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Batt v. Special Indemnity Fund12/21/1993
The question presented is whether the attorney's fee portion of an award made from the Special Indemnity Fund abates upon the death of the Employee where the Special Indemnity Statute 85 O.S. 1981 § 172 (C) (renumbered as 85 O.S. 1991 § 172 (D)) states " wards from the Special Indemnity Fund shall abate upon the death, from any cause, of the employee." We hold that according to the law in effect at the time of injury. Attorney's fee abated as part of Employee's award.
FACTS AND PROCEDURAL HISTORY
Respondent attorney Joe Farnan (Attorney) represented Lucille E. Batt (Employee) in a compensation claim for an injury Employee incurred at her place of employment. The injury occurred in February 1986 when Employee was 63 years old. Employee filed a claim in March 1986. In December 1988, the Workers' Compensation Court found that Employee was a previously physically impaired person. The court combined all prior injuries with the current injury and found her to be permanently and totally disabled. The court ordered Petitioner Special Indemnity Fund (Fund) to pay Employee $163.00 per week for five years or until Employee reached age 65 whichever period came later, according to 85 O.S. 1981 § 172 (B). The court ordered that every 5th weekly payment of $163.00, not to exceed 500 weeks, would be paid to the Attorney instead of to the Employee.
The Employee died in December 1989. The Fund discontinued payments to the Employee and stopped paying the Attorney as well. The Attorney filed a motion asking the Workers' Compensation Court to order the Fund to continue paying the attorney's fee. Attorney contended that the Fund wrongly ceased payments to him and that only payments to the Employee abated at her death. The court held that the attorney's fee awarded to the Attorney was part and parcel of the award to the Employee and therefore abated upon her death. Upon Attorney's request, a panel of three Workers' Compensation Court judges reviewed Attorney's claim. The three judge panel denied Attorney's claim for his attorney's fee past the date of the Employee's death.
The Court of Appeals sustained the judgment of the Workers' Compensation Court. On rehearing, however, the court vacated the Workers' Compensation Court three judge panel and remanded the matter with instructions citing a 1992 amendment to 85 O.S. 1991 § 30 . The amendment added the sentence " he right to any such attorney fee shall be vested at the time the award therefor becomes final." The court found this amendment dispositive, although it was not in effect at the time the award become final.
ANALYSIS
The Court of Appeals held that the Attorney's fee award was independent of the Employee's award and based its holding on Oklahoma Dep't of Transp. v. Barnes and Chamberlain v. American Airlines. Both these cases cover issues involving conversion of attorneys' fees to lump sums from awards made other than against the Fund. However, in Barnes the court recognizes that attorneys' fees are deducted from the employee's award, evidencing there is only one award made. Likewise, in Chamberlain we noted that "attorney fees are to be paid from the claimant's award."
In Chamberlain we held that the commutation of attorney fees to a lump sum is mandatory if there is an award made for permanent total disability. However, since neither case addresses the statutes governing the Special Indemnity Fund, and since Attorney in the instant case has plainly stated he is not seeking a lump sum payment, the cases are not dispositive.
The Court of Appeals also relied on Taylor v. Special Indem. Fund where we held that 85 O.S. 1981 § 30 regarding attorneys' fees in w
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