Williams Companies v. Dunkelgod

GURICH, J.,

concurring in part and dissenting in part:

1 1 I agree with the portion of the majority opinion that holds that the statute in effect at the time of the claimant's injury did not limit the TTD compensation to a total of 300 weeks. However, I dissent to the award of a lift van. I join the portion of Justice Kau-ger's opinion that concludes Claimant is not entitled to the award of a lift van. I also dissent to the portion of the majority opinion that holds that the 2011 amendment to the standard of review applies prospectively only.

T2 This Court's workers' compensation case law directs that statutes may apply retroactively when the Legislature has made its intent to do so clear. CNA Ins. Co. v. Ellis, 2006 OK 81, ¶ 13, 148 P.3d 874, 877.1 When an amended statute directs that it be applied retroactively, we can only disregard the statutory directive and apply the amendment prospectively if the amendment affects the substantive rights of the parties.

T3 Here, the intent of the Legislature to apply this statute retroactively can be found in the plain words of the statute: "After the effective date of this act, regardless of the date of injury, the Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds ... [tlhe order or award was against the clear weight of the evidence." 85 0.8.2011 § 340(D) (emphasis added). In Dunlap v. Multiple Injury Trust Fund, 2011 OK 14, 249 P.3d 951, we construed the 2010 amendment to the statute, which changed the appellate standard of review from any competent evidence to against the clear weight of the evidence, but was silent on the issue of retroactivity. - Consequently, we held that the amendment could only be applied prospectively. Dunlap, 2011 OK 14, 11, 249 P.3d at 951. Because the language of the 2011 statute unequivocally states that the new standard of review applies regardless of the date of injury, the question before this *1121Court is whether the amendment affects the substantive rights of the parties.

T4 In Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 15, 78 P.8d 542, 548, the amendment at issue shortened the time to request a hearing for complete adjudication from five years to three years. In applying the change prospectively, we held that "after-enacted legislation that increases or diminishes the amount of recoverable compensation or alters the elements of the claim or defense by imposition of new conditions affects the parties' substantive rights and liabilities." Id.

15 In American Airlines Inc. v. Crabb, 2009 OK 68, 221 P.3d 1289, a 2005 amendment redefined cumulative trauma, adding language throughout the specific statute.2 We held that the addition of the language "the major cause of which results from," added a new element to the claim which was not part of the definition in effect on the date of the injury. Id. 116, 221 P.3d at 1292. As such, the amendment's new requirement that a claimant prove that cumulative trauma was the "major cause" of the injury did not apply retroactively because it substantively affected the parties' rights by requiring an additional element of proof. Id.

T6 In Ellis, 2006 OK 81, T1, 148 P.3d at 875, we reviewed a 2001 amendment concerning cumulative trauma injuries. Before the 2001 amendment, the law allowed apportionment of liability between successive employers and their insurers; after the 2001 amendment, liability was imposed on the last of the successive employers to expose claimant to cumulative trauma. Id. 17, 148 P.3d at 876. We held that the obligation to pay benefits was a substantive right vested and fixed by law at the time of claimant's injury, so the amendment imposing liability on the last employer did not apply retroactively. Id. 1% 14-15, 148 P.3d at 877-78.

17 In Seruggs, two 2005 amendments to the Workers' Compensation Act were at issue.3 One amendment defined objective medical evidence as evidence that met "the criteria of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto," and the other amendment stated that compensation for permanent disability had to be supported by competent medical testimony which included application of Rule 702 of the Federal Rules of Evidence. Id. T2, 154 P.3d at 1259. We held that both before and after the 2005 amendments, a compensable claim for injury resulting from inhalation of a toxic substance was based upon scientific evidence and that application of Daubert and Kumho by the 2005 amendments made no substantive change in the law and applied to all claims regardless of the claimant's date of injury. Id. 122, 154 P.3d at 1265.

