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Wanko v. Ponca Electric3/5/1991
Rehearing Denied April 9, 1991.
Certiorari Denied June 11, 1991
DONALD F. WANKO, PETITIONER,
v.
PONCA ELECTRIC, WESTERN CASUALTY INSURANCE, AND THE WORKERS' COMPENSATION COURT, RESPONDENTS.
Fred L. Boettcher, Walt Brune, Boettcher & Brune, Ponca City, for petitioner.
Gary W. Sleeper, Wiles, Sleeper & Mason, Oklahoma City, for respondents.
VACATED AND REMANDED WITH INSTRUCTIONS.
The opinion of the court was delivered by: STUBBLEFIELD, Judge.
On August 9, 1983, Claimant Donald F. Wanko was awarded compensation for a work-related back injury. On November 30, 1988, Claimant filed a motion to reopen on change of condition for the worse and for temporary total disability from October 18, 1988. On February 13, 1989, the trial court's order for compensation for temporary total disability and for Employer Ponca Electric to furnish necessary medical treatment was filed.
Employer timely filed its notice of appeal to a three-judge panel. When the cause came before the three-judge panel, Employer filed a "motion for new trial for newly discovered evidence," consisting of medical reports "which were unknown to [Employer] at the time of trial in this matter." The compensation court heard oral argument and gave each party five days "in which to furnish appropriate authority for his respective position regarding [Employer's] motion for new trial." The three-judge panel ultimately, granted the motion for new trial and vacated the trial court's order and remanded for a new trial.
On remand, the trial court found that Claimant had not sustained a change of condition for the worse, not because Claimant's condition was not worse, but for the reason "that any of his present complaints are due to a subsequent intervening injury of JANUARY 21, 1986." Claimant appeals from the three-judge panel's order granting a new trial and from the order of the trial court finding on remand that Claimant had not sustained a change of condition for the worse.
Claimant correctly asserts that because the ruling of the three-judge panel vacating the earlier trial court decision and remanding for new trial was an interlocutory order, he could not have appealed from the grant of new trial until there was a final appealable order. Indeed, 85 O.S.Supp. 1988 ยง 3.6 , is applicable to appellate procedures, including appeals taken to a three-judge panel. Under that provision, it was held in Hermetics Switch, Inc. v. Sales, 640 P.2d 963 (Okla. 1982), that an order of a three-judge panel which vacates the trial court's award or order and directs that the trial court rehear the case is a nonreviewable interlocutory disposition, and any claimed three-judge panel errors would be available for corrective relief after the subsequent disposition in the case which is reviewable by law. Thus, Claimant can assert any claim of error made by the three-judge panel in granting Employer's motion for new trial.
Four of Claimant's five propositions of error relate to his claim that the three-judge panel erred by vacating the February 13, 1989, order and remanding the cause for a new trial based upon Employer's claim of newly-discovered evidence. Citing Snyder v. Smith Welding & Fabrication, 746 P.2d 168 (Okla. 1986) (supplemental opinion, 746 P.2d 171 [Okla. 1987]), he first contends that the motion for new trial to the three-judge panel was unauthorized and unavailable in Workers' Compensation Court procedures, and that any motion was untimely when made more than twenty days after the decision of the tria
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