AMS STAFF LEASING INC. v. THOMPSON

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AMS STAFF LEASING INC. v. THOMPSON

2015 OK CIV APP 15

344 P.3d 1105

Case Number: 111683

Decided: 02/02/2015

Mandate Issued: 03/02/2015

DIVISION IV

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

Cite as: 2015 OK CIV APP 15 , 344 P.3d 1105

AMS STAFF LEASING INC. and DALLAS NATIONAL INSURANCE,

Petitioners,

v.

DJ THOMPSON and THE WORKERS' COMPENSATION COURT,

Respondents.

PROCEEDING TO REVIEW AN ORDER OF

THE WORKERS' COMPENSATION

COURT

HONORABLE MICHAEL W. MCGIVERN, TRIAL JUDGE

SUSTAINED

Jeffrey D. Black, Steven E. Hanna, BONHAM & HOWARD, Oklahoma City,

Oklahoma, for Petitioners

Cathy Enterline, Tulsa, Oklahoma, for

Respondents

P. THOMAS THORNBRUGH, JUDGE:

¶1 Petitioners, AMS Leasing, Inc., and Dallas National Insurance

(collectively, Employer), seek review of a workers' compensation court's

determination that Claimant D.J. Thompson's motion to reopen was timely. For the

following reasons, we sustain the workers' compensation court's decision.

BACKGROUND FACTS

¶2 Claimant injured multiple body parts in an October 26, 2006, work-related

vehicle accident. Employer admitted the claim. Claimant received treatment and

was released from medical care. On August 19, 2009, the workers' compensation

court entered an order awarding benefits for permanent partial disability (PPD)

and disfigurement, and a credit for overpayment of temporary total disability

(TTD). 1

¶3 In November 2009, Claimant filed a Form 9 "motion to set for trial"

seeking commutation of a portion of his disability award to a lump sum.

Following hearing and consideration of evidence regarding Claimant's "best

interests" and need for the commuted award, the court granted the motion in an

order filed December 23, 2009. The order commuted 25% of the PPD award to a lump

sum of $20,081.25, to be paid from the "latter end" of the August 19, 2009

award.

¶4 On December 18, 2012, Claimant moved to reopen his disability claim on

grounds of a change of condition for the worse. Employer sought dismissal of the

reopening request, asserting that reopening was barred by the statute of

limitations. The court heard argument in April 2013 and thereafter entered a

"Miscellaneous Order" that denied dismissal based on the following findings:

[A]n order commuting part of the award was granted on December 23, 2009.

Claimant filed to reopen their claim on December 19 [sic], 2012. This is

within the three (3) year period of time prescribed in both 85 O.S. Supp[.] 2005, § 43 (c)

and 85 O.S. § 318 (F).

The Oklahoma Supreme Court in Arrow Tool & Gauge v. Mead , 2000 OK 86 , 16 P.3d 1120 , stated that the "last

order" is "only that which substantially affects the range of monetary,

medical or rehabilitation benefits conferrable by workers' compensation

law."

The Court in Jackson v. Cyclo LP Gas, Inc., 2005 OK Civ App 64, 120 P.3d 888 , stated that the

"range of benefits awarded under the workers' compensation law includes

their duration."

The order to commute clearly shortens the duration of benefits. The court

therefore finds the last order in this matter (commutation) directly affects

the range of monetary benefits. As such, it is the last order of the court

to consider as to the three years limitation period. Therefore, the court

finds claimant is timely in their motion to reopen and shall allow the claim

to proceed on its merits when ready. (Emphasis

added).

¶5 Employer filed this proceeding for review. It alleges a single,

first-impression ground of error: whether the workers' compensation court's

December 2009 order granting Claimant's request to commute to a lump sum a

portion of his PPD award extended the statutorily established period of time

within which Claimant could seek to reopen his claim.

