*1 Appeals purporting to vacate the statute clearly affects substantive VACATED, rights may operate orders of the trial court and retrospectively. the orders of are AF- Thomas v. Co., Cumberland Operating Appellant’s FIRMED. motion to Okl., tax costs 974, 569 P.2d Under the [1977]. in 1130(A)(5), this case is denied. terms of 10 O.S.1981 the stat- senting concur. GRAVE, ALMA ALMA OPALA, J., concurring DOOLIN, V.C.J., from the WILSON, Justice, concurring spe- WILSON, J., KAUGER and judgment. and concurring HODGES, SUMMERS, JJ., in part specially. and dis- HAR- dissenting). termination. subsequent to the one which nal or cifically today, ute which juvenile found in showing governs See, —was 1374 [1983] Matter of physical proceeding a sine proceeding (Simms, V.C.J., Jerry had been qua child abuse before us L., Okl., —crimi- non of spe- cially. my opinion the record in this case
supports parental rights. a termination of compelled, however,
I am to stress that the
rights parents can not be considered
paramount rights to the of children to nur-
ture, protection. parental care and unaccompanied
bond is not unseverable if SPECIAL INDEMNITY by assumption FUND, responsibility Petitioner, of the for the child. firmly I believe that the failure to termi- Mary Ann WASHBURN and the parental rights nate under circumstanc- Compensation Court, Workers’ here, es relfected the record would be to Respondents. judicially condone the abuse a defense- No. 61517. parental abdication, less child and sanction commission, whether omission or Supreme Court of Oklahoma. accompanying responsibility protect child from harm. July 1986.
OPALA, Justice, concurring part in
dissenting judgment. from the I, III;
I concur in Parts II I concur IV; part result Part I concur in part V;
dissent in as to Part and I dissent judgment
from the in Part VI. The 1983 1130(A)(5),
amendment of 10 O.S.1981 § thirty-one
which became days effective af- 23,1983 ter approved the Act was on June
(Okl.Sess.Laws 1983, 291, pgs. Ch. 893-
894), govern offending paren- does not
tal demeanor which the State must
rely paternal herein for severance bond.
This is so because the misconduct which
forms a basis parental termination
sought to be effected this case occurred date that amend- before effective (in January 1983).
ment May A *2 Shores,
Mark Alan Ralstin, Baum & City, petitioner. Oklahoma Hill, Sam Highsaw, Robert Oklahoma City, respondents.
SUMMERS, Justice. physically impaired This case involves Fund, person and the created and controlled 85 O.S.1981 person’s The extent 171-176. §§ previous being impairment a factor de- contribution, termining ap- the fund’s Appeal’s how peal requires we to Court found determine that the assess this factor. leeway did not have the to as- sess the variable of the claimant’s be resolved issue to is whether disability on the evidence as a assessing of a im- Rather, the held fact. that the as- paired person’s pur- previous disability had to sessment be based the schedule poses determining the contribution *3 compensation in 22 eyes of 85 O.S. at Fund, § the does the time the the claimant was hired. That Compensation Workers’ Court make this eye, to 200 or came weeks an a total of 400 assessment as a factual on matter based evidence, the is the court to make weeks. When 400 rather or bound weeks than 200 by applying plugged the assessment whatever formula, weeks is the into 500 compensation schedule of in effect at (total combined) (current was minus inju- hiring? the time The judge trial ries) (prior disability), minus 400 the re- panel review held that it make the can negative mainder is a number so that the assessment factual on as a matter based would not responsible any of the evidence. The Court of held sought this The claim. certiorari that the trial is bound make the court granted with this court which was to re- by applying assessment schedule whatever opinion. view the Court of Appeals compensation of inwas effect the time at In 85 O.S.1981 171 there are two § of the hiring. of employees classes as physically defined claimant/respondent physical- The was a impaired. injuries Those with that are “ob- ly impaired person due to total blindness and apparent vious from observation or since infancy. job She held a full-time as a by ordinary layman” examination an Anthony’s dictation transcriber at St. Hos- “any disability previously those with which pital. years She had worked there six adjudged has been and determined”. when she inju- sustained a work-connected reaching holding, Ap- the