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Harns v. Multiple Injury Trust Fund9/28/2001
uld be considered by the trial court, is supported by competent evidence and must be sustained.
Finally, Claimant contends the trial court erred in calculating the benefits due for her 10% material increase. If we understand Claimant correctly, she believes the trial court should have added the disability created by her 1995 injury, 63.5%, to the material increase of 10% before determining her benefit under 85 O.S.Supp.1994 ยง 22(3)(b), which provides:
(b) With respect to injuries occurring after [November 4, 1994], in case of disability, partial in character but permanent in quality, the compensation shall be seventy percent (70%) of the employee's average weekly wages, and shall be paid to the employee for the period prescribed by the following schedule:
(1) For each percent of the first nine percent (9%) of disability, eighty percent (80%) of the number of weeks of compensation provided by law prior to [November 4, 1994];
(2) For each percent of the next eleven percent (11%) of disability, the identical number of weeks of compensation provided by law prior to [November 4, 1994];
(3) For each percent of the next thirty percent (30%) of disability, one hundred twenty percent (120%) of the number of weeks of compensation provided by law prior to [November 4, 1994];
(4) For each remaining percent of disability, the identical number of weeks of compensation provided by law prior to [November 4, 1994].
Under Claimant's view, her material increase of 10% would be governed by the fourth category of the schedule, because the disability for which Goodwill was responsible exceeded 50%, and she should have received 50 weeks (10% of 500) from Fund.
Alhjouj v. Special Indemnity Fund, 1997 OK CIV APP 68, 947 P.2d 1117, confronted a similar argument and held that only Fund's liability could be considered. Claimant contends Alhjouj indicated "that the predicating injury--the last work related injury--should be considered as that is the injury giving rise to the liability of the Fund." That contention is at odds with the Court's calculation of the benefit in that case. Faced with a 12.5% PPD caused by the "predicating injury" and 5% material increase, the Court sustained an award of 20 weeks, specifically noting that the claimant should receive 80% of the pre-amendment benefit, as provided in the first category of the schedule. Claimant has not persuaded us that Alhjouj is wrong.
Based on our review of this record, we must conclude the order of the Workers' Compensation Court is not contrary to law and is supported by competent evidence. The order is sustained.
SUSTAINED
JONES, J., and JOPLIN, J., concur.
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