BALL v. MULTIPLE INJURY TRUST FUND

Facts & Procedural History

1 Claimant sustained a work-related injury on July 14, 2009, while employed at Goodyear Tire & Rubber Company.1 On December 13, 2010, the trial court determined Claimant had sustained 24% permanent partial disability to her back and 5% permanent partial disability for psychological overlay and awarded her $49,590.00. In that same *501order, the court found Claimant had 6% preexisting permanent partial disability to her back and 8% preexisting permanent partial disability for psychological overlay. Such findings are Crumby findings 2 and are rated assessments by the Workers' Compensation Court of the amount of preexisting unrelated impairments suffered by a claimant at the time the on-the-job injury occurred.3 At the time of her July 2009 injury, Claimant had no prior adjudicated on-the-job injuries. On June 14, 2012, Claimant settled the claim with her employer for $75,000.00 over and above the previous award due to the "known and unknown" injuries she sustained on July 14, 2009.4

T2 Although Claimant had only one previously adjudicated injury, on August 15, 2012, she filed a Form 3F seeking permanent total disability benefits from the Fund. The Form 3F lists her one injury of July 14, 2009, notes the Crumby findings, and alleges as other preexisting disabilities "Obvious & Apparent-Hearing Loss, Both Knees, R. Elbow, R. Wrist." 5 Claimant relied on expert testimony from Dr. Wilson who examined Claimant on September 4, 2012. Upon review of her medical history, Dr. Wilson concluded Claimant had prior non-adjudicated injuries to her knees, right arm, and right wrist, and hearing loss and concluded: "[It is my opinion that due to the synergistic effect of Ms. Ball's work related injuries and resultant impairments, in combination with her age, educational background, economic status, and employment history, she is permanently totally disabled from performing any gainful employment for which she is qualified now or in the future." 6

[ 3 The trial court appointed Dr. Munneke to conduct a medical exam. Dr. Munneke reviewed Claimant's medical history and concluded: "It is my opinion at this time the patient exhibits a residual disability of 29% impairment to the body as a whole due to her last work related injury. Her other injuries are not combinable, and it is my opinion the patient is not permanently totally disabled as a result of the combination of her non-work related injuries along with her work related injury, nor is she permanently totally disabled as a result of her work related injury alone."7 On October 80, 2012, Dr. Young examined Claimant on behalf of the Fund. After reviewing Claimant's medical history, Dr. Young found Claimant had 29% perma*502nent partial disability to the body as a whole, had no combinable injuries, and was not permanently and totally disabled.8

* {4 In the proceedings below, Claimant conceded she had to be a physically impaired person to seek benefits from the Fund.9 The only contested issue was whether the Crumby findings of preexisting disability made simultaneously with the adjudication of the July 2009 injury could be combined to render the Claimant a physically impaired person under 85 0.8. Supp. 2005 $ 171. On April 1, 2013, the trial court found that such were combinable and awarded Claimant permanent total disability benefits against the Fund; The court did not find any obvious and apparent injuries. The Fund appealed to a three-judge panel, and on August 15, 2013, the panel unanimously vacated the trial court's decision and found Claimant was not a physically impaired person under 85 0.8. Supp. 2005 § 171; and therefore, was not entitled to permanent total disability benefits from the Fund.

15 Claimant appealed, and the Court of Civil Appeals reversed the three-judge panel's decision. The court held that because of amendments made in 2005, the Claimant was not required to show she was a physically impaired person before seeking compensation from the Fund. COCA concluded that Claimant's July 14, 2009 injury combined with the court's Crumby findings of preexisting disability rendered Claimant permanently and totally disabled and entitled her to compensation from the Fund. The Fund petitioned for certiorari review, and we granted review on March 2, 2015.10

Standard of Review

T6 "When statutory language is unambiguous, no further construction is needed, and the unambiguous language will be applied as written." St. John Med. Ctr. v. Bilby, 2007 OK 37, ¶ 6, 160 P.3d 978, 979. If a strict, literal interpretation of the statute leads to an inconsistent or incongruent result between provisions, this Court will utilize rules of statutory construction to reconcile the discord. State ex rel. Okla. State Dep't of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875, 878. "In determining legislative intent, this Court will not limit consideration to one word or phrase but will consider the context of the ambiguous provision." Bilby, 2007 OK 37, ¶ 6, 160 P.3d at 979. "Statutory construction presents a question of law and lower court rulings in this regard are reviewed de novo." Holley v. Ace Am. Ins. Co., 2013 OK 88, ¶ 5, 313 P.3d 917, 920.