Court of ry jaws. Considering to her her ears and peals language stressed in certain Section claim under 85 O.S.1981 the trial § section, discussing 172. This both in claim- applied following the Total formula: partially ants have been who disabled and resulting disability from combined disabili- disabled, totally claimants who have been disability ties subsequent less due to the specifies physically impaired that employ- (paid by employer) degree less of subsequently injured ees are disability paid who the equals by the amount compensation job the Fund. trial shall receive full The tribunal found the for their injuries disabilities, combination of had in 100 of resulted combined “all which shall be percent permanent disability upon trans- computed provisions which the schedule and lates compensation. into 500 weeks of Compensation of the Workers’ The Act”. that Subtracted from were 200 at- weeks of Appeals construed the Section present injury payable tributable to the phrase require 172B the trial court to by the employer. As for the claimant’s previous assess the claimant’s disability un- blindness, due to disability her schedule, der Section 22 resulting in a percent, assessed it at 40 which of degree that double which the weeks, figure translates into 200 and that found trial court on the evidence as a mat- percent was also subtracted from the 100 context, placed ter of fact. When in disability figure. After deduc- these two language process of 172 states the of tions, left, there were 100 weeks and for translating degrees of disabilities into responsible. the Fund held of weeks allowed specified by Act and rates This three-judge panel The Act. review affirmed language appeal. need not construed so court on On review however, degrees Court of Appeals, the lower themselves—the three court’s present assessment was reversed. The disability, variables combined previous disability permanent injury, current had not been taken —are fact. questions into account in a claim a subsequent injury. The case was remanded for a fac- The relied tual degree, determination of “the if any, (Okl. Lee, v. Indemnity Fund permanent partial disability ... 1976) a physical in the claimant was experiencing claimant was at the date of ly impaired person due to blindness one covered this proceeding”. eye only since childhood. Again, subsequent the date of the injury is apply, case schedule would was which date, pertinent previ- and the hiring, the one in at the time effect ous disability is ques- considered a factual in effect at time of the one tion requiring determination on the evi- subsequent injury. The court held that the dence. hiring pertinent date. time This degrees preclude case does not of dis Rock Corp. Voyles, Lincoln being questions of fact. (Okl.1979), P.2d 186 this court reiterated its *4 percentage view that disability previ- the of Lee, very Since a different course has ously set “did not establish [claimant’s] by this court. We have held been charted degree disability of at the time he sus- prior disability degree that the of is to be [subsequent] tained the injury”. We stated figured subsequent inju- on the date of the that this “material issue in determining ry, hiring. not on the date of the In addi- something claimant’s claim was that tion, re- disability degree prior the of is to be quired finding a factual derived from an question considered a fact to be determined examination the of evidence.” In B.F. the on evidence. Frost, (Okl.1981), Goodrich v. 630 P.2d 321 P.2d In Doughty, 558 396 this court Voyles, reaffirmed but case noted that we stated: problem that there often proof was a over statutory provision “There is no question. Accordingly, this factual the require would the State Industrial Court presumption court a created rebuttable give weight prior conclusive to the previous impairment that a had not adjudication percentage perma- of the of changed adjudication. the last since disability. nent contrary, On the this prior adjudication only prima constitutes Appeals recognized of The Court the facie evidence that is a ‘physi- claimant Frost, decisions, Crumby, and Doughty, cally impaired person’. ground distinguished but them on the previous perma- The extent of claimant’s present previous the inju- case dealt with a disability September, nent at the time of member, ry eyes, to a scheduled where- 1973, injury was a factual issue to be as these cases dealt other with disabilities resolved the State Industrial Court. body. of the whole This distinction