Special Indemnity Fund v. Carson

1993 OK 64, 852 P.2d 157, 64 O.B.A.J. 1504, 1993 Okla. LEXIS 69, 1993 WL 150645

• Court: Supreme Court of Oklahoma
• Decided: May 11, 1993
• Docket: 78320
• Status: Published

Opinions

HODGES, Chief Justice.

. The dispositive issue in this case is whether a finding pursuant to J. C. Penney Co. v. Crumby, 584 P.2d 1325 (Okla.1978) {Crumby finding), that the claimant had a pre-existing disability at the time of the award of workers’ compensation disability is a previous adjudication under Okla.Stat. tit. 85, §§ 171-72 (1991), so as to bestow jurisdiction on the Workers’ Compensation Court and trigger liability for the Special Indemnity Fund (Fund). We find that it is not. This determination moots all other issues.

The relevant facts are undisputed. On May 31, 1987, the claimant, Leroy Carson, suffered a heart attack. The Workers’ Compensation Court found that the claimant had sustained 70 per cent permanent partial disability due to the heart attack. It also found, pursuant to Crumby, that the claimant had a pre-existing permanent partial disability of 20 per cent as a result of a heart attack he suffered in 1980. The finding of 70 per cent disability was over and above the pre-existing disability. The Workers’ Compensation Court awarded disability compensation against the employer, and this order was not appealed.

The claimant then sought additional compensation against the Special Indemnity Fund (Fund). The trial judge found that the Crumby finding was not an adjudication of prior impairment to support an award against the Fund and denied the claim against the Fund. A three-judge panel of the Workers’ Compensation Court found that the Crumby finding was a prior adjudication sufficient to support an award against the Fund and remanded the matter. On remand the trial judge found that the finding of 20 per cent pre-existing disability made pursuant to Crumby was a prior adjudication to be combined with the disability from the 1987 heart attack and held the Fund liable for the increase in disability from combining the two injuries. A three-judge panel of the Workers’ Compensation Court affirmed. The Fund appealed.

On appeal the Fund argued, among other things, that the Workers’ Compensation Court erred in holding that a Crumby finding constituted an adjudication of previous impairment so as to render the claimant a “physically impaired person” under Okla. Stat. tit. 85, § 171 (1991), and triggered the Fund’s liability. This Court granted certio-rari.

The Fund’s liability and the Workers’ Compensation Court’s jurisdiction rests on the statutory definition of “physically impaired person.” See Okla.Stat. tit. 85, § 172 (1991).¹ If a claimant does not come within the definition of a “physically impaired person,” the Fund is not liable for any disability compensation. Id. However, if the claimant falls within the definition, then the Fund is liable for the increase in disability resulting from the combination of two or more disabilities. Id.

Section 171 of the Workers’ Compensation Act (Act)² defines a “physically impaired person” as one who has suffered “the loss of the sight of one eye, the loss by amputation of the whole or a part of a major member of his body,” the loss of use or partial use of a major member which is apparent to an ordinary layman,³ or “any disability which previously has been adjudged and determined by the Workers’ Compensation Court....” The claimant does not argue that he has suffered any of the enumerated losses. Thus, the Fund’s liability hinges on a previous adjudication of disability.

Section 172 requires that the claimant be a “physically impaired person” at the time of the subsequent injury. A Crumby finding of pre-existing disability is made at the same time as the adjudication of the subsequent injury. See Crumby, 584 P.2d at 1331. Therefore, a Crumby finding does not render a claimant a “physically impaired person” for purposes of bestowing jurisdiction on the Workers' Compensation Court and attaching liability to the Fund.

This ruling is consistent with our previous applications of sections 171 and 172. In Special Indemnity Fund v. Iven, 284 P.2d 419, 420 (Okla.1955), this Court stated:

The State Industrial Commission is without jurisdiction to enter an award against the Special Indemnity Fund under the provisions of 85 O.S.1951 §§ 171 and 172, unless it be shown that at the time of the subsequent injury the claimant was a physically impaired person by reason of having any disability which previously has been adjudged and determined by order of the State Industrial Court.

(Emphasis added.) Iven makes clear that the claimant must have been a “physically impaired person” at the time of the subsequent injury. In Special Indemnity Fund v. Tyler, 369 P.2d 180 (Okla.1961), this Court held that a pre-existing non-adjudi-eated heart condition did not render the claimant a “physically impaired person”. Thus, the Fund did not incur any liability for the disability resulting from the preexisting heart condition.

The claimant argues that Iven and Tyler are not applicable after the 1986 amendments to the Workers’ Compensation Act. The 1986 amendments did not change the requirement that the claimant had to be a “physically impaired person” nor did they change the requirement that, if the claimant had not suffered an enumerated loss, his disability must have been adjudicated prior to the subsequent injury for the Fund’s liability to attach.

The claimant relies on Dorris v. Continental Carbon Co., 717 P.2d 603 (Okla.1986). Dorris did not involve a claim against the Fund. In Dorris the claimant suffered a work related injury in 1984. The claimant had a pre-existing disability from an injury relating to his military service. The military-service injury had not been previously adjudicated. The Workers’ Compensation Court found that the claimant was entitled to benefits for injuries resulting from the 1984 injury but not for the pre-existing military-related injury. The claimant argued that the Workers’ Compensation Court erred in apportioning his disability and reducing his compensation. This Court held that, under section 22 of the Workers’ Compensation Act, the trial tribunal correctly apportioned the disability and held the employer liable only for the injuries arising out of and in the course of the claimant’s employment.

The decision in Dorris is not applicable to the present case. The present case involves the Fund rather than an employer. Section 22 does not control claims against the Fund. Section 171 and 172 are the relevant statutes in the present case and require an enumerated loss or an adjudication of disability prior to the subsequent injury for the Fund’s liability to attach.

A Crumby finding is made contemporaneous with the adjudication of the subsequent injury and is not a previous adjudication as required by section 172. The claimant was not a “physically impaired person” for purposes of the Workers’ Compensation Act, and the Workers’ Compensation Court did not have jurisdiction to impose liability on the Fund for the claimant’s injuries. Therefore, the cause is remanded to the Workers’ Compensation Court with instructions to enter an order dismissing the claim for lack of jurisdiction.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS’ OPINION VACATED; ORDER OF THREE-JUDGE PANEL OF WORKERS’ COMPENSATION COURT VACATED; TRIAL JUDGE’S ORDER VACATED; CAUSE REMANDED.

SIMMS, HARGRAVE, SUMMERS and WATT, JJ., concur. OPALA, J., concurs in result. LAVENDER, V.C.J., and ALMA WILSON and KAUGER, JJ., dissent.

1 . Section 172(A) title 85 of the Oklahoma Statutes 1991 provides:

If an employee who is a "physically impaired person" receives an accidental personal injury compensable under the Workers’ Compensation Act which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone, the employee shall receive compensation on the basis of such combined disabilities.

2 . Section 171 provides:

For the purpose of Sections 171 through 176 of [the Workers’ Compensation Act], the term "physically impaired person” is hereby defined to be 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 major member of his body, or the loss of the use or partial loss of the use of a major 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 disability which previously has been adjudged and determined by the Workers’ Compensation Court....

3 .In Special Indemnity Fund v. Figgins, 831 P.2d 1379 (Okla.1992), this Court held that ”[a] previously unadjudicated injury to the lungs and the respiratory system [did] not quality (sic) an employee as a physically impaired person entitled to recovery from the Indemnity Fund.” Loss had to be to a major member of the body or had to have been previously adjudicated.