+_ Analysis

T7 The Legislature established the Fund in 1948 "to encourage employment of previously impaired workers."11 The Fund protects employers "against additional liability for that class of individuals identified as physically impaired persons" in 85 0.8. § 171.12 More specifically, the Fund "protect[s] employers from the responsibility to compensate a physically impaired person for disability resulting from the combination of the previous impairment and the subsequent impairment caused by an on-the-job injury." Multiple Injury Trust Fund v. Wade, 2008 OK 15, ¶ 13, 180 P.3d 1205, 1209. "[Thhe employer is liable only for the amount of disability caused by the subsequent accident"-the Fund "is responsible for excess awards resulting from combined disabilities." Figgins, 1992 OK 59, ¶ 6, 831 P.2d at 1382. "The Fund does not stand as a prime, original or substitute obligor." Levi v. Special Indem. Fund, 1964 OK 32, ¶ 9, 389 P.2d 620, 622. Rather, its liability "is derived from the anterior obligation of the employer" and *503"supplements the employer's obligation." Wade, 2008 OK 15, ¶ 16, 180 P.3d at 1209. The Fund's liability "does not attach until the extent of the employer's primary liability for the subsequent work-related injury has been judicially determined." Id.

T1.8"Awards against the Fund may be entered only for an obligation defined and authorized by statute," 13 and "[olnly upon authority of the statute can additional compensation be awarded for increased disability resulting from subsequent injury." 14 The Workers' Compensation Court lacks jurisdiction to enter an award against the Fund unless a Claimant proves that at the time of the subsequent injury he or she was a physically impaired person.15 A Claimant's status as a physically impaired person is in fact "precedent to" the Workers' Compensation Court's jurisdiction over the Fund. Special Indem. Fund v. Estill, 1997 OK 99, ¶ 10, 943 P.2d 606, 610.16

T9 In this case, Claimant concedes she must be a physically impaired person to seek benefits from the Fund. The 2005 version of 85 0.8. § 171 defines physmally impaired person:

For purposes of Sections 171 through 176 of this title, the term 'physically impaired person' means a person who as a result of accident, disease, birth, military action, or any other cause, has suffered the loss of the sight of one eye, the loss by amputation of the whole or a part of a member of his body, or the loss of the use or partial loss of the use of a member such as is . obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession, or any previous adjudications of disability adjudged and determined by the Workers' Compensation Court or any disability resulting from separately adjudicated injuries and adjudicated occupational diseases > even though arising at the same time.17

At the time of her July 14, 2009 injury, Claimant indisputably had no prior adjudicated on-the-job injuries. Nevertheless, she maintains the Crumby findings of 6% preexisting disability to the back and 8% preexisting disability for psychological overlay are "previous adjudications of disability" under 85 0.8. Supp. 2005 § 171.

110 In Special Indemmity Fund v. Carson, 1993 OK 64, 852 P.2d 157, this Court *504addressed whether a Crumby finding of preexisting disability was a previous adjudication under 85 O.8. 1991 § 171. At that time, Section 171 defined physically impaired person to include a person who suffered "any disability which previously has been adjudged and determined by the Workers Compensation Court...." 85 0.8. 1991 $ 171. This Court held that a Crumby finding of preexisting disability made contemporaneously with an adjudication of the subsequent injury is not a previous adjudication as required by the statutory language. The Court strictly interpreted the statute and held that such "require[d] an enumerated loss or an adjudication of disability prior to the subsequent injury for the Fund's liability: to attach." Carson, 1993 OK 64, ¶ 11, 852 P.2d at 159 (emphasis added). In response to this Court's decision in Carson, the Legislature, in 1993, amended Section 171 to specifically include a Crumby finding of preexisting disability in the definition of a physically impaired person. Section 171 was amended to provide: "'[Plhysically impaired person' means ... any preexisting disability adjudged and determined by the Workers Compensation Court...." 85 0.8. Supp. 1998 § 171.

{11 However, by 1994 the Fund was estimated to be over $16.2 Million behind in payments,18 and because of the Fund's "continuing problem with the timely payment of awards due to lack of funds," 19 a joint legislative committee was created to study the Fund including "[a] determination of the impact that dissolution of the [Fund] would have on businesses located in this State." Autry v. Multiple Injury Trust Fund, 2001 OK 79, ¶ 8, 38 P.3d 213, 215.

112 In 1999, the Legislature began the dissolution of the Fund. Bilby, 2007 OK 87, T9, 160 P.Sd at 980. "Under the 1999 amendments, for actions filed after October 81, 1999, an employee did not receive any compensation from either the Fund, the employer, or the employer's insurance for increased disability from combined injuries resulting in permanent partial disability." 20 These benefits have never been statutorily restored. In 2000, the dissolution of the Fund "was completed when the Legislature discontinued benefits from the Fund for a material increase in combined disability resulting in permanent total disability" if the last injury occurred on or after June 1, 2000.21 "The 2000 amendments expressly provided that, for actions filed after June 1, 2000, an employer bears the responsibility for the increase in disability caused by a combination of current and past injuries if the combined injuries result in permanent total disability." Bilby, 2007 OK 37, ¶ 10, 160 P.3d at 980 (internal citations omitted) (emphasis added). As such, between June 1, 2000, and November 1, 2005, the Fund had mo liability to a claimant for any benefits.

