanently totally disabled from the combined disability of (1) these previously adjudicated ■ disabilities and (2) the last injury to his left shoulder. The Court of Existing Claims apparently concluded that the proviso in 402(A)(4), did not apply in Mr. Mackey’s case. The Court entered an award to be paid by MITF.-
¶3 In a review proceeding brought by MITF, the Court of Civil Appeals vacated the award. The Court of Civil Appeals, ruled that the proviso in 402(A)(4) restricts com-binable previously adjudicated • disability to previous disability in the same body part as involved in the latest injury. The proviso states: “Provided, that any adjudication of preexisting disability to a body part shall not be combinable for purposes of Multiple Injury Trust .Fund [liability] unless that part of the body was deemed to have been injured in the claim being adjudicated.” 402(A)(4)(emphasis added). In vacating the award, the Court of Civil Appeals-expressly found “Claimant’s subsequent injury to his left shoulder ... was not the same body part which was the subject of any of the previous adjudications of disability (i.e., right arm and right hand ... lungs ,.. both hands).”
¶ 4 The Court of Civil Appeals concluded that the phrase “shall not be combinable ... unless” created a mandatory condition for recovery from MITF. That is, the same-body-part condition in the proviso must be met, in addition to the physically impaired person condition, in order to recover from MITF. Stated another way, the Court of Civil Appeals treated compliance with the proviso as jurisdictional.
¶ 5 To reach this conclusion, the Court of Civil Appeals apparently equated the term “previous adjudications of preexisting-disability” in the proviso with the term “previous adjudications of disability” as used in the jurisdictional definition of physically impaired person. This equivalence in meaning is certainly reasonable given the context in which these terms appear and the subject to which they relate. Upon closer examination of 402(A)(4), however, we believe the meaning and effect of the term “previous adjudications of preexisting disability” is found in the larger body of‘law governing awards from MITF, and is not the equivalent of “previous adjudications of disability.”'
¶ 6 An indication that “previous adjudications of preexisting disability” has a meaning different from “previous adjudications of disability” is found in the language in the proviso that combinable preexisting disability be in “that part of the body .., injured in the claim being adjudicated.” 402(A)(4). In a proceeding to recover from MITF, the issue is combining disabilities, not adjudicating injury. Indeed, adjudication of the last injury must be completed before an injured worker can seek recovery from MITF, Multiple Injury Trust Fund v. Wade, 2008 OK 15, ¶ 16, 180 P.3d 1205, 1209; J.C. Penney Co. v. Crumby, 1978 OK 80, ¶ 4, 584 P.2d 1325, 1329.
¶ 7 The reference in the proviso to “injured in the claim being adjudicated” is an unmistakable reference to adjudication of the last injury and the subtraction of any preexisting disability from the employer’s liability. See 85 O.S.2011, 404(A); Wade, 2008 OK at ¶ 16, 180 P.3d at 1209; and Crumby, 1978 OK at ¶ 16; 584 P.2d at 1331. The preexisting disability that is subtracted from the last employer’s liability is historically and most commonly called a “Crumby finding.”
¶ 8 To be sure, this Court has said that the Legislature intended to exclude the use of Crumby findings for purposes of seeking recovery from MITF. Ball v. Multiple Injury Trust Fund, 2015 OK 64, 360 P.3d 499. However, the Ball case found such intent was to exclude a Crumby finding from the category of “previous adjudications of disability” that qualifies an injured, worker. as a physically impaired-person; The proviso did not change this rule. -What the proviso did was allow an injured worked who is otherwise qualified -as a physically impaired person,, to. combine Crumby-disability with .other .disabilities to determine permanent total disability, if the Crumby disability is in the same body part as disability from the last injury.
¶ 9 Rather than place a jurisdictional restriction on recovery from MITF, the same-body-part proviso allows Crumby-disability to be combined with last-injury disability for purposes of MITF liability. This meaning and effect would have been more obvious if the Legislature had placed the proviso in 404(A) between the second and third sentences, instead of placing it with the jurisdictional requirements in 402(A). Poor drafting notwithstanding, this meaning and effect is discernable from in pari materia reading of 402(A) with 404(A). See Ball, 2015 OK at ¶ 16, n. 29, 360 P.3d at 506, n. 29 (“Words and phrases of a statute are to, be understood and used not in an abstract sense, but with due regal’d for context and they must harmonize with other sections of the act to determine the purpose and intent of the legislature.”)
¶ 10 By focusing on what the Court of Civil Appeals perceived to be a dispositive jurisdictional issue, the Court did not address the issues raised by MITF in its petition for review and supporting briefs. Having granted certiorari, and having the trial court record as well as the parties’ briefs submitted on review, we will address and decide the MITF’s claims of error.
¶ 11 MITF briefed only three of the nine assignments of error set forth in its petition for review. The three briefed assignments of error are all grounded in the fact that Mr. Mackey had been previously awarded permanent total disability compensation in.2003,
¶ 12 The crux of MITF’s position is that a claimant cannot be permanently and totally disabled more that once or, at least, cannot receive MITF compensation .more than once. MITF reasons that MITF has already paid for the permanent and total, effect of Mr. Mackey’s “previous adjudications of disability” and to award additional compensation based on these same disabilities is an unauthorized extension of the statutory liability the Legislature created for MITF. jVUTF further reasons that even if Mr. Mackey could be permanently and totally disabled more than once, the prior adjudication of his condition is final and binding, unless there is a further adjudication that he sustained a change of condition for the better. We disagree.
¶ 13 It-has long been recognized that the extent of a claimant’s previous permanent disability, at the time of a subsequent injury, is a question of fact and a prior adjudication of permanent disability is not conclusive on this issue. Special Indemnity Fund v. Doughty, 1976 OK 147, ¶¶ 8, 9, 558 P.2d 396, 397. A factor that is conclusive is a PTD claimant’s return to work; this factor conclusively establishes he or she is no longer permanently totally disabled and is not entitled to further PTD compensation. Id.
¶ 14 A claimant who returns to work can sustain permanent total disability from a subsequent injury and “may be permanently totally disabled more than once if more than one injury is involved.” Special Indemnity Fund v. Betterton, 1996 OK CIV APP 99, ¶ 13, 925 P.2d 86, 89. As the Court of Civil Appeals explained: “Despite the award of ‘PTD’ in two different orders, the workers’ compensation court was determining Claimant’s condition at two different points in time, as a result of two separate injuries.” Id. at ¶ 11, 925 P.2d at 88.
¶ 15 In the Ball case, this Court took note of “the obvious legislative intent over the last twenty years to decrease and limit the Fund’s liability.” 2015 OK at ¶ 16, 360 P.3d at 507. In light of this policy, if the Legislature had wanted to change this longstanding view of permanent total disability, we believe the Legislature would , have either drafted new provisions, to do so or would have expressly limited claimants to-only one award for permanent total disability. The Legislature did not do so by enactment and neither will ¡we by construction.
¶ 16 Upon review, we hold that the Workers’ Compensation Court of Existing Claims did' not err in determining that Mr. Mackey had sustained permanent total disability as the result of the combined effect of previously adjudicated disabilities anil his last job-related injury in 2013 to his left shoulder.
Accordingly, we reinstate and sustain the award of permanent total disability against the Multiple Injury Trust Fund.
CERTIORARI GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; THE MULTIPLE INJURY TRUST FUND AWARD SUSTAINED,
CONCUR: GURICH,-V.C.J., KAUGER, WATT, EDMONDSON, and REIF, JJ. DISSENT: COMBS, C.J., WINCHESTER, and WYRICK, JJ. (by separate writing). NOT PARTICIPATING: COLBERT, J.