STANDARD OF REVIEW

¶6 The parties agree that this appeal presents a question of statutory

construction, an issue of law, for which the standard of review is de

novo. Arrow Tool & Gauge v. Mead , 2000 OK 86, ¶ 6 , 16 P.3d 1120 . "A compensation

tribunal's legal rulings , like those by a district court judge, are on

review subject to an appellate court's plenary, independent and nondeferential

reexamination." Id. ; see also Multiple Inj. Trust Fund v. Pullum ,

2001 OK 115, ¶ 8 , 37 P.3d 899 .

ANALYSIS

Preliminary Matters

¶7 Prior to assigning this matter to the Court of Civil Appeals, the Supreme

Court issued a show cause order questioning the reviewability of the lower

court's "Miscellaneous Order" that allowed the claim to proceed to consideration

on the merits. Employer's response argued that recent changes in the law should

permit review, and that the parties should not be required to go through the

time and expense of litigating whether a changed condition exists if reopening

is barred as a matter of law. The Supreme Court subsequently entered an order

finding that Employer's response to the show cause order satisfied the Court's

jurisdictional inquiry, and allowed this proceeding to go forward. This Court is

bound by the Supreme Court's pre-assignment ruling. LCR, Inc. v. Linwood

Props. , 1996 OK 73 , ¶¶ 4-6, 918 P.2d 1388 ; see also U.S. Fid.

& Guar. Co. v. State ex rel. Okla. Tax Comm'n , 2002 OK 42, ¶¶ 8-9 , 54 P.3d 1010 .

Applicable Law

¶8 On the date of the workers' compensation court's initial PPD order (August

2009), Oklahoma law governing the time to reopen a claim for change of

condition, 85 O.S. Supp. 2005 §

43(C), was the same as it was on the date of Claimant's injury. Section

43(C) stated:

The jurisdiction of the Court to reopen any cause upon an application

based upon a change in condition for the worse shall extend for three (3)

years from the date of the last order , and unless filed within said

period of time, shall be forever barred. An order denying an application to

reopen a claim shall not extend the period of the time set out herein for

reopening the case. (Emphasis added).

¶9 Two years later, in August 2011, the Oklahoma Legislature repealed § 43(C)

and enacted the Workers' Compensation Code. When Claimant filed his motion to

reopen in December 2012, the reopening provision was found at 85 O.S.2011 § 318(F)(eff. Aug. 26,

2011; repealed eff. Feb. 1, 2014), and stated:

The jurisdiction of the Court to reopen any cause upon an application

based upon change in condition for the worse shall extend for three (3)

years from the date of the last order in which monetary benefits or active

medical treatment was provided , and unless filed within such period of

time, shall be forever barred. An order denying an application to reopen a

claim shall not extend the period of the time set out in this act for

reopening the case. A failure to comply with a medical treatment plan

ordered by the Court shall bar reopening of a claim. This subsection shall

be considered to be substantive in nature. (Emphasis

added).

¶10 The law governing a claimant's request to reopen based on an alleged

change in condition is the law that "was in effect at the time the claimant's

condition underwent a change, and not the law in effect at the time of the

injury or the law in force at the time of the original award." Arrow Tool

& Gauge , 2000 OK 86 at ¶ 7 .

The Supreme Court also has recognized "the continued relevance of the date of

change of condition and the need for a specific on-the-record finding as to that

date." Lang v. Erlanger Tubular Corp. , 2009 OK 17, ¶ 16 , 206 P.3d 589 .

¶11 Here, it is undisputed that the date of Claimant's changed condition has

never been adjudicated. It also is clear that the statutes relevant to the

timeliness of Claimant's reopening request have changed. In addition, in their

appellate briefs, Employer and Claimant do not agree as to which statutory

version in fact applies to Claimant's reopening request.

¶12 Even so, in its brief on appeal Employer argues that, regardless of the

difference in the exact wording of §§ 43(C) and 318(F), the intent and meaning

of both statutes has not changed in terms of what constitutes a "last order,"

and that a "last order" under these statutes remains the same as was set forth

by the Oklahoma Supreme Court in Arrow Tool & Gauge v. Mead . 2 There, the

Court held that " only if [an order] substantially affects the range of

monetary, medical, or rehabilitative benefits conferrable by the workers'

compensation law, " will it qualify as a "last order" for purposes of

reopening a claim for change of condition. Id. ¶ 18 (footnote omitted).