how- Competent medical evidence was admit- ever, a is not material distinction. In support ted to percentage claimant’s of Crumby, argued the claimant that she recovery prior his injury.” Id. at previously should found not be disabled at 397. prior disability all because her was to a part of her body different than the subse- In Penney Crumby, J.C. Co. v. quent injury. This court held that (Okl.1978), degree 1325 we held that the of “immaterial”, distinction was because subsequent date of 172 no “makes distinction a injury mattered, between sub- degree § was what not sequent to the of part body same hiring. of the time of Again, body which a Doughty, prior adjudication as in a award to as made, subsequent a a whole has a percentage of certain of been part body”. considered but not to another relevant conclusive. Sears, Tatum, & There is a distinction between Lee and Roebuck Co. v. (Okl.1978), problem Crumby, Tatum, Voyles P.2d 734 there in Doughty, previous adjudication Lee, case, percent that a five of Frost. as the instant category physically Appeals opinion followed, fell into the of persons appar- impaired “obvious could not prior disability assess disabilities, whereas the five cases ent” Ap- based on evidence. The Court the category involve claimants in since Lee peals opinion held that it could impaired physically persons virtue of considered that the claimant had blind been If previous adjudicated injuries. Lee is al- long for as as she could remember and distinguished to stand from these lowed adjusted remarkably seemed to have well. five cases and with the other combined Whereas, in Doughty, an adjustment of a review, of Appeals we Court much shorter duration was held to have a for the will have two different rules two bearing degree prior decisive on the previously impaired persons. categories of disability. In the instant case if previously adjudicated with disa- For those followed, could bilities, degree prior their dis- we treat adjustment not take lifetime of into ac- ability as a fact to be resolved on count. the evidence with the aid of rebuttable presumption degree has not find differently We that to treat And, adjudication. since the last changed employees two classes of defined in 85 prior disability is to the assessment of per O.S.1981 impaired subsequent from the date of determined jus sons would be a denial of substantial hiring. and not the When injury, date of play. tice and fair We think the better dealing group, with this the trial court has course is that followed in Voyles and Frost. some discretion. The We hold therefore that for class of upward adjusted can be either *5 people defined in Section 171 as depending on the facts and cir- downward persons impaired as injuries those with presented cumstances as evidence. Doughty, example, judge apparent for are obvious and from observation hearing evidence, had after all the the lee- layman, ordinary and examination an way , find that the had to claimant recovered previous disability their is a material issue considerably, reducing prior disability his determining claim, their and some percent 100 percent. from to 60 requires thing finding a factual de an rived from examination of the evidence.
By
Lee,
contrast under
those
for
who
work,
came to
This determination
adjudicated
with an
should be made as of
ability,
apparent
but
an
with
obvious and
of
injury
the date
and not the date of
disability, at least for those with disabilities
ruling
This
hiring.
only
will
affect
members,
degree
of scheduled
of their
degree
prior
attaching
disability
of
to the
prior disability is
as a
not treated
normal
and will
bearing
have no
Rather,
question.
fact
degree
subsequent
of
in
to follow the
bound
Section
schedule
jury
the employer
for which
is accountable.
regardless of whether or not it coincides
Special
Lee,
Insofar as
Indemnity
Fund
degree
prior
with the actual
of
disabilities
supra,
inis
conflict with this decision it is
Also,
by the
shown
evidence.
this
overruled.
group
prior
the trial court
assess
would
petitioner
Finally,
Fund asserts that be-
date,
disability from a different
the date of
blindness,
cause of claimant’s
she
opposed
hiring
subsequent
as
to the date of
permanently
totally
prior
and
disabled
injury.
to the time of her latest
and
Also,
Compensation
the Workers’
therefore, must
precluded
receiv-
question
now treats the
whether
ing any
additional
from the
apparent
itself is obvious and
support
Fund. For
Fund cites 85 O.S.1971
Indemnity
fact.
22(1),
part:
which reads in
§
Scott,
Fund v.
