162 P.3d 973

2007 OK CIV APP 52

Claimant injured his left shoulder while working for Employer. Employer began paying TTD benefits on October 5, 2005. Claimant had surgery on November 14, 2005 and Employer continued to pay TTD benefits until March 17, 2006 for a total of 24 weeks. Claimant then filed a Form 13 on March 30, 2006 seeking additional TTD benefits. Employer refused to pay benefits, relying on the workers’ compensation statute that limited benefits to a 24-week period. 

The Workers’ Compensation Trial Court found Claimant was and remained TTD, and awarded benefits starting March 17, 2006 and continuing for up to 156 weeks in the aggregate pursuant to 85 O.S. § 22(2)(c). Employer then appealed to a 3-judge panel that affirmed the trial court’s ruling. Employer then appealed to the Court of Civil Appeals. 

Upon review, the Court discussed the rules of statutory construction adopted through case law and focused special attention on those aimed at construing statutes as a whole, giving effect to legislative intent and the plain meaning of the statutory language. Where the statutory language wasn’t clear and unambiguous, the Court resorted to the same rule relied on by Gee, where the provision that is last in place wins. Under this rule of statutory construction, the Appellate Court held that because § 22(3) was last in position and the reference to § 22(2) was last in subsection 3, the reference of § 22(3) to §22(2) controls and that § 22(2) permitted an aggregate award of up to 300 weeks of TTD in soft tissue injury cases. 

The Court also noted that even if the Gee Court’s conclusion were incorrect, it would still reach the same conclusion here because § 22(3)(d) provides that a claimant with non-surgical soft tissue injuries is limited to 8 weeks of benefits and subsequently limited to an additional 16 weeks if the claimant is recommended for surgery, but the statutory language fails to address or limit available TTD benefits after claimant has had surgery. 

Employer argues that the § 22(3)(d) language authorizing one 16-week extension for a surgical injury shows the legislature’s intent to limit benefits to 24 weeks in cases where surgery is performed. The Court rejects this argument and holds that because § 22(3)(d) fails to specifically address post-surgical claimants, the subsection was not intended to disturb the § 22(2) benefit period. The Court says this interpretation is reinforced by the reference to § 22(2) within § 22(3)(d) and produces the effect that (1) claimants who have suffered non-surgical injuries will receive 8 weeks of benefits, (2) claimants who have been recommended for surgery will receive an additional 16 weeks of benefits between the time surgery is recommended and the time surgery is performed or declined, and (3) claimants who have received surgery will receive up to 300 weeks of benefits in accordance with § 22(2).  

Employer additionally asserts that the legislature meant to include surgical cases in its limit of TTD benefits because it specifically excepted from the category of soft tissue injuries certain conditions where corrective surgery is performed. Employer says this specific exclusion must mean there is no general exclusion. The Court responds by saying it is not unusual for the legislature to give specific examples of what it means and that at most the statutory language would only mean that the 24-week limit applies to those who have not received surgery for their injury. 

The Appellate Court sustained the Workers’ Compensation Court’s ruling. 

149 P.3d 1106

2006 OK Civ App 155

Claimant suffered a soft tissue back injury while working for employer. Claimant’s treating physician placed Claimant on a light duty restriction, and employer offered the claimant no light duty within the medically imposed restrictions. Claimant presented competent medical evidence demonstrating her TTD from the date of injury through completion of rehab. The trial court, despite Claimant’s uncontroverted evidence of continuing TTD, awarded Claimant only 8 weeks of TTD and additional medical treatment.

On appeal, Claimant challenges 85 O.S. § 22(3)(d)’s “8 week soft tissue injury” limitation of TTD benefits on constitutional grounds as a deprivation of a property interest without due process of law. Claimant also asserts the court’s award of 8 weeks of TTD benefits is erroneous because of a specific reference in § 22(3)(d) to § 22(2)(b) which allows up to 300 weeks of TTD benefits for a soft tissue back injury.

In response to Claimant’s constitutional argument, the Appellate Court held that Claimant had no vested right in any particular workers compensation remedy prior to her injury, and that the legislature was not limited in its ability to restrict the amount of recoverable benefits for soft tissue injuries.

The Appellate Court moves on to discuss the conflict between the amount of TTD benefits recoverable under § 22(3)(d) and those recoverable under § 22(2)(c). Under § 22(3)(d), nonsurgical soft tissue injuries occurring after January 1, 2003 shall be compensated at a rate of 70% of the employee’s average weekly wage and shall not exceed 8 weeks. If the claimant has been recommended for surgery, an additional period of benefits may be awarded, but shall no exceed an additional 16 weeks. § 22(3)(d) goes on to say that in all cases of soft tissue injury, the employee shall only be entitled to TTD as set out in § 22(2)(c). § 22(2)(c) states that for injuries occurring after November 1, 1997, total payments of compensation for TTD may not exceed a maximum of 156 weeks except for good cause shown and shall not exceed 300 weeks in the aggregate. Thus, the 8 week limitation of § 22(3)(d) directly conflicts with the 300 week limitation of § 22(2)(c).

The Appellate Court refers to rules of statutory construction enumerated in Earnest, Inc. v. LeGrand, (1980 OK 180, ¶6, 621 P.2d 1148, 1151), which generally states that the provision that comes last in position wins. The Appellate Court concludes that because § 22(3)(d) is last in position and the reference to § 22(2)(c) is last in subsection 3, that the reference to § 22(2)(c) is controlling and permits a TTD award for up to 300 weeks in soft tissue injury cases.