Claimant does not dispute Employer on this point, and this also essentially was

the finding of the workers' compensation court in its determination that

Claimant's filing was timely under the limits "prescribed in both 85 O.S. Supp[.] 2005, § 43(c) and 85 O.S. § 318(F)." We

therefore rely on Arrow here in determining whether Claimant's request to

reopen was timely. 3

The Timeliness of Claimant's Reopening Request

¶13 In Arrow , the Court held that an order requiring vocational

rehabilitation evaluation 4 qualified as a "last order" and preserved a

claimant's reopening request. 2000 OK

86, ¶¶ 19-21 . In reaching its conclusion, the Court reasoned that vocational

rehabilitation services were in fact "conferrable as a benefit" under 85 O.S. § 16 and "decisive of the

claimant's eligibility" for evaluation by qualified professionals for services

that might restore a worker to gainful employment. Such an order was "connected

to the mainstream of regular compensation process," the Court said, by

"substantially affecting the monetary, medical, or rehabilitative benefits

conferrable" by the workers' compensation statutes, and therefore "passe[d]

muster" as a "trigger for the § 43C time-bar." Id. ¶ 20.

¶14 The Arrow Court further held that an order's "fitness" as a "last

order" also depends on "its consistency with the criteria which generally govern

reviewability of compensation orders"; in other words, that the order possess

qualities consistent with "reviewable" orders under the compensation law. Id.

¶ 21. Further to this point, the Court stated:

An order that is reviewable must be one which either grants or denies

an award of compensation or otherwise constitutes a final determination of

the rights between the parties. Many decisions other than those

affecting permanent disability are deemed reviewable. For example, an order

that directs an employer (or his insurance carrier) to pay all reasonable

and necessary medical expenses is regarded as reviewable. This is so because

medical treatment is an allowance in the nature of compensation.

Implicit in this teaching is the notion that orders for benefits other than

those of a purely monetary character may be treated as the functional

equivalent of an award.

Id. The Court characterized the vocational rehabilitation order, which

was reviewable, as being within "the very same category as one for monetary or

medical benefits." The order thus could be "accorded equal deference" as such an

order, and relied upon as a "time-bar trigger in reopening proceedings."

Id.

¶15 With the exception of Lang v. Erlanger Tubular Corp. , 2009 OK 17 , 206 P.3d 589 (holding the

three-year bar of § 43(C) was not subject to tolling by an employer's provision

of medical treatment), the Supreme Court has not again addressed whether a

specific order qualifies as a "last order" from which the three-year reopening

period would run. The Court of Civil Appeals has addressed specific orders as

such in several cases, however, including Jackson v. Cyclo LP Gas, Inc. ,

2005 OK CIV APP 64 , 120 P.3d 888 , cited by the workers'

compensation court in the instant case.

¶16 In Jackson , the Court held that an order extending a claimant's

medical and medication benefits, entered after a previous similar order expired,

qualified as a "last order" even though it did not expand the nature of the

benefit awarded other than to extend its duration. Holding that "the range of

benefits awarded under workers' compensation law includes their duration," the

Court found that the order in question continued prescription drug coverage

indefinitely and thus "substantially affected the range of Claimant's medical

benefits." Id. ¶ 13.

¶17 Similarly, in Gratzer v. Happy Foods , 2001 OK CIV APP 44, ¶ 12 , 24 P.3d 373 , COCA held that an

order directing payment of $500.00 to the claimant's doctor, entered several

years after an initial PPD award that did not include medical maintenance,

qualified as a "last order" that rendered the claimant's request to reopen

timely. The Court found that payment for medical treatment was "conferrable as a

benefit" under workers' compensation law, and the order thus met the standard

set forth in Arrow , so that the limitations period to seek reopening ran

from the date the order was filed. Id.

