Opinion
Case No. 117,403
07-26-2019
Edith BUTLER, Petitioner, v. MULTIPLE INJURY TRUST FUND and the Workers' Compensation Commission, Respondent.
John R. Colbert, COLBERT COOPER HILL ATTORNEYS, Ardmore, Oklahoma, for Petitioner Lori R. Whitworth, LATHAM, WAGNER, STEELE & LEHMAN, P.C., Tulsa, Oklahoma, for Respondent
John R. Colbert, COLBERT COOPER HILL ATTORNEYS, Ardmore, Oklahoma, for Petitioner
Lori R. Whitworth, LATHAM, WAGNER, STEELE & LEHMAN, P.C., Tulsa, Oklahoma, for Respondent
OPINION BY P. THOMAS THORNBRUGH, JUDGE:
¶1 Petitioner, Edith Butler (Claimant), seeks review of an order of the Workers' Compensation Commission en banc (Commissioners or WCC) reversing an award of permanent total disability (PTD) benefits made by an Administrative Law Judge (ALJ) against the Multiple Injury Trust Fund (MITF). Following review, we reverse the decision of the WCC, reinstate and affirm the decision of the ALJ, and remand for further proceedings consistent with this opinion.
BACKGROUND
¶2 The essential background facts are not disputed. From July 24, 1991, through August 22, 2007, Claimant received PTD benefits from MITF's predecessor, the Special Indemnity Fund (SIF), for a combination of adjudicated work-related injuries to Claimant's legs. Benefits were discontinued because Claimant, born in 1942, reached age 65 in August 2007.
Since 1978, state law has stated that PTD awards from the funds are payable for a set number of years or until the employee reaches age 65, "whichever period is longer."
¶3 Claimant was later adjudicated by the workers' compensation court as having undergone a change in condition for the better. She previously had returned to work, and in May 2010 sustained an injury to her left shoulder and left hand, for which she received a permanent partial disability (PPD) award in October 2011. In May 2014, she sustained work-related injuries to her right knee, right shoulder, right hip, right arm, and right hand. She settled her claim for those injuries in November 2016 and received PPD as part of that agreement. ¶4 Claimant filed a claim against MITF, seeking PTD benefits due to the combination of her injuries. MITF admitted Claimant was PTD due to a combination of injuries, but denied liability for PTD. MITF asserted that because the SIF had paid PTD benefits for more than 16 years, until Claimant reached age 65, MITF's statutory obligation had been fulfilled, and that a "second award" of PTD to Claimant against MITF was beyond the court's jurisdiction. MITF relied heavily on Special Indemnity Fund v. Baker , 1995 OK CIV APP 74, 900 P.2d 465 (approved for publication by the Oklahoma Supreme Court). In Baker , the Court held that a claimant could not recover PTD benefits from the SIF after he had already received PTD benefits from his last employer based on the same injury. The Court found the award against SIF constituted a collateral attack on the first award and contravened SIF statutes because it allowed the claimant to receive payment twice for the same PTD determination. Id. , ¶ 12.
MITF Trial Brief, record at pp. 288-91.
¶5 An ALJ heard Claimant's case in April 2018. The ALJ rejected MITF's argument and awarded Claimant PTD pursuant to § 32 of the Administrative Workers' Compensation Act (AWCA) and the Supreme Court's opinion in Multiple Injury Trust Fund v. Mackey , 2017 OK 75, 406 P.3d 564. In Mackey , the Court allowed a second award of PTD against the Fund by a claimant who received a separate set of injuries after he returned to work following a previous PTD adjudication against MITF. See Mackey at ¶ 14. Applying Mackey to the instant case, and noting Claimant's date of birth in 1942, the ALJ awarded PTD benefits to Claimant "for a period of 15 years or until [Claimant] ... reaches the age of 65, whichever shall come later" pursuant to 85A O.S. Supp. 2014 § 32(B).
Title 85A O.S. Supp. 2014 §§ 1 through 125.
The ALJ found Baker distinguishable and therefore inapplicable to Claimant's case.
By amendment effective May 28, 2019, § 32(B) was modified to provide for PTD awards from the MITF to be paid in periodic installments for eight years or until the employee reaches 65 years of age, whichever period is longer.
