Special Indemnity Fund v. Laxton , 1965 Okla. LEXIS 309 ( 1965 )

HALLEY, Chief Justice.

This is an original proceeding brought by the Special Indemnity Fund (designated in this opinion as the “Fund”) to review the State Industrial Court’s order that it pay the trial judge’s order of June 3, 1963, in a lump sum with interest from June 23, 1963.

The facts are not in dispute. On April 10, 1961, claimant filed his first notice of injury and claim for compensation, stating that while employed by Thomason Lumber Company he sustained an accidental injury arising out of and in the course of his employment when he received multiple injuries and burns to his body. The trial judge entered an order on April 17, 1963, finding that claimant sustained an accidental injury as alleged and awarded claimant compensation based upon 55% permanent partial disability to the body as a whole. On June 3, 1963, the trial judge entered an order, pursuant to a hearing on May 29, 1963, approving a settlement of the above award on joint petition.

Claimant was then adjudged permanently totally disabled on June 3, 1963, from the cumulative effects of a pre-existing injury considered in combination with his last accidental injury and the trial judge, after making the deductions provided by law, “* * * ORDERED That the Special Indemnity Fund begin payments to claimant forthwith of $30.00 per week,, and continue same until the entire award of' $4,190.00 has been paid * * On-, June 12, 1963, the Fund appealed the award, to the court en banc. The order of the-trial judge of June 3, 1963, was “* * adopted, affirmed and made the judgment, and order * * * ” by unanimous vote-of the entire Industrial Court on October 28, 1963, and a certified copy of the Order-on Appeal was mailed to the parties affected on October 30, 1963.

The Fund began payments of benefits to-claimant by forwarding him a check for $60.00, dated November 8, 1963, representing two weeks’ compensation, and thereafter by sending him its second check for-$60.00, dated November 22, 1963, representing the following two weeks’ compensation.. The record does not reflect other payment and both checks were refused and returned: by claimant.

On November 26, 1963, claimant filed a., motion to accelerate his award against the' Fund in the Industrial Court wherein he contended that the Fund had failed for over ten days to pay said award, or a portion-, thereof as ordered, and that he was entitled,, under 85 O.S.1961 § 41 and § 42, to an order-finding the Fund to be in default. He-prayed that all unpaid portions, including-future periodical installments unpaid, “be-accelerated, commuted to a lump sum, and*, ordered paid to the claimant together with.-6% interest from the 14th day of June, * * *."

A hearing was had upon the motion before a trial judge, and thereafter on March-, 4, 1964, the Fund was ordered “to pay, in a. lump sum, the order of the trial judge, of' June 3, 1963, with interest at the rate of 6 - per cent per annum, beginning June 23,. 1963.” Our review of this order is sought: by the Fund.

In argument, the Fund first contends that it is the duty of the Industrial’ Court to make specific findings of ultimate-facts as well as conclusions of law upom which an order is made, and that the order-in this case is too indefinite and uncertain for judicial interpretation. We do not find that the order, insofar as it orders the Fund to pay the award in a lump sum with interest, is indefinite and uncertain. Excise Board of Grady County v. Griggs, 192 Okl. 636, 138 P.2d 829; Pruitt v. Mid-Continent Pipe Line Company et al., Okl., 361 P.2d 494; McMurtrey v. American Association of Petroleum Geologists et al., Okl., 383 P.2d 215.

The Fund next urges that the Industrial Court’s final order was October 28, 1963, and that it complied with the order by making its first payment of $60.00 on November 8, 1963. It relies upon Adams v. City of Anadarko et al., 202 Okl. 72, 210 P.2d 151; 101 C.J.S. Workmen’s Compensation § 782; Nelson v. Central State Roofing Company et al., Okl., 345 P.2d 866; Edmonds v. Skelly Oil Company et al., 204 Okl. 471, 231 P.2d 360; and Higgs v. State Industrial Commission et al., 197 Okl. 281, 170 P.2d 240, in support thereof.

We agree with the cited authorities and the Fund’s contention that the award made by the Industrial Court on the hearing upon the appeal became the final order and award of the Industrial Court, but the Fund failed to comply with that order. The Order on Appeal directed the Fund to begