Feeler v. City of Tulsa

503 P.3d 430

Kenneth Billy FEELER, Petitioner,

v.CITY OF TULSA, Own Risk #10435, and the Oklahoma Workers' Compensation Commission, Respondent.

Case No. 118,720

Court of Civil Appeals of Oklahoma, Division No. 3.

FILED APRIL 12, 2021

Mandate Issued: November 17, 2021

W.E. Sparks, Tulsa, Oklahoma, and Bryce A. Hill, Tulsa, Oklahoma, for Petitioner,

Ashley M. Bibb, LATHAM, STEELE, LEHMAN, KEELE, RATCLIFFE, FREIJE & CARTER, P.C., Tulsa, Oklahoma, for Respondent City of Tulsa.

OPINION BY BARBARA G. SWINTON, CHIEF JUDGE:

¶1 Petitioner Kenneth Billy Feeler seeks review of an order of the Workers' Compensation Commission which affirmed the Administrative Law Judge's (ALJ) award of permanent partial disability (PPD) to Feeler. In 2017, Feeler sustained a compensable injury governed by the Administrative Workers' Compensation Act (AWCA). Previously Feeler had received 310.85 weeks of PPD for injuries predating AWCA. Respondent City of Tulsa (Employer) argued Feeler was entitled to no more than 39.15 weeks of PPD in this case because he is subject to the 350 weeks limit on cumulative PPD established in AWCA. The ALJ agreed and found Feeler had sustained 11% permanent partial impairment from his most recent injury, which resulted in an award of 39.15 weeks of PPD benefits. Feeler's prior compensable injuries occurred when the Workers' Compensation Act allowed claimants a maximum of 520 weeks of PPD. Feeler contends that he had a vested right to the higher maximum in effect at the time of his earlier injuries and that the 350 weeks of PPD provided in AWCA applies only to injuries sustained after the effective date of AWCA. It is settled that a claimant does not have a vested right to future PPD awards and a change in the PPD maximum does not deny equal protection to claimants. The law in effect at the time of the current injury applies in workers' compensation proceedings and that law provides that the sum of all PPD awards shall not exceed 350 weeks. The finding of 11% impairment was not clearly erroneous in light of the evidence, unconstitutional, nor affected by any other error of law and we therefore affirm the Commission's order.

¶2 As noted above, the facts of this case are not disputed. The parties agreed Feeler sustained a compensable single incident injury to the neck in December 2017. The parties also agreed on the rates of TTD and PPD, the date of accrual, and that Feeler had been awarded 310.85 weeks of PPD in five previous cases involving injuries sustained before the effective date of AWCA. Additionally, the parties agreed that Feeler's prior injuries were governed by the Workers' Compensation Act (WCA), which allowed claimants a maximum of 520 weeks of PPD. Finally, the parties agreed that AWCA provides that claimants may not be awarded more than 350 weeks of PPD.

¶3 At the hearing, Employer urged that Feeler had 39.15 weeks of PPD remaining under the law in effect at the time of his injury. Feeler countered that his previous injuries occurred before AWCA was effective and therefore either he was entitled to a maximum of 520 weeks, or his PPD awards under the WCC should not count against the 350 weeks provided by AWCA. In its order, the ALJ agreed that Feeler was subject to AWCA's 350 weeks PPD limit. The ALJ found Feeler sustained 11% permanent partial impairment and awarded $12,645 PPD to be paid at $323 per week, which amounted to 39.15 weeks of PPD.

¶4 Feeler appealed the order to the Commission, which affirmed. In the Commission hearing, Employer noted that 11% impairment was within the range found by the medical experts and contended the ALJ could have found Feeler sustained 11% impairment without reference to the 350 weeks limit.

¶5 Feeler now seeks review of the Commission's decision. Feeler contends the Commission erred because: AWCA expressly provides that it applies to all injuries occurring after February 1, 2014; in AWCA, the Legislature created a new administrative workers' compensation system; and AWCA does not include a way to convert PPD percentages under WCA to AWCA.¹ Under the terms of AWCA, we may modify, reverse, remand, or set aside the Commission's order only 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.