¶18 Cases reaching a contrary result and denying "last order" status, so as

to bar reopening, include Ward v. River Parks Auth. , 2010 OK CIV APP 139 , 244 P.3d 796 (order allowing change

of treating physicians did not qualify as "last order"; reopening barred);

Shapiro v. City Beverage Co ., 2010 OK CIV APP 88 , 240 P.3d 719 (order finding a

change in condition to claimant's lower back did not qualify as a "last order"

as to claimant's neck injury; motion to reopen as to neck injury was untimely);

Fleming v. Owens Illinois Inc. , 2003 OK CIV APP 52, ¶ 8 , 71 P.3d 51 (order requiring

employer to reimburse claimant for medical expenses, which followed an order

directing the employer to pay for medical care, was not a "last order" because

it "did not change Claimant's benefits" but "merely reinforced or clarified" the

earlier order; reopening therefore barred); and Herman Bros. v. Huffman ,

2001 OK CIV APP 61 , 23 P.3d 315 (order allowing an

attorney's request to withdraw did not qualify as a "last order," so that

reopening was barred). In each of the latter cases, denying "last order"

therefore appears to turn on the fact that the order in question neither added a

new benefit nor effected a change to an existing benefit.

¶19 Reviewing the facts of the instant action in light of Arrow and

the COCA opinions that have followed it leads us to the same conclusion as the

workers' compensation court. A decision to commute periodic payments to a lump

sum is one that fundamentally changes, and thus substantially affects, both the

range and the nature of monetary benefits conferrable by workers' compensation

law. Pursuant to both the Workers' Compensation Act, 85 O.S.2001 § 41(A), and the

Workers' Compensation Code, 85

O.S.2011 § 345, "[a]ll awards shall be paid by periodic installments," with

commutation of a PPD award authorized only "for good cause shown" and "by

permission of the Court."

¶20 The Supreme Court has long recognized that commutation to a lump sum

constitutes a change in the rights or status of the parties. See ,

e.g. , Derr v. Weaver , 1935 OK 1223, ¶ 9 , 47 P.2d 573 ("The power to make

changes in the method of payment is not unlimited, nor can it be exercised

arbitrarily"). Indeed, the Court has held that a commutation order entered

without notice and a hearing as to the need for such an order may be void

because it violates due process . See id. (Syllabus by the Court); see

also Independent Sch. Dist. No. 1 of Tulsa Cnty. v. Albus , 1977 OK 241, ¶¶ 22-33 , 572 P.2d 554 . These cases also

demonstrate that commutation orders meet the Arrow criteria of

reviewability. Commuting of periodic installments to a lump-sum effectively

confers a new monetary award, and "substantially affects the monetary benefits

conferrable" by the workers' compensation laws.

¶21 We further note that in this case, Claimant's evidence submitted in

support of, and attached to, the December 2009 commutation order indicates

Claimant's proposal to purchase a laptop computer with associated printer and

software, "for vocational training," with a portion of the lump-sum proceeds.

Thus, to the extent that the lump-sum award may be used for a claimant's further

education or vocation, the order would affect the claimant's rehabilitative

benefits, as well.

¶22 Employer's description of commutation orders as a mere "clarification" of

an initial PPD award allowed mainly for "humanitarian" purposes understates the

fundamental nature of the change effected by a commutation order. The argument

also fails to recognize that even an order made for a "humanitarian" purpose may

nonetheless "substantially affect" the medical, monetary, or rehabilitative

benefits conferrable by the law. We reject Employer's argument, and find instead

that the workers' compensation court's December 2009 "last order" triggered the

running of the three-year period within which Claimant could seek reopening. His

request to reopen, therefore, was timely filed.

CONCLUSION

¶23 The workers' compensation court's order of December 23, 2009, qualifies

as a "last order" that triggered the running of the three-year statutory period

within which Claimant's request to reopen his claim could be filed. Accordingly,

the workers' compensation court's order is sustained.

¶24 SUSTAINED .

RAPP, P.J., and BARNES, J., concur.

FOOTNOTES

1 The

order found Claimant sustained injury to his cervical spine, thoracic spine,

right shoulder, right hand, right leg, and right foot, as well as disfigurement

to multiple body parts. He underwent several surgeries requiring insertion of

hardware, developed an infection while hospitalized requiring debridement

surgery, and required both physical therapy and home exercise. The court found

25% PPD to Claimant's right foot; 25% PPD to his right hand (wrist); 30% PPD to

his right shoulder; 6% PPD to his cervical spine; 2% PPD to his thoracic spine;

and 30% PPD to the right leg (knee). It further found Claimant was entitled to

PPD for 382.5 weeks at $210 per week, with a total award (including

disfigurement) of $82,325, of which 16 weeks had accrued to be paid in a lump

sum of $3,360; and that Employer was entitled to $756 in overpayment of TTD

benefits. In September 2009, the court entered a nunc pro tunc order correcting

its August 2009 order, and also ordered Claimant to undergo a vocational

rehabilitation evaluation, the results of which are not included in the

record.

