Opinion
No. 78972.
April 27, 1993.
Certiorari to the Court of Appeals, Division No. 3.
Petitioner sought certiorari only for purpose of reviewing Court of Appeals' award of appeal-related attorney's fees to Claimant under 20 O.S. 1991 § 15.1[ 20-15.1]. Review was not sought as to remainder of the opinion. Employer's appeal was based upon language used in Crocker v. Crocker, 824 P.2d 1117 (Okla. 1991), discussing lump sum workers' compensation disability awards. We granted certiorari, and find that Court of Appeals erred in awarding appeal-related attorney's fees and vacate that portion of the opinion. In all other respects, the Court of Appeals opinion remains as promulgated.
CERTIORARI HAVING BEEN GRANTED PREVIOUSLY THE OPINION OF THE COURT OF APPEALS IS VACATED ONLY INSOFAR AS IT PURPORTS TO AWARD APPEAL-RELATED ATTORNEY'S FEES TO CLAIMANT. IN ALL OTHER RESPECTS, THE COURT OF APPEALS OPINION SHALL STAND AS PROMULGATED. THE APPLICATION FOR APPEAL-RELATED ATTORNEY'S FEES IS DENIED.M. Thad Groom, McKinney, Stringer Webster, P.C., Oklahoma City, for petitioner.
Fred L. Boettcher, Walt Brune, Boettcher Brune, Ponca City, for respondents.
The Court of Appeals sustained the trial authority's award of workers' compensation benefits to claimant. Claimant on appeal requested appeal-related attorney's fees under 20 O.S. 1991 § 15.1[ 20-15.1] and the Court of Appeals held that appellate attorney's fees and costs should be taxed against employer. Employer sought certiorari to this Court seeking only for review of the award of appeal-related attorney's fees pursuant to 20 O.S. 1991 § 15.1[ 20-15.1] based upon Court of Appeals' finding that employer's appeal was patently frivolous and without merit. Employer did not seek review of remainder of Court of Appeals' opinion. We granted certiorari and our review is limited to the question of appeal-related attorney's fees. Certiorari not having been sought as to the remainder of the opinion, we do not disturb the Court of Appeals' opinion except for the award of appeal-related attorney's fees, which we vacate.
Section 15.1 provides:
"On any appeal to the Supreme Court, the prevailing party may petition the court for an additional attorney fee for the cost of the appeal. In the event the Supreme Court or its designee finds that the appeal is without merit, any additional fee may be taxed as costs."
The trial authority in this workers' compensation case awarded benefits to claimant for permanent partial disability and injury to his back, even though claimant had lost no wages and no time from the job, and continued to perform his normal duties. Employer appealed, relying on Crocker v. Crocker, 824 P.2d 1117 (Okla. 1991), in arguing that workers' compensation benefits relate to loss of earning capacity and not to an employee's physical disability. Because the uncontroverted evidence showed that claimant suffered no actual loss of wages or earning capacity, employer argued that trial authority erred in awarding benefits.
The Court of Appeals rejected employer's arguments, noting that Crocker was a divorce case involving whether a lump sum award of workers compensation was divisible as a marital asset. The Court of Appeals held that claimant need not prove loss of earning capacity or actual loss of wages to recover under the workers' compensation act and sustained the trial authority, citing Crocker at p. 1121, Lee Way Motor Freight, Inc. v. Highfill, 429 P.2d 745 (Okla. 1967) and other cases. Claimant also sought appeal-related attorney's fees, and the Court of Appeals, citing TRW/Reda Pump v. Brewington, 829 P.2d 15, 22-23 (Okla. 1992), as their standard, held that employer's action for review was patently frivolous and without merit, warranting an award of appellate attorney's fees and costs taxed against employer under 20 O.S. § 15.1[ 20-15.1].
We find that the Court of Appeals erred in awarding appeal-related attorney's fees under § 15.1. Employer's appeal was not "wholly without merit" nor were there "no debatable issues upon which reasonable minds might differ." Brewington, supra. In Crocker v. Crocker, in discussing whether lump sum workers' compensation disability award was divisible as a marital asset, we said: "Compensation is not paid to reimburse for injuries sustained. It is awarded for compensation in lieu of wages during the duration of the impairment." Numbered paragraph seven of the opinion began: "Because our workers' compensation law characterizes awards as money in lieu of wages . . ." In Crocker we held that a lump sum workers' compensation disability award is marital property only to the extent that it compensates for the couple's loss of income during the marriage; to the extent it compensates for post-divorce loss of earnings it is separate property. We stated that workers' compensation and disability insurance are both forms of deferred compensation, citing Christmas v. Christmas, 787 P.2d 1267-1268 (Okla. 1990).
In TRW/Reda Pump v. Brewington, 829 P.2d 15 (Okla. 1992), we found the appeals in three of the consolidated cases were patently frivolous and, in the three other consolidated cases, that they were not. Brewington was one of the appeals held not frivolous because "in light of at least two recent cases concerning causation questions in lung and/or respiratory impairment cases we are unable to say this issue had no reasonable legal or factual basis, although it was unsuccessful in the Court of Appeals." Brewington at p. 31.
We find that employer's appeal was not patently frivolous and without merit so as to warrant an award of appeal-related attorney's fees under § 15.1. Employer defended on the theory that where there was no loss of earning capacity and no loss of wages, it was error for court to award benefits. Language in Crocker supported employer's argument. Although employer's reliance upon language in Crocker was misplaced and did not prevail on appeal, the appeal was not without debatable issues on which reasonable minds might differ. Brewington, 829 P.2d at p. 23. We therefore vacate only that portion of the Court of Appeals' opinion that purports to award appeal-related attorney's fees to claimant. In all other respects, the Court of Appeals' opinion shall stand as promulgated. We also deny claimant's request for further appellate attorney's fees on certiorari.
CERTIORARI HAVING BEEN GRANTED PREVIOUSLY, WE VACATE THE OPINION OF THE COURT OF APPEALS ONLY INSOFAR AS IT PURPORTS TO AWARD APPEAL-RELATED ATTORNEY'S FEES TO CLAIMANT. IN ALL OTHER RESPECTS, THE OPINION OF THE COURT OF APPEALS SHALL STAND AS PROMULGATED. THE APPLICATION FOR APPEAL-RELATED ATTORNEY'S FEES IS DENIED.
HODGES, C.J., LAVENDER, V.C.J., and SIMMS, OPALA, ALMA WILSON, KAUGER and SUMMERS, JJ., concur.
WATT, J., dissents.