85A O.S. Supp. 2013 § 78. The parties do not dispute the facts. The issue, whether the Commission properly applied AWCA's 350 weeks PPD maximum in this case, is a question of law subject to de novo review. Rivas v. Parkland , 2000 OK 68, ¶6, 12 P.3d 452 (superseded by statute on other grounds as noted in Evans & Assocs. v. Espinosa , 2011 OK 81, ¶17, 264 P.3d 1190 ). "A legislative act is presumed to be constitutional and will be upheld by this Court unless it is clearly, palpably and plainly inconsistent with the Constitution." Hill v. American Medical Response , 2018 OK 57, ¶8, 423 P.3d 1119.

¶6 It is settled that "the law in effect at the time of the injury controls both the award of benefits and the appellate standard of review where workers' compensation is concerned." Graham v. D&K Oilfield Services, Inc. , 2017 OK 72, ¶9, 404 P.3d 863. At the time of Feeler's injury in this case, AWCA provided "(t)he sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund, shall not exceed three hundred fifty (350) weeks." 85A O.S. Supp. 2015 § 46(H). Necessarily, Feeler's benefits in the instant case are controlled by Section 46(H). As noted above, all of Feeler's previous claims occurred when the WCA provided:

The sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund and awards for amputations, and surgeries, shall not exceed one hundred percent (100%) permanent partial disability for any individual. An individual may not receive more than five hundred twenty (520) weeks' compensation for permanent partial disability, but may receive other benefits under the Workers' Compensation Act if otherwise eligible as provided in the Workers Compensation Act.

85 O.S. Supp. 2005 § 22(7). Feeler urged it was error to count the PPD awards he received in the Workers' Compensation Court as part of his 350 weeks allowed under AWCA because at the time he received his prior awards, he was subject to the 520 weeks maximum.

¶7 The Oklahoma Supreme Court addressed almost the same issue in Rivas , supra . In Rivas , the claimant had previously been awarded PPD for 99.85% impairment during the time the WCA did not limit the sum of PPD awards. At the time of the claimant's latest injury, the Act had been amended to provide that the sum of all PPD awards could not exceed 100%. The Workers' Compensation Court found Rivas had sustained 30% PPD, but it awarded him only the .15% PPD remaining to him under the 100% statute. He challenged the application of the 100% limit as an unconstitutional denial of equal protection as well as a violation of Art. 5, § 54 of the Oklahoma Constitution, which bars retroactive application of laws affecting substantive rights.

¶8 In Rivas , the court began its equal protection analysis by noting rational basis is the proper test of the Legislature's treatment of different classifications of claimants. 2000 OK 68 at ¶8, 12 P.3d 452. Under this test, the state may treat certain classes differently if the classifications are not arbitrary and capricious and bear a rational relationship to a public policy or goal. Id . The court identified two classes of claimants with prior PPD adjudications:

(1) (those who) will find their current PPD award reduced when receiving compensation for their latest disability and (2) some who will have an undiminished award because their current PPD rating does not carry them over the 100% allowable limit.

The discrimination arises because the second subclass will receive full compensation benefits for the latest disability whereas the first subclass, of which Rivas is a member, will have their compensation benefits reduced or even eliminated entirely . As a result, two individuals employed and covered by the Workers' Compensation Act may suffer identical injuries, under seemingly identical circumstances, and receive identical PPD ratings, but one will be compensated to the full extent of his PPD benefits and the other denied some or all of the PPD compensation allowed under the Act .

2000 OK 68 at ¶¶9-10, 12 P.3d 452 (emphasis added).² The court concluded this classification was rationally related to the workers' compensation policy goals of limited and certain monetary exposure for employers by ensuring an employer is never liable for more than 100% PPD compensation. Id . at ¶13. The court noted "the legislative classification ... operates alike on all persons. ... All workers covered under the Act are subject to the 100% PPD limit. ... Because the legislative classification ... applies evenhandedly to all workers and is based upon distinctions with a proper relation to the object of the Workers' Compensation Act, the classification does not violate the federal guarantee of equal protection under the law." Id . at ¶14.

¶9 The Oklahoma Supreme Court also rejected Rivas's argument that the 100% limit denied him a certain remedy as guaranteed by Art. 2, § 6 of the Oklahoma Constitution. As explained by the court, "(t)he remedy clause does not constrain the legislature, but rather compels the judiciary to be open to all persons with actionable causes. ... Because it is the legislature and not the judiciary that limited Rivas'(s) PPD compensation, this proposition must fail." Id . at ¶21.

¶10 Finally, the Oklahoma Supreme Court considered whether applying the 100% maximum deprived Rivas of a vested right, noting "even the...