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Chornister-Ozbirn v. Multiple Injury Trust Fund9/28/2001
This review proceeding involves a claim against the Multiple Injury Trust Fund (Fund) and presents the question whether a so-called Crumby finding that Claimant Freda Chronister-Ozbirn had a twenty percent pre-existing impairment to her back at the time of her most recent compensable injury allows the Workers'' Compensation Court to combine that impairment with others to find Claimant permanently totally disabled from the combination of all the impairments. Because Claimant''s most recent injury occurred prior to September 1, 1992, we conclude it does not and sustain the order refusing to do so.
Claimant sustained at least two compensable injuries during her employment by Braum''s, Inc., the most recent occurring in 1988. After initial adjudication of those claims and reopening her claims against Braum''s on those injuries, she finally settled her claims against Braum''s by joint petition. In 1992, during those proceedings, a Workers'' Compensation Court trial judge found that at the time of her most recent injury she had a pre-existing twenty percent impairment to her back which was not related to her employment (the Crumby finding). Although other portions of that order granting her benefits were later modified on en banc appeal, this finding was never vacated and the order including that finding became final, as modified.
Subsequently, Claimant filed a claim against Fund seeking a determination that she was permanently totally disabled. In doing so, Claimant asked the trial court to combine the disability caused by her most recent injury (1988 injury) with the disability caused by a prior injury for which she had received compensation and the twenty percent pre-existing impairment to her back as determined by the trial court in 1992. The trial court refused to consider the back impairment, concluding that Claimant did not have an "obvious and apparent" impairment to her back prior to her most recent injury, and that the 1992 Crumby finding did not make her back impairment combinable in order to determine Fund''s liability.
In this review proceeding, Claimant does not take issue with the trial court''s finding on the "obvious and apparent" issue but argues only that the Crumby finding allowed the trial court to combine the back impairment with her other disabilities. In so arguing, Claimant recognizes that the 1992 Crumby finding could not be used to make her a "physically impaired person" as defined by 85 O.S.Supp.1986 § 171, because it could not be seen as a disability that "previously had been adjudged and determined by the Workers'' Compensation Court" at the time of her 1988 injury. See Special Indemnity Fund v. Carson, 1993 OK 64, 852 P.2d 157. However, according to Claimant, Carson does not prevent the Workers'' Compensation Court from combining the disability shown by the 1992 Crumby finding with the disability from the 1988 injury, because Claimant''s status as a "physically impaired person" in 1988 was established by a prior work-related injury which had been adjudicated and for which she received benefits.
This argument ignores key provisions contained in 85 O.S.Supp.1986 § 172 which control the manner in which Fund''s liability is determined. Subsection A of that statute provides, in pertinent part:
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 so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone, the employee shall receive compensation on the basis of such combin
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