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Harns v. Multiple Injury Trust Fund9/28/2001
In 1995, Claimant Charlotte Harns suffered injuries to her right ankle, right knee, and right hip which arose out of and in the course of her employment by Goodwill Industries. In 1998, she settled her claim against Goodwill and received lump-sum benefits equivalent to permanent partial disability (PPD) of 63.5% to the whole body. Shortly thereafter, she filed a claim against Multiple Injury Trust Fund (Fund), seeking an award of permanent total disability (PTD) or, in the alternative, a material increase in PPD based on the combination of her 1995 injuries with two unadjudicated, pre-existing disabilities, i.e., 1978 right ankle injury and 1991 left ankle injury. Fund filed an answer, denying her claim on numerous bases.
After a hearing, the Workers' Compensation Court trial judge found, in pertinent part, that (1) Claimant was a "previously physically impaired person" at the time of her September 1995 injuries by reason of obvious and apparent injuries to her left and right ankles, rating each at 10% PPD, and that (2) Claimant sustained a 10% material increase due to the combination of those injuries with her 1995 injuries. The trial judge ordered Fund to pay compensation to Claimant for 41 weeks at $133.88 per week, without specifying how the period was determined.
The trial judge further found, in paragraph 5 of the order, " hat for the reasons stated in the preceding two paragraphs, this Court finds that [Claimant] is not permanently totally disabled as a result of combinable injuries against [Fund]." Those two paragraphs provide as follows:
- 3. -
That [Claimant] testified that due to the way she walks her back goes out. Also, that she has problems with her left knee. These problems affect and contribute to her inability to work. Both of these problems have arisen since her last injury on SEPTEMBER 11, 1995 and are not combinable against [Fund].
- 4. -
That Dr. Jerry McKenzie, [Claimant's] medical expert at the trial of [Claimant's] latest injury, recommended that [Claimant] receive vocational rehabilitation services. Claimant settled her claim before these services could be implemented.
Claimant filed an en banc appeal, but a three-judge panel of the Workers' Compensation Court did not disturb the trial judge's order. In this review proceeding, Claimant argues the reasons within paragraphs 3 and 4 given for denying her claim for PTD are contrary to law and not supported by the evidence, but in the event this Court does not vacate the PTD finding, alternatively argues that the trial court incorrectly calculated the weeks of benefits due for a 10% material increase.
Relying on Special Indemnity Fund v. Estill, 1997 OK 99, 943 P.2d 606, and McGough v. Special Indemnity Fund, 1997 OK 51, 939 P.2d 1136, Claimant argues, in essence, that any impairment from which she suffered at the time of the hearing on her claim against Fund should have been included in determining whether she was permanently totally disabled, without regard to whether that impairment arose before or after her most recent compensable injury. Because we conclude only disabilities or impairments which made Claimant a "physically impaired person" as defined by 85 O.S.Supp.1994 § 171, may be "combined" with her most recent compensable injury in determining Fund's liability, we disagree.
The statute governing Fund's liability is 85 O.S.Supp.1994 § 172. Subsection A of that statute addresses the disabilities which may be combined, as follows:
If an employee who is a "physically impaired person" receives an accidental personal injury compensable under the Workers' Compensation Act which results i
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