The Appellate Court holds that the trial court was not constrained by § 22(3)(d) to award a maximum of 8 weeks of TTD for Claimant’s injury and was statutorily authorized to award TTD benefits to the extent authorized by § 22(2)(c). Trial court’s order is vacated and the cause is remanded for an award of TTD consistent with the medical evidence and § 22(2)(c) as has been construed by the Appellate Court.

    At trial the Plaintiff’s expert testified that even after the repairs were made to the Plaintiff’s vehicle, the value of the vehicle depreciated from $32,000.00 (before the accident) to $28,500.00 (after the accident and repairs). The jury awarded Brennen $1,750.00 for the depreciation of his vehicle; however, Aston appealed this award, and the Court of Civil Appeals reversed the award stating that the jury instruction (4.14) did not accurately state Oklahoma Law.

    The Supreme Court of Oklahoma granted certiorari and held that jury instruction 4.14 correctly states Oklahoma law, and a Plaintiff may recover damages for post-repair depreciation. The Court looked to the position taken by other jurisdictions, finding that almost all jurisdictions allow recovery for the diminution in value of personal property. The Restatement of Torts also states that “damages include compensation for (a) the difference between the value of the chattel before the harm and the value after the harm… with due allowance for any difference between the original value and the value after repairs.”

    Therefore, a Plaintiff who seeks recovery of damages is entitled not only to the value of repairs made, but is also entitled to the diminution in value of the vehicle. Many might not realize how much their vehicle has depreciated after an accident until they go to trade in the vehicle and are told that the vehicle is worth substantially less due to the accident. When considering that most dealerships now participate in vehicle history report websites such as CarFax.com, the car accident history is more easily obtainable than in the past.

The Court details the historical background for Bad Faith actions against Workers’ Compensation insurance carriers. The Court ultimately rejects the language in Kuykendall and DeAnda, which found that § 42 of the Workers’ Compensation Act provided the sole remedy for an insurer’s refusal to pay Workers’ Compensation awards. The Court looked to the plain language of the act, policies and legislative intent, finding nothing to suggest that § 42 provided the exclusive remedy.

Section 42 of the Workers’ Compensation Act addresses late payments of Workers’ Compensation benefits. When the payment of an award is not made within 10 days, the claimant may seek certification of the award. Once an order for monetary benefits has been certified, a claimant has a choice of two remedies: (1) Seek enforcement in District Court, or (2) file a Bad Faith claim. The Court notes that the Legislature never intended § 42 be exclusive because it is not adequate to deter insurance companies from refusing to pay.

Therefore, when a claimant has followed the mechanism for certifying an award pursuant to § 42(A) of the Workers’ Compensation Act, and the insurer fails to pay the award, the failure to act in good faith and fair dealing gives rise to a common law action for Bad Faith in tort. Sizemore is significant in that it overruled Kuykendall and DeAnda, cases which were at odds with a long line of cases that, at the very least, implied the Supreme Court would recognize the tort of Bad Faith in the context of a Workers’ Compensation claim.

Both sides filed Petitions for Rehearing to clarify the certification process. In response, the Supreme Court issued a supplemental order to the opinion. This paragraph created confusion as to whether certification was required to establish a Bad Faith claim. The order is difficult to reconcile with the language of the opinion and the language in the order itself. The opinion made clear that certification was required. The order first stated that the parties’ argument that an award must first be certified for enforcement was without merit. However, the final sentence held that the Bad Faith claim could be maintained regardless of whether the claimant had sought enforcement in District Court. This language provided the opportunity for clarification as to certification requirements addressed in Summers v. Zurich American Insurance Company.

    In Summers v. Zurich American Insurance Company, the Supreme Court of Oklahoma addressed the parameters of Sizemore‘s requirement of certification before a claimant may proceed in District Court for a Bad Faith claim. While Sizemore related to Defendant’s failure to pay a Workers’ Compensation award for monetary benefits, Summers involved the failure to provide non-monetary benefits ordered by the Workers’ Compensation Court for medical treatment. Summers clarified that Sizemore‘s holding extended the duty of good faith to all benefits, not just monetary.

Summers noted that the purpose of the certification requirement is to not only provide an incentive for prompt payment of Workers’ Compensation awards, but also Rule 58 certification provides the insurer the opportunity to show good cause as to why the award of benefits remains unfulfilled. When the insurer fails to show good cause after failure to provide the court-ordered benefits, “a reasonable inference arises that the reason for the failure to obey the award involves a refusal to comply, not mere negligence.” Thus, this inference should give rise to a jury instruction on a rebuttable presumption as well as lay the foundation for a punitive damage instruction.

The Court in Summers held that the Sizemore certification requirement was met. The Court explained Sizemore stating that a claimant need not “seek enforcement of a certified order” in order to bring an action for Bad Faith. Rather, the Court held that the order need only be “certified for enforcement” before a bad faith action could be maintained. In Summers, the Workers’ Compensation Court Orders evidenced that the Insurer had repeatedly failed to comply with prior Final Orders of the Workers’ Compensation Court directing Insurer to provide Claimant with medical care. Notably, the language in Summers appears to provide a District Court remedy regardless of whether the prior unsatisfied order was for specific medical treatment or reasonable and necessary medical treatment.

For monetary awards, there is essentially an election of remedies. Once the order is certified, a claimant may seek enforcement in District Court or bring an action for Bad Faith. On non-monetary awards, even though Rule 58 and Section 42(A) apply only to orders that can be reduced to a sum certain, the Court held that a claimant must utilize a similar method so as to give the insurer the same 10 day period to show good cause why the order for medical treatment should not be certified as “not provided.” This holding is consistent with the Court’s recognition that a non-monetary order could never be enforced under Section 42(A).