However,
eyes
when
“Loss of ... both
in the
assessing
it comes
... shall
to
prior
disability,
proof
if Lee and the
absence
conclusive
to the con-
permanent
trary, constitute
total disabili-
Under the
evidence
this case and
ty.”
existing
under the
case law we concur with
the conclusion
of the Court of
with
argues
per-
Fund
that since claimant was
respect to
proposition
in error. The
forming
opposed
clerical work as
to ordi-
stated in
nary
manual labor at the time of her
present
proof
she did not
conclusive
present
“In the
case the evidence is un
statutory presumption
that she
rebut
disputed
that claimant
to her 1978
totally
permanently
disabled
on-the-job injury
eight
was able to work
performance
ordinary
manual labor
day
or more hours a
notwithstanding her
injury.
before her latest
previous absence of vision. Pursuant to
Although
employed the
we have
stan-
authority
the above
we deem it irrelevant
dard of whether an individual was able to
performing
that claimant was
clerical
perform ordinary manual or mechanical la-
work rather than manual labor as claim
bor,
earning capaci-
this standard has used
living
pursue
ant was able to earn a
ty as one of the
criteria.
Dierks Lum-
gainful employment
pre
which would
Lindley,
ber and Coal Co. v.
clude
coming
claimant from
within the
(Okl.1938)this court stated:
permanent disability.”
definition of total
“Ordinarily
cannot be classi-
urges
job
that claimant’s clerical
fied as total under the Workmen’s Com-
was non-hazardous and therefore was no
pensation Law
the earning
... where
proof contrary
presumption
to the
of total
power
employee
wholly
is not
de-
permanent disability. But 85 O.S.1981
stroyed
capacity
perform
remun-
brings
estoppel
65.2
an
play.
into
It
remains_”
(em-
employment
erative
provides:
added)
phasis
“Every employer
every
insurance
permanent disability
“A total
within the
any employee
carrier who schedules
as a
Compensation
terms of the Workmen’s
person employed by
employer
for the
synonymous
Law is not
with total inca-
purpose
paying
collecting
insurance
pacity
dependence,
or total
but means a
premiums
Compensation
on a Workmen’s
continuously
lack of
to follow
policy
pays,
insurance
or who
receives or
occupation
substantially gainful
some
any premiums upon any
collects
insur-
*6
pain
without serious discomfort or
policy covering
liability
ance
the
of such
without material
to health or dan-
employer
Compen-
under the Workmen’s
added)
ger
(emphasis
to life.”
by
upon
sation laws
reason of or
See also McClure v.
Indem
employment
any
basis of the
such
Fund,
nity
(Okl.1970);
“The
of a man’s
dis-
the same force and effect as an award
ability
solely by
is not to be determined
upon
hearing.
adversary
entered
an
defining percentages
technical formulas
award,
final,
binding
Such
dependent
large
is
when
becomes
but
to a
parties
only
extent on the
and conclusive not
from the
of the individual to
perform continuously
substantially
some
also
Industrial
but
State
gainful occupation notwithstanding
Drilling
his
Court.” Cavender v. Wofford
Co.,
291,
261;
disability.”
190 Okl.
&G.S.
Drilling
Pennington,
petition
rehearing
C.
v.
151 Okl.
for
Co.
The
the Court
61, 1
(21)
P.2d 764.
twenty-one
days
filed
was
opinion,
from
of its
the date
and was
employer
employer’s
Here the
The
has
missed in
Court.
company
pretrial
a
insurance
entered into
whether
been raised
or not this court could
stipulation
employer
wherein the
and em
grant
thus
certiorari. Rule 3.9 of the
that,
ployer’s
company
insurance
admitted
peti-
Rules for the Court of
covers
although the
employment
claimant’s
rehearing. The
tions for
version in effect
by
not hazardous as defined
the Work
petition
rehearing
at the time the
for
Compensation Act, they
men’s
were never
filed
as follows:
is
liability.
estopped
deny
theless
to
Al
aggrieved
“A
party
by
who
a decision
though judicial
may
a
determination
not be
of Appeals may
of the Court
one
file
binding
person,
third
or conclusive on a
rehearing
for
petition
combined
awith
may
against
nevertheless it
be admissible
support.
good
in its
brief
On
cause be-
prove prima
him to
fact of
facie the
shown,
party
ing
may
to
be allowed
legal
entry
rendition or
and the
conse
supplement
rehearing,
brief on
but
resulting
quences
therefrom in the absence
petition
than one
rehearing
not more
for
any
contrary.
evidence to the
Mechan
may
presented by any party.
be
The
and Traders’
New
ics’
Ins. Co.
