joins, concurring in part and dissenting in part
T1 I concur with the majority that summary judgment is not a procedure available in the Workers' Compensation Court practice. However, in this case, the trial court ruled only on a question of law at Pre-Hearing Conference, a procedure which may be used by the trial judge to resolve issues prior to trial, I respectfully disagree with the conclusion that a summary judgment procedure must be adopted by statute rather than by court rule. The Legislature delegated the authority to the Workers' Compensation Court to adopt reasonable rules pursuant to Title 85 0.98.2001, § 1.2(E), after public hearing and adoption, subject to the approval of the Supreme Court. For example, the Supreme Court has previously approved Rule 30 of the Rules of the Workers' Compensation Court which authorizes use of subpoenas for the production of documentary evidence in accordance with Title 12 O.8.Supp.2010, § 2004.1(B).
2 I also concur that the judgment of the district court of Lincoln County which determined that Ms. Cotton is Decedent's common law spouse at the time of his death is binding on the Mother and Employer. See Anco Mfg. & Supply Co., Inc. v. Swank, 1974 OK 78, ¶ 37, 524 P.2d 7, 13 (holding prior judgment which determined husband was outside scope of employment precluded subsequent workers' compensation case). However, that determination alone does not establish com-pensability for death benefits under the Workers' Compensation Act.
*419T3 I respectfully dissent from the portion of the majority opinion which finds that Ms. Cotton's status as common law spouse is sufficient to entitle her to death benefits under the Workers' Compensation Act. The term surviving spouse is not synonymous with common law wife. Although, the Pre-Hearing Conference Order contains language that finds that Ms. Cotton is entitled to benefits in paragraph 3 of the "The Procedure" section, that language is not included in the "Order" section. The Pre-Hearing Conference Order overruled the objections of the Employer and concludes in the Order that claimant Ms. Cotton was the common law wife of Decedent at the time of his death. The Order on Appeal Affirming the Decision of the Trial Court from the three judge panel, affirmed the trial judge as follows:
After reviewing the record in this case, and being fully advised in the premises, said Judges find that the order of the Trial Judge heretofore entered in this case ... was not contrary to the weight of the evidence nor contrary to law and the same is hereby affirmed. (Emphasis added).
The Claimant's request for a hearing on the motion for summary judgment was filed on a Form 13 Request for a Pre-Hearing Conference and not on a Form 9. It is clear that the trial judge intended to make a preliminary ruling only for the purpose of resolving outstanding discovery requests that focused on the issue of whether or not there was a common law marriage. A Pre-Hearing Conference Order is not intended to serve as a final order on the payment of benefits.1
After Ms. Cotton filed a Form 9 requesting a trial, the case was held in abeyance in order to pursue mediation by agreement of the parties. The trial judge then conducted the hearing on the Form 13 request ahead of a trial on compensability. Despite the Form 9 filing, there has been no final determination by the Workers' Compensation trial judge that this claim is compensa-ble. The determination of Ms. Cotton's status as common law wife satisfies only the first statutory requirement in order to be entitled to death benefits. Title 85 0.8.2001 § 3.1(2) defines a surviving spouse as follows:
'Surviving spouse' means only the employee's spouse living with or actually dependent upon the employee at the time of his death or injury, or living apart for justifiable cause or by reason of desertion by the employee. (Emphasis added).
Ms. Cotton should be required to prove entitlement to death benefits because she either lived with Decedent, was dependent on Decedent, or lived apart from Decedent for some justifiable reason. Further, the Employer should be allowed to defend against her claim and to present evidence in furtherance of its case. I would affirm the trial judge's Order that claimant Ms. Cotton was the common law wife of Decedent at the time of his death, but remand this case back to the trial judge for a trial on compensability.
. See Rule 54 of the Rules of the Workers' Compensation Court, 85 0.S.Supp.2006, Ch. 4, App.