18 In King Mfg. v. Meadows, 2005 OK 78, ¶ 1, 127 P.3d 584, 586, a 1995 amendment limited the sum of permanent partial disability awards for a change in condition to 100%. The 100% limits were absent from the 1991 statute in effect at the time of claimant's initial injury. Id. We held that the award of permanent disability for a change in condition was governed by the statutory language in effect at the time of the initial injury, rather than the statutory limits in effect when the change in condition was discovered because the change in the statute affected "employees' rights regarding the amount of recoverable compensation." Id. 14, 127 P.3d at 589-90.

T9 In this case, the trial court found that the claimant had a compensable injury in 2001 to her lumbar back and awarded her TTD.4 Claimant subsequently sought other medical treatment including a three-wheeled *1122scooter and vehicle lift, which the trial court awarded.5 The Claimant now seeks a lift van, which is the subject of this appeal.

{ 10 The change to the standard of review on appeal does not add any additional elements of proof to the claim and does not increase or diminish the amount of recoverable compensation. 85 0.98.2001 § 14(A)(1), in effect on the date of claimant's injury,6 provides that an employer must promptly provide an injured employee with medical, surgical or attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary after the injury. 85 0.8.2001 § 14(A)(1). The employer is required to provide the requested treatment apparatus to the claimant only if the apparatus is medically "necessary." - Zwahlen v. B.F. Goodrich, 1988 OK 54, ¶ 4, 755 P.2d 658, 659.

T11 The Seruggs case is most analogous to the present case. There we found that both before and after the amendment, scientific evidence was required to prove a com-pensable claim resulting from inhalation of a toxic substance.7 Likewise, in this case, both before and after the amendment to the standard of review, claimant had to produce competent medical evidence to prove by the preponderance of the evidence that the lift van was medically necessary. Using the new standard, the Court of Civil Appeals reweighed the evidence and arrived at a different result than the trial judge. However, the claimant's burden to produce sufficient evidence to support her claim for a lift van remained the same.8 Her cause of action for the lift van was not "destroyed" by the 2011 change as the majority claims. Additionally, the majority's speculation that the claimant might have presented different evidence at trial had she known the standard of review on appeal would be the clear weight of the evidence standard is unconvincing. Claimant knew at trial that if her case was appealed to a three-judge panel, that the panel would have the right to reweigh the evidence based on their review under the clear weight of the evidence standard.

{12 Although not binding, I am also persuaded by decisions in several other jurisdictions that have held that workers' compensation standards of review are procedural and may be applied retroactively.9 Additionally, at least three of the four divisions of the Court of Civil Appeals have found that the language of the statute controls and have *1123applied the new appellate standard of review, regardless of the date of injury.10 18 We have said that it is not the job of this Court to "interfere 'with the wisdom or policy of the legislation.'" Rivas v. Parkland Mamor, 2000 OK 68, ¶ 15, 12 P.3d 452, 457. "The formulation of the particular elements and details of the Workers' Compensation Act clearly falls within the legislature's province." Id. 119, 12 P.8d at 458. The amendment to the standard of review found in 85 0.8.2011 § 840(D) controls, and the standard of review in this appeal should be the clear weight of the evidence standard.

DISSENT: TAYLOR, C.J.

11 I join and agree with Justice Kauger in her writing concerning the total lack of competent evidence of the medical necessity for the lift van.

. Amendments relating solely to remedies and affecting only modes of procedure "are generally held to operate retroactively and apply to pending proceedings." Scruggs v. Edwards, 2007 OK 6, 18, 154 P.3d 1257, 1261. Any doubts about whether the Legislature intended for an amendment to apply prospectively or retroactively must be resolved against retroactive effect. Ellis, 2006 OK 81, ¶ 13, 148 P.3d at 877.

. In that case, cumulative trauma was redefined as "a compensable injury, the major cause of which results from employment activities which are repetitive in nature and engaged in over a period of time and which is supported by objective medical evidence as defined in this section." Id. %14, 221 P.3d at 1292. We held that "describing the injury as a 'compensable' injury did nothing more than express a modifier that was already implied" and "specifying that objective medical evidence was necessary to prove the 'injury' and 'major cause' was a permissible procedural requirement that 'made no substantive change in the law.'" Id. 115, 221 P.3d at 1292.