2 In

Lang , the Court considered the matter despite the fact that no date of

change of condition appeared in the record, and relied instead on Claimant's

argument in his brief as to what law applied. See 2009 OK 17 at ¶ 16 . A similar

situation is presented in the case before us.

3 We also

note that any attempt by this Court to construe § 43 and § 318 separately would

be pointless: If we disagreed with Employer and determined instead that a

substantive difference existed between the two provisions, our next step would

be to return the matter to the workers' compensation court for a finding as to

the date of Claimant's changed condition. The latter result is not possible due

to the Supreme Court's pre-assignment ruling that allowed this case to go

forward, in apparent reliance on Employer's argument, in its show cause

response, that the parties should not be required to go through the trouble and

expense of litigating whether a changed condition exists before a ruling is made

as to whether reopening is barred by time.

4 The

Court in Arrow noted that the workers' compensation court in that case

had also entered an order denying commutation of the claimant's award on the

same day it entered the vocational rehabilitation order. In a footnote to its

opinion, however, the Court stated that, because it found the vocational

rehabilitation order qualified as a "last order" under § 43(C), it was

"unnecessary to reach for consideration whether the order denying commutation of

the original award would also qualify." 2000 OK 86, n.33 .

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

2001 OK CIV APP 44 , 24 P.3d 373 , 72 OBJ 1307, GRATZER v. HAPPY FOODS Discussed

2001 OK CIV APP 61 , 23 P.3d 315 , 72 OBJ 1622, HERMAN BROTHERS v. HUFFMAN Discussed

2003 OK CIV APP 52 , 71 P.3d 51 , FLEMING v. OWENS ILLINOIS INC. Discussed

2005 OK CIV APP 64 , 120 P.3d 888 , JACKSON v. CYCLO LP GAS, INC. Discussed at Length

2010 OK CIV APP 88 , 240 P.3d 719 , SHAPIRO v. CITY BEVERAGE CO. LLC Discussed

2010 OK CIV APP 139 , 244 P.3d 796 , WARD v. RIVER PARKS AUTHORITY Discussed

Oklahoma Supreme Court Cases

Cite Name Level

2000 OK 86 , 16 P.3d 1120 , 71 OBJ 2896, ARROW TOOL & GAUGE v. MEAD Discussed at Length

2001 OK 115 , 37 P.3d 899 , 72 OBJ 3695, MULTIPLE INJ. TRUST FUND v. PULLUM Discussed

2002 OK 42 , 54 P.3d 1010 , UNITED STATES FIDELITY & GUARANTY CO. v. STATE EX. REL. OKLAHOMA TAX COMMISSION Discussed

1935 OK 1223 , 47 P.2d 573 , 173 Okl. 140 , DERR v. WEAVER Discussed

1996 OK 73 , 918 P.2d 1388 , 67 OBJ 2060, LCR, Inc. v. Linwood Properties Discussed

2009 OK 17 , 206 P.3d 589 , LANG v. ERLANGER TUBULAR CORP. Discussed at Length

1977 OK 241 , 572 P.2d 554 , IND. SCH. DIST. NO. 1 OF TULSA CTY. v. ALBUS Discussed

Title 85. Workers' Compensation

Cite Name Level

85 O.S. 318 , Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014 Discussed at Length

85 O.S. 345 , Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014 Cited

85 O.S. 16 , Repealed by Laws 2011, SB 878, c. 318, § 87 Cited

85 O.S. 41 , Repealed by Laws 2011, SB 878, c. 318, § 87 Cited

85 O.S. 43 , Repealed by Laws 2011, SB 878, c. 318, § 87 Discussed at Length