13 In 2005, however, the Legislature reinstated the Fund's liability for permanent total disability benefits due to a combination of disabilities when the date of the last injury occurred on or after November 1, 2005.22 At the same time, the Legislature amended Section 171 and specifically removed the word "preexisting," excluding a Crumby finding of preexisting disability from the *505definition of a physically impaired person. The 2005 version provides recovery only for "previous adjudications of disability adjudged and determined by the Workers Compensation Court. ..." 85 0.8. Supp. 2005 § 171. The 2005 version is substantively the same as the 1991 version addressed in Carson.23 As such, Carson controls, and the Workers' Compensation Court did not have jurisdiction to impose liability on the Fund in this case.24

1] 14 We again note that Claimant conceded she must be a physically impaired person under Section 171 to seek benefits from the Fund. Additionally, by its terms, Section 171 unambiguously applies to the entire Act, providing that "for the purposes of Sections 171 through 176 of this title, the term (physically impaired person' means...." 25 COCA, however, in this case and in a series of recent cases, has held that under 85 0.8. Supp. 2005 § 172 a Claimant no longer has to prove he or she is a physically impaired person to recover from the Fund. Contrary to COCA's conclusion,26 nothing in the 2005 amendments removed the jurisdictional requirement that a Claimant be a physically impaired person at the time of his or her subsequent injury to seek compensation from the Fund.

"[ 15 Since 1948 when the Fund was created, Section 172 has included the introductory language "an employee, who is a 'physically impaired person,' receives an accidental personal injury compensable under the Workmen's Compensation Law which results in additional permanent disability...." See 85 O.8. Supp. 1948 § 172. In 1977, Section 172 was amended and, for the first time, divided into subsections, with subsection (A) retaining the above introductory language and covering "combined disability resulting in permanent partial disability," and subsection (B) covering permanent total disability. Bilby, 2007 OK 37, ¶ 12, 160 P.3d at 980 (emphasis added). Since that time, *506subsection (B) has governed combined injuries resulting in permanent total disability, continually including the language "[if such combined disabilities constitute permanent total disability. ..."27 However, this Court has never construed subsection (B) to remove the requirement that a claimant be a physically impaired person before recovering against the Fund.

{16 In 1999, Section 172(A) was again divided into subparts, with Section 172(A)(1) retaining the above introductory language, and Section 172(A)(2) then specifically addressing permanent partial disability. Section 172(B) continued to address permanent total disability. The amendments in 2000 and 2005 continued this structure with Section 172(A)(1) retaining the above introductory language, Section 172(A)(2) addressing permanent partial disability, and Section 172(B) addressing permanent total disability. The 2005 version of Section 172 provides in relevant part: .

A. 1. For actions filed before November 1, 1999, except as otherwise provided in this section, an employee, who is a "physically impaired person" and who 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 subséquent injury alone, shall receive compensation on the basis of such combined disabilities from the Multiple Injury Trust Fund. Only disability due to an injury to the body as a whole shall be combinable with a prior body disability, except that disability to a major ' member may be combined with disability . to the body as a whole.

' A. 2. a. For actions filed before Novem- - ber 1, 1999, if such combined disabilities constitute partial permanent disability as defined in Section 3 of this title, then the employee shall receive full compensation as now provided by law for the disability resulting directly and specifically from the subsequent injury.... ©

A. 2. b. For actions filed on or after November 1, 1999, but before June 1, 2000, if the combined disabilities constitute partial permanent disability as defined in Seetion 3 of this title, then the employee shall receive full compensation as now provided by law for the disability resulting directly and specifically from the subsequent injury....

B. 1. For actions in which the subsequent injury occurred before June 1, 2000, if such combined disabilities constitute permanent total disability, as defined in Section 8 of this title, then the employee shall receive full compensation as provided by law for the disability resulting directly and specifically from the subsequent injuinjury....

2, For actions in which the subsequent injury occurred on or after June 1, 2000, but before November 1, 2005, if such combined disabilities constitute permanent total disability, as defined in Section 8 of this title, then the claimant shall receive full compensation as now provided by law for the disability resulting directly and specifically from the subsequent injury....

8. For actions in which the subsequent injury occurred on or after November 1, 2005, if such combined disabilities constitute permanent total disability, as defined in Section 3 of this title, then the employee shall receive full compensation as provided by law for the disability resulting directly and specifically from the subsequent injury.28

The phrases "if such combined disabilities" and "subsequent" used throughout Sections 172(A)(2) and 172(B) undoubtedly refer back to. the introductory paragraph of Section 172(A)(1), and the demareation of dates with'in the subdivisions of Section 172 was to address the Fund's insolvency and future lability.. COCA's interpretation of Section 172 creates discord where none exists,29 and *507ignores the obvious legislative intent over the last twenty years to decrease and limit the Fund's liability.

Conclusion

117 Under the 2005 version of 85 0.8. § $ 171-172, an employee must be a physically impaired person as defined by the applicable statute before he or she can seek benefits from the Fund. A Crumby finding of preexisting disability made simultaneously with an adjudication of an on-the-job injury may not be combined with that adjudicated injury to render the Claimant a physically impaired person under 85 0.8. Supp. 2005 § 171. The COCA opinion in this case is vacated, and the COCA opinion in Multiple Injury Trust Fund v. Perry, Case No. 111, 759 (Apr. 30, 2014) is overruled.