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Loftis v. Multiple Injury Trust Fund12/20/2002
Workers' Compensation law that "the law in effect at the time of an employee's later/subsequent job-related injury is to be used in fixing Fund's liability." Multiple Injury Trust Fund v. Pullum, 2001 OK 115, 37 P.3d 899. Even Fund does not contend it would not have been liable for material increase in PPD under the version of §172(A) in effect prior to the 1999 amendments.
The question then becomes whether Claimant's right to be compensated by Fund for such material increase accrued at the time of his March 1999 injury . We find that it did. "As a general rule, the accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another, a cause of action has accrued and the statute of limitations begins to run." Cowart v. Piper Aircraft Corp., 1983 OK 66, 665 P.2d 315. In Cowart, the Supreme Court noted accrual of a cause of action does not require that suit shall have commenced at the time of amendment.
The pre-amendment version of §172(A) provides:
If an employee who is a "physically impaired person" receives an accidental personal injury compensable under the Workers' Compensation Act which results in additional permanent disability, ... (Emphasis added).
Thus, it is the subsequent compensable injury received by a physically impaired person which allowed recovery from Fund. It was at the moment of his subsequent injury that Claimant's right to proceed against both his employer and Fund arose, and his cause of action accrued. The fact that Claimant had the burden to prove compensability of the injury to recover from either does not change the time of accrual.
Claimant's subsequent injury entitling him to proceed against Fund occurred on March 8, 1999. On that date he had a vested right which, once created, became absolute and was protected from "legislative invasion" by Art. 5, §54 of our state Constitution. In re Bomgardner, 1985 OK 59, 711 P.2d 92. The 1999 amendment to 85 O.S. Supp. 1994 §172, as applied to PPD actions filed after October 31, 1999, but where the subsequent injury occurred on or before that date, is an unreasonable exercise of legislative authority affecting a vested right in violation of Art. 5, §54. See, Plummer v. Special Indem. Fund, 1998 OK CIV APP 136, 965 P.2d 998.
The WCC erred in finding Claimant, as a matter of law, had no cognizable claim against Fund. The WCC's order is VACATED and this matter is REMANDED for further proceedings consistent with this opinion.
ADAMS, J., and MITCHELL, J., concur.
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