Orleans
filing
Association,
petition
rehearing
time for
Building
v. Local
for
Loan
71,
(1927).
Okl.
prescribed
for in the Court of OPALA, Justice, KAUGER, (whether with whom timely untimely) may peti or Justice, joins, dissenting. petition for tion for certiorari. Here a re hearing Appeals. filed in the Court by improperly Review certiorari was Therefore, 3.13(B) Rule not exclude would granted. This is so because the in petition in this for certiorari case. timely rehearing this case failed to seek Appeals. the Court of Her petition for support interpretation of this further rehearing was dismissed as too late for 3.13(B) Supreme has of Rule Court consideration. Her counsel’s effort now to covering petition revised Rule 3.14 for by excuse his tardiness some “extraordi- pertinent certiorari and its content. The nary utterly circumstances” is unconvinc- part respect to this issue is Subsection G ing and insufficient law to overcome the which reads as follows: presumption of correctness that attaches to petition filed “The for certiorari shall be Appeals’ the Court of dismissal. Supreme with the clerk of the A party’s timely rehearing request is (20)days twenty within from the date the qua eligibility doubtless a sine non denying dismissing pe- order either a B, for certiorari review. Rule 3.13 Rules rehearing by tition for was filed on Practice and Procedure in the Court of Appeals. The time for such Appeals Court, and on Certiorari to that (Em- application shall not extended. be 15, App. O.S.1981 Ch. 3.1 The Rule 3.13 B phasis supplied). bar should never be lowered to aid a liti- gant whose tardiness has not over- been primary dismissing peti- The reason for a cogent showing maj- come a of force rehearing tion for is filed out of is it eure. Therefore, through time. this court Every certiorari seeker whose belated re- amendment of its rules entertain a would hearing petition has met in the Court of petition for certiorari from the Court of Appeals with a dismissal order must be Appeals though petition even for re- unless, barred from review on certiorari hearing being was dismissed for out of course, clearly error or abused discretion time. There is no indication that the twen- Fundamental fairness to all demonstrated. (20) ty day period filing petition requires orderly procedure parties rehearing in the Court of was ever ' strictly litigation enforced. No area of is thus jurisdictional. intended There may lay exemption claim to from the basic nothing preclude this court from enter- practice even strictures of structured —not taining petition In this certiorari. Though the workers’ law.2 given con- case the illness of counsel was by jurisdictional time limit im- unfettered weight siderable in our decision to enter- statute, posed by review certiorari petition tain the for certiorari. regulated by rule-governed nonetheless having grant- previously Certiorari been process. Any departure court-sanctioned ed, the Court of is vacated. system inevitably from this ordered will Compensation chaos, bring caprice order the Workers’ deci- about and ad hoc rehearing sions.3 of a Court is sustained. On its review *8 provides: Pryse B Kay 1.Rule 3.13 2. Monument Co. v. District Court of Okl, 435, County, P.2d 438 [1979]. party petition rehearing "A who did not Appeals may petition for the Court of supra 3. See footnote 438. certiorari.” willing this court must never missal the traditional standards deference
relax Appeals. decision of Court Nor
to a it for itself unrestrained ever claim
should any rule-imposed impedi-
freedom from choosing process cases for
ment. game should not become
certiorari review dispensed only favor is
of chance which singled worthy who are out
to those largesse.
the court’s this claimant did not show that
Because bring timely
her counsel’s failure rehear-
ing due I casualty, to an unavoidable petition
would dismiss her for certiorari.
INDEPENDENT SCHOOL DISTRICT COUNTY,
NO. 89 OF OKLAHOMA
Oklahoma, al., Appellants, et
v. CITY,
The CITY OF OKLAHOMA
Oklahoma, municipal
corporation, Appellee.
OKLAHOMA CITY AREA VOCATION-
AL TECHNICAL SCHOOL 22, Appellant, NO.
DISTRICT CITY,
The CITY OF OKLAHOMA
Oklahoma, municipal
corporation, Appellee.
Nos. 61437.
Supreme of Oklahoma.
July 1986.