Elam v. Workers' Compensation Court of Oklahoma , 1983 Okla. LEXIS 148 ( 1983 )

SIMMS, Vice Chief Justice:

Dewey Elam dba Yellow Cab Co. asks this Court to assume original jurisdiction and grant a writ of mandamus allowing the filing of an appeal from the Workers’ Compensation Court without the undertaking with the Administrator of the Workers’ Compensation Court as required by 85 O.S. Supp.1980 § 3.6(B). We deny the writ and dismiss the petition in error filed under the same number.

Paul Avery Sharp, claimant below, and Dewey Elam, respondent (the parties will be referred to as they were in the Workers’ Compensation Court) entered into a contract wherein Elam leased a cab and furnished a dispatcher to Sharp. Although the contract termed the relationship of the parties as that of lessor and lessee, after claimant was injured on the job the trial judge of the Workers’ Compensation Court found his relationship with respondent to be that of employee/employer. The trial judge further found that claimant’s injuries were sufficient to establish temporary compensation and that such compensation should continue for and during claimant’s period of temporary total disability, not to exceed 300 weeks. Elam filed an appeal to the court en banc; the court ordered payment of the accrued portion of the award and interest at the rate of 18% per annum from the award date.

At issue in this cause is the following portion of § 3.6(B):

“Any party litigant desiring to appeal directly from such order, decision or award to the Supreme Court, shall, within twenty (20) days after a copy of the order, decision or award has been sent by the Administrator to the parties affected, commence an action in the Supreme Court of the State to review such order, decision or award ... Provided, however, no proceeding to reverse, vacate or modify any order, decision or award of the Workers’ Compensation Court sitting en banc or judge of the court wherein compensation has been awarded an injured employee shall be entertained by the Supreme Court unless the Administrator shall take a written undertaking to the claimant executed on the part of the respondent or insurance carrier, or both, with one (1) or more sureties to be approved by the Administrator, to the effect that the appellant will pay the amount of the award rendered herein, together with interest thereon at the rate of eighteen percent (18%) per year from the date of the award by the judge of the Court and all costs of the proceeding, or on the further order of the Workers’ Compensation Court sitting en banc or judge of the Court after the appeal has been decided by the Supreme Court, except that municipalities and other political subdivisions of the State of Oklahoma are exempt from making such written undertakings.”

In Respondent Elam’s application to assume original jurisdiction he contends that because of the statutory requirement of a written undertaking he is denied his right to appeal to this Court in violation of due process and equal protection guaranteed in the Fourteenth Amendment to the United States Constitution and in art. 2, sections 6, 7, and 19 of the Oklahoma Constitution.

Respondent’s primary argument is that because of his poverty he is unable to post the requisite undertaking and he is therefore denied access to the Court, in violation of art. 2, sec. 6 of the Oklahoma Constitution. He asserts that he is denied equal protection because indigent litigants unable to post court costs may proceed in forma pauperis under 28 O.S.1971, § 152, whereas there is no similar waiver provisions for an undertaking on appeal.

We find respondent’s arguments unconvincing.

The function and purpose of an undertaking on appeal is not comparable to that of court costs, and respondent’s position is not analogous to an indigent litigant unable to post court costs.

Court costs are imposed primarily to recoup costs for the state and they serve as a mechanism for judicial resource allocation. It is true that as a matter of constitutional law court costs may not impede access to the courts, at least in certain actions. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

The purpose of an undertaking on appeal however, is entirely different. It protects not the relatively small interest of the state in obtaining a portion of operational costs, but the very significant interest of the successful litigant below in being secure in that which he was awarded. Where such procedural provisions are reasonably tailored to safeguard property interests and are uniformly applied, they will be upheld. See, e.g., Lindsay v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972).

The undertaking on an appeal is of particular importance in Workers’ Compensation actions, a fact we recognized in Indemnity Co. v. Saling, 166 Okl. 133, 26 P.2d 217 (1933). In Saling the requirement of an undertaking as a condition precedent to appeal was also challenged, and we upheld the requirement. While the Saling decision concerned a time that the State Industrial Commission was an administrative body, exercising quasi-judicial power in the administration of the Workers’ Compensation Act, the rationale of the following observation remains as relevant today:

“... We must bear in mind that the Workmen’s Compensation Act when reviewed as a whole contemplates prompt payment of the compensation provided for in the act. Provision is made for an injured claimant to secure the payment of the compensation, and in the event one employer desire to carry his own risk he may do so only on proper proof of financial ability. * * * The review of an award by an original proceeding in this Court of necessity requires some delay due both to the procedure involved as well as to the congested condition of the docket in this Court, even though the review is by law given preference over other cases. During this interval of time insurance companies may fail or employers become insolvent. A bond in the nature of a supersedeas executed to secure the payment of the award sought to be reviewed is but an added protection to the claimant. Since those operating either as employers or insurance carriers are required by law to be financially able to respond for compensation awarded, it would necessarily follow that little difficulty will be encountered by them making a bond insuring the payment of an award for which the commission has already held them liable. But if they were bordering on insolvency, the crying need of a bond is too apparent to permit any question concerning the reasonableness of this requirement to obtain a judicial review.” 26 P.2d at 222.

See, also, Dritch v. Ray, 194 Okl. 235, 149 P.2d 260 (1944); Tidal Oil Co. v. State Ind. Comm’n., 140 Okl. 5, 282 P. 359 (1929); Blake v. Smock, 158 Okl. 204, 13 P.2d 113 (1932).

The requirement of. an undertaking under § 3.6(B) is not to penalize the employer but to secure payment for the insured claimant.

We have very recently again upheld the validity of the requirement of the statutory undertaking. See, Texas Oklahoma Express v. Sorenson and the Workers’ Compensation Court, Okl., 652 P.2d 285 (1982).

Respondent’s additional argument that the disparity in treatment between certain aspects of Workers’ Compensation cases and ordinary district court cases denies him equal protection of the laws, was also presented in Texas Oklahoma Express.

We rejected that argument based on the real and substantial legal and public policy considerations in workers’ compensation cases, Sorenson, supra, at pg. 290, 291, and that decision is clearly controlling here.

The fact that the workings of the Workers’ Compensation Court differ from other courts does not violate constitutional protections. Respondent was given his right to due process. He defended himself in the forum selected by claimant, he was allowed an appeal as a matter of right to the Court en banc. Should respondent wish to appeal to the highest state court for an original proceeding, he must comply with the condition precedent determined by the legislature as necessary to secure claimant’s award.

WRIT DENIED. APPEAL DISMISSED.

BARNES, C.J., and IRWIN, HODGES and LAVENDER, JJ., concur. DOOLIN, HARGRAVE, OPALA and WILSON, JJ., dissent.