¶6 MITF appealed to the WCC en banc. While stating they agreed with the ALJ that an individual may be PTD "more than once if more than one injury is involved," the Commissioners reversed the ALJ's award. Without expressly saying so, they also apparently rejected the reasoning of Mackey . Instead, they found that an "additional," "first impression" issue in this matter is whether § 32(B) establishes "a maximum limit for PTD awarded in a single claim or in a claimant's lifetime," and, reasoning as follows, found Claimant had reached the limit of what she could recover from MITF:
The statute [ § 32(B) ] does not expressly limit all awards against the MITF to fifteen years of PTD benefits, but the plural use of "awards" suggests that both the age-based and fifteen-year limitations apply to the sum of all PTD awarded against the MITF in a claimant's lifetime. In addition, we find that the age-based limitation evinces legislative intent to provide compensation until a claimant becomes eligible for Social Security disability benefits. ... [and] in light of the purpose and history of the MITF, we find no evidence the Legislature intended to allow a claimant to receive multiple fifteen-year PTD awards against the MITF....
In sum, we conclude that the purpose of [ § 32(B) ] is to establish the outer limit of the Fund's liability for the lifetime of a claimant. In this case, additional PTD benefits are barred by both the age-based and fifteen-year limitations in 85A O.S. § 32(B)....
¶7 The Commissioners, finding the ALJ's order against the clear weight of the evidence and contrary to law, reversed the award and denied Claimant benefits as against MITF. Claimant filed this appeal.
STANDARD OF REVIEW
¶8 Because Claimant's date of injury was in May 2014, the AWCA governs the law applicable to this case, including our standard of review. Brown v. Claims Mgmt. Res., Inc. , 2017 OK 13, ¶ 9, 391 P.3d 111. Under the AWCA, appellate review is governed by 85A O.S. Supp. 2014 § 78(C), under which this Court may modify, reverse, remand for rehearing, or set aside a WCC order if it was:
1. In violation of constitutional provisions;
2. In excess of the statutory authority or jurisdiction of the Commission;
3. Made on unlawful procedure;
4. Affected by other error of law;
5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence;
6. Arbitrary or capricious;
7. Procured by fraud; or
8. Missing findings of fact on issues essential to the decision.
Statutory construction presents a question of law, which we review de novo , i.e., without deference to the lower tribunal. Arrow Tool & Gauge v. Mead , 2000 OK 86, ¶ 6, 16 P.3d 1120.
ANALYSIS
¶9 As noted above, MITF admits Claimant is PTD due to a combination of injuries. The sole issue for review is whether Claimant is entitled to receive PTD benefits from MITF when she previously received PTD benefits for the full time statutorily allowed on a claim involving other injuries. MITF argues that she can recover such PTD benefits from it only once. The statute that the WCC found determinative, 85A O.S. Supp. 2014 § 32(B), states:
See note 5 above for the latest version of this provision.
B. Permanent total disability awards from the Multiple Injury Trust Fund shall be payable in periodic installments for a period of fifteen (15) years or until the employee reaches sixty-five (65) years of age, whichever period is longer.
¶10 In Multiple Injury Trust Fund v. Mackey , 2017 OK 75, 406 P.3d 564, though not specifically addressing the age- and time-based provisions of an identical statute in the now-repealed Workers' Compensation Code, the Court addressed the same argument by MITF against a claimant who had received a PTD award against the Fund for the second time. The Court stated:
The crux of MITF's position is that a claimant cannot be permanently and totally disabled more than 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 [the claimant'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 [the claimant] 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.
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. A factor that is conclusive is a PTD claimant's return to work; this factor conclusively establishes he or she is no longer [PTD] and is not entitled to further PTD compensation.
A claimant who returns to work can sustain permanent total disability from a subsequent injury and may be [PTD] more than once if more than one injury is involved. ... 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.
In [ Ball v. Multiple Injury Trust Fund , 2015 OK 64, 360 P.3d 499 ], this Court took note of the obvious legislative intent over the last twenty years to decrease and limit the Fund's liability. 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.
Id. , ¶¶ 12-15 (citations and internal quotation marks omitted)(emphasis added). The Court affirmed the lower court's award as the result of the combined effect of previously adjudicated disabilities and his last job-related injury in 2013 to his left shoulder.
¶11 We find Mackey dispositive of MITF's contention that Claimant cannot receive a second PTD award against MITF based solely on the fact that she received a previous PTD award for which MITF (or its predecessor) paid benefits. It is undisputed here that the second award to Claimant was not for the same combination of injuries that were the subject of her previous award. Thus, MITF cannot escape liability simply because it paid a PTD award to Claimant once.
¶12 Unlike the WCC, however, we find the reasoning of Mackey important when applied to a proper construction of § 32(B). WCC's construction has created what amounts to a jurisdictional or limitations bar to Claimant's request for relief here. Inasmuch as the Legislature expressly put a limitations provision for MITF claims in 85A O.S. Supp. 2014 § 33, we find no intent expressed within § 32(B) to impose a separate and additional set of limitations.
