MULTIPLE INJURY TRUST FUND v. MACKEY
Case Number: 114429
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Decided: 09/26/2017
2017 OK 75
HONORABLE OWEN T. EVANS, TRIAL JUDGE
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I, ON REVIEW FROM THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS
CERTIORARI GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; THE MULTIPLE INJURY TRUST FUND AWARD SUSTAINED.
Richard Bell, David Custer, THE BELL LAW FIRM, Norman, Oklahoma, for Petitioner on Certiorari,
Brandy L. Inman, LATHAM, WAGNER, STEELE & LEHMAN, Tulsa, Oklahoma, for Respondent on Certiorari.
REIF, J.:
¶0 The Workers’ Compensation Court of Existing Claims determined Jolid Mackey was a physically impaired person at the time of his last injury to his left shoulder in February of 2013. His physically impaired status was based on several adjudications of disability that predated the last injury as provided in
¶1 This case concerns the meaning and effect of a proviso in
¶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
¶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
¶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 examinаtion of
¶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.”
¶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
¶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
¶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 compensаtion 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. MITF 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 detеrmining that Mr. Mackey had sustained permanent total disability as the result of the combined effect of previously adjudicated disabilities and 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.
Wyrick, J., with whom Combs, C.J., and Winchester, J., join, dissenting:
¶ 1 It should go without saying that when the Legislature changed the definition of “physically impaired person,” it changed the definition of “physically impaired person.” In the English language, provisos (i.e., clauses beginning with thе words “provided that . . .“) place a condition or limitation on the immediately preceding text.1 So when the Legislature added a proviso to the end of its definition of “physically impaired person,” it intended to place a new condition or limitation on how it had previously defined “physically impaired person.” Because the majority instead holds that the amendment did nothing to alter the definition of “physically impaired person,” I respectfully dissent.
I.
¶2 To make a claim against the Multiple Injury Trust Fund, one must be a “physically impaired person,” a term that is defined in
[T]he 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 the body;
- The loss of use or partial loss of use of a member such as is obviоus and apparent from observation or examination by a person who is not skilled in the medical profession;
- 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. Provided, that any adjudication of preexisting disability to a part of the body shall not be combinable for purposes of the Multiple Injury Trust Fund unless that part of the body was deemed to have been injured in the claim being adjudicated.
As a matter of proper usage, this proviso places a limitation on the immediately preceding sentence. Thus, the proviso narrows the class of previous adjudications of disability that may qualify a person as a “physically impaired person” to those adjudications that “adjudged and determined” a disability to the same part of the body that has been deemed injured in the most recent claim, i.e., the claim that has prompted the attempt to recover from the Multiple Injury Trust Fund. This means that fewer persons will now qualify for “physically impaired” status than would have before the proviso took effect.
¶3 In my view, this is the most plain, natural reading of the proviso. It is a reading that gives meaning to the proviso as a proviso, and is consistent with our prior recognition of the Legislature‘s long-existing intent to reduce the liability of the MITF.2 It also gives effect to the Legislature‘s decision to amend section 402, the function of which is to define the term “physically impaired person” for purposes of claims filed against the MITF; indeed, its very title is “Definition of ‘Physically Impaired Person.‘” Not surprisingly then, this is the meaning assigned to the proviso by the Court of Civil Appeals in this case,3 and by two other panels of the Court of Civil Appeals.4
¶4 The majority takes a different view, holding that the amendment to section 402 did not alter section 402, but rather an entirely different section of law that describes how “permanent totаl disability” (PTD) is determined.5 The majority acknowledges that, had the Legislature intended to modify how PTD is calculated for purposes of MITF claims, it should have placed the relevant sentence “in
¶5 The majority offers two justifications for its decision to attribute the amendment‘s placement in section 402(A) to legislative mistake. First, the majority correctly points out that the Legislature used the term “adjudication of preexisting disability” in the proviso, rather than thе term it used just prior: “previous adjudication of disability.”9 But even though “adjudication of preexisting disability” has a broader meaning than a “previous adjudication of disability,” the majority errs in assuming that the two are mutually exclusive. Indeed, we have always understood “adjudications of preexisting disability” to include both Crumby findings (i.e., contemporaneous adjudications of disability) and previous adjudications of disability.10 Accordingly, the Legislature was not wrong to choose the phrase “adjudication of preexisting disability” in a proviso designed to modify the term “previous adjudication of disability,” as thе former is broad enough to encompass the latter - - at worst, the Legislature chose a phrase that was overinclusive.
¶6 The majority next points to the Legislature‘s reference to “[the] part of the body . . . injured in the claim being adjudicated.”11 Arguing that there is no claim being adjudicated “[i]n a proceeding to recover from MITF,” the majority concludes that “[t]he 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.”12 I agree with the first part of this conclusion, that the phrase “the claim being adjudicated” is most sensibly understood to be a reference to the claim adjudicated as a result of the most recent injury - - i.e., the underlying claim against the employer that triggered the claim against the MITF. I disagree, however, with the latter conclusion that the phrase is a simultaneous reference to the subsequent determination of the extent of the employer‘s ultimate liability. Indeed, the placement of this phrase in the statute defining “physically impaired person” is strong textual evidence that the phrase is a reference to the injury that is relevant to the jurisdictional analysis, rather than any subsequent liability analysis. The majority disregards this important textual signal, and instead reads the phrase out of its statutory context, which leads the majority to its erroneous conclusion that the Legislature amended the wrong statute.
¶7 Text aside, the majority‘s reading of the proviso increases the MITF‘s liability by broadening the class of claimants entitled to an award, in contravention of a long-recognized legislative intent to reduce the Fund‘s liability. Everyone who qualified as “physically impaired” under the prior version of the law will still qualify. But a claimant will now be able to combine more disabilities in trying to reach PTD status than would have been possible under the previous law as it was understood when the Legislature drafted section 402. From the MITF‘s perspective, this means more claims capable of reaching the PTD threshold for an award, and thus greater liability overall.13
II.
¶8 Thus,
¶9 Accordingly, I would affirm the Court of Civil Appeals and vacate the award.