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Superior Bronze & Granite of America v. Cole7/8/2005
Mandate Issued: 08/11/2005
PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT SUSTAINED
Petitioners Superior Bronze & Granite of America and Arch Insurance Company (collectively, Employer) seek review of an order of a three-judge panel of the Workers' Compensation Court affirming that part of the trial court's order adjudicating Respondent Gregory A. Cole (Claimant), a physically impaired person as defined by 85 O.S. §171, permanently totally disabled (PTD) as a result of combined disabilities, and holding Employer liable for the materially increased disability under 85 O.S. §172(B)(2). Having reviewed the record, however, we hold the order of the three-judge panel should be, and hereby is, sustained.
Claimant suffered a low back injury in a previous employment. By Joint Petition in February 2000, Claimant was adjudicated to have sustained three and one-half percent (3.5%) permanent partial disability (PPD) to the whole person.
Employer hired Claimant in April 2000. In October 2000, Claimant suffered an injury to his low back. The Workers' Compensation Court subsequently adjudicated Claimant to have suffered fifteen percent (15%) PPD to the whole person as a result of the injury to his low back while working for Employer, as well as previously unadjudicated PPD of fifteen percent (15%) to lungs and ten percent (10%) to the whole person, for a total of forty-three percent (43%) PPD to the whole person.
In February 2002, Claimant suffered an injury to his right foot and another injury to his low back while working for Employer. In July 2003, the Workers' Compensation Court determined that Claimant suffered an additional eighteen and one-half percent (18.5%) PPD to the whole person as a result of the latest compensable injuries.
In October 2003, Claimant filed his Form 3E, seeking benefits for PTD as a result of the combination of his previous disabilities and disability attributable to the latest injury. Claimant submitted to a vocational rehabilitation evaluation, and was determined suitable for retraining.
On consideration of the parties' evidence, the trial court adjudicated Claimant PTD as a result of the combination of pre-existing disabilities and disability attributable to the latest injury, holding Employer liable for payment of PTD. Apparently based on Claimant's testimony concerning his inability to drive to/from his home in Stroud and retraining or a place of employment in Tulsa, and the potential hardship a relocation to Tulsa would cause to him and his family, the trial court also determined that vocational rehabilitation was "not . . . practical."
Employer appealed. A three-judge panel modified the rate of compensation , but otherwise affirmed the order of the trial court.
In its first proposition, Employer complains that amended 85 O.S. §172, effective May 26, 2000, improperly casts upon the last employer the burden of PTD from combined disabilities, prior to that date paid by the state-operated Multiple Injury Trust Fund (Fund), as an unconstitutional impairment of contractual obligations and a taking without just compensation and due process. U.S. Const. art. I, §10, cl. 1; U.S. Const. amend. V; U.S. Const. amend. XIV, §1. Here, Employer asserts amended §172: (1) significantly and unreasonably increased its obligations under the contract of employment with Claimant by requiring it to accept a greater degree of responsibility for any on-the-job injury to Claimant after Claimant's hiring, amounting to an impermissible interference with the employment contract; and (2) shifted responsibility for combined increased PTD from the
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