MITF asserts on appeal, as it did in the trial court, that neither the court nor the WCC is "authorized" to make a PTD award against MITF under the circumstances presented.
The applicable version of § 33 expressly provides that the right to claim compensation for MITF benefits "shall be forever barred" unless a claimant files a "Notice of Claim ... within two (2) years of the date of the last order for permanent partial disability from the latest claim against the employer." It also expressly imposes a time limit of three years for a claimant to request a hearing and final determination of a filed notice or "the same shall be barred." Section 33 was amended in 2019, and now imposes a one-year limitations period for filing the Notice of Claim and a two-year limitations period for seeking a hearing and final determination of a claim. See Okla. Sess. Laws 2019 c. 476 § 62 (HB 2367).
¶13 Moreover, the WCC's construction of the statute leaves Claimant essentially without a remedy. The WCC did not address, and its construction of § 32(B) appears to directly contradict, the language within 85A O.S. Supp. 2014 § 32(A) that states, without restriction, that an employee "shall receive compensation for permanent total disability if the combination of injuries renders the employee permanently and totally disabled." (Emphasis added). Furthermore, because 85A O.S. § 32(A) also expressly limits an employer's liability to only "the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment," the Commissioners' decision leaves Claimant without compensation for PTD whatsoever, which, again, contravenes the legislative intent expressed in § 32(A).
¶14 Finally, the WCC interpretation finds legislative intent in a presumption for which we fail to find support in the law or the evidence presented here. Without citation to legal authority or evidence that Claimant is in fact receiving benefits of any other type, the Commissioners found that the Legislature's inclusion of the age 65 limitation in § 32(B) "evinces legislative intent to provide compensation until a claimant becomes eligible for Social Security disability benefits." The statement is, at best, inaccurate, and at worst, wrong, in its implication that a person receiving PTD against the Fund automatically becomes eligible for Social Security Disability Income (SSDI) benefits when he or she reaches age 65. The statement also would be erroneous if the Commissioners intended to refer to "retirement benefits" rather than "disability" benefits, as well, since no one born after 1937 becomes entitled to full Social Security retirement benefits until after the age of 65. We refuse to read into the statute a legislative "intent" that is inaccurate legally and factually and is grounded in the invalid presumption that all persons, including Claimant, receive Social Security benefits of some type at the age of 65.
According to the Social Security Administration, if an individual is receiving Social Security "disability" benefits when they reach "full retirement age, [the] disability benefits automatically convert to retirement benefits, but the amount remains the same." https://www.ssa.gov/planners/disability/qualify.html. "Full retirement age is the age at which a person may first become entitled to full or unreduced [Social Security] retirement benefits," and anyone born after 1937 will have a "full retirement age" that is older than age 65. https://www.ssa.gov/planners/retire/retirechart.html (last accessed July 25, 2019).
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¶15 "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 ....’ " Multiple Injury Trust Fund v. Garrett , 2017 OK 62, ¶ 20, 408 P.3d 169 (quoting Huffman v. Oklahoma Coca-Cola Bottling Co. , 1955 OK 76, ¶ 18, 281 P.2d 436 ).
¶16 We find nothing in the language of the statutes governing MITF awards, 85A O.S. §§ 30 through 34, suggesting the legislature intended § 32(B) to impose a "once in a lifetime" restriction barring a "physically impaired person" who timely files a claim — regardless of the claimant's age or prior awards — from receiving PTD benefits. Though ignored in part by the WCC in its decision, the Supreme Court's observation at ¶ 15 of the Mackey opinion guides our conclusion here that, given the "obvious legislative intent over the last twenty years to decrease and limit the Fund's liability," if the Legislature had wanted to change the longstanding view of PTD that a worker can be PTD more than once based on multiple injuries, then 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." That statement remains true today.
¶17 Accordingly, we reject the WCC's interpretation of the meaning, intent and effect of § 32(B) and find it affected by error as a matter of law. We reverse its decision, reinstate and affirm the decision of the ALJ awarding PTD benefits to Claimant against MITF, and remand for further proceedings consistent with this opinion.
CONCLUSION
¶18 The WCC's interpretation and construction of 85A O.S. Supp. 2014 § 32(B) as barring Claimant from a PTD award against MITF is affected by error of law, and is reversed. The decision of the ALJ awarding PTD benefits against the Fund to Claimant is reinstated and affirmed, and this matter is remanded for further proceedings consistent with this opinion.
¶19 REVERSED AND REMANDED .
FISCHER, P.J., and GOODMAN, J., concur.