. Scruggs, 2007 OK 6, MM 1-2, 154 P.3d at 1259.

. The trial court reserved the issues of psychological overlay and consequential bowel injury. The record reflects that the court has yet to decide these issues.

. The record reveals that during the hearing on the lift van, claimant testified that the vehicle lift, previously awarded by the trial court, was no longer sufficient because her car didn't work anymore.

. At the time of the trial on the lift van, 85 0.$.2005 § 14(A)(1) was in effect. The language of the 2005 statute is the same as the language of the 2001 statute.

. Scruggs, 2007 OK 6, 1 22, 154 P.3d at 1265.

. - As the Court of Civil Appeals pointed out in this case, although the parties relied primarily on the any competent evidence standard of review in their briefs, both acknowledged the statutory change to the standard of review and also argued their positions under the clear weight of the evidence standard " '[fJust in case' this Honorable Court applie{d] the standard of review of reweighing the evidence." See Answer Brief of Respondent at 12.

. See Truckstops of America, Inc. v. Engram, 220 Ga.App. 289, 469 S.E.2d 425, 427 (1996) ("'The statute is procedural, there is no vested right in preserving appellate review of the ALJ's decision under the [statute] which existed at the time the ALJ [heard] the case."); Pospisil's Case, 402 Mass. 820, 525 N.E.2d 646, 647 (1988) (holding that statute relating to standard of review had no impact on the merits questions involved in determining the amount of compensation or the parties' substantive rights to receive or not to pay compensation and so was procedural and had to be applied retroactively); Armstrong v. Asten-Hill Co., 90 Or.App. 200, 752 P.2d 312, 314 (1988) (''The scope of review has nothing to do with entitlement to 'payment of benefits as authorized, and in the amounts provided for, by the law in force at the time [of] the infury.' "); Kinninger v. Ind. Claim Appeals Office of State of Colo., 759 P.2d 766, 767-68 (Colo.App.1988) (finding that the change to the standard of review was a procedural change in the law that was applicable to all cases pending at the time the new statute became effective); Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 58 (Minn.1984) (finding that the amendment to the standard of review did not impose any new liability, burden, or obligation on either party, nor did the amendment deprive or alter the employee's right to collect benefits upon presentation of adequate proof of entitlement; and the amendments did not change the kind of evidence required to make out a claim).

. Harvey v. Auto Plus of Woodward, 2012 OK CIV APP 92, ¶ 18, 287 P.3d 410 (Div. I) ("We hold that the Legislature clearly expressed its intent that 85 O.S. § 340(D) be applied retroactively and that the statute does not affect the substantive rights of the parties."); Lee v. Sundance Rehab. Corp., 2012 OK CIV APP 77, 15, 284 P.3d 469, 471 (Div. II) ('The standard of review in effect when this appeal was ready for decision is that provided in [85 O.8.2011 § 340(d)], and we review the factual issues in this case to determine whether they are against the clear weight of the evidence."); Rural Waste Mgmt. and Indem. Ins. Co. of North America v. Harold Mock and The Workers' Comp. Court, case no. 108,330 (Dec. 9, 2011) (Div. III) (unpublished), cert. granted April 23, 2012. Division IV has issued conflicting opinions. - Compare McGuire v. N. Glantz & Sons LLC, 2012 OK CIV APP 59, 19, 278 P.3d 1060, 1061 (Div. IV) ("Claimant's petition for review was commenced August 30, 2011, after the August 26, 2011, effective date of 85 0.S.2011 § 340, which sets out the standard of review in an action for review commenced after its effective date.") with Franklin Elec. Sales, Inc., and Franklin Elec. Co., Inc. v. Tina Lanefte Aaron and The Workers' Comp. Court, Case No. 108,539 (Sept. 2, 2011) (Div. IV) (unpublished) (applying the law in effect on the date of claimant's injury, presumably because the petition in error in that case was filed before the effective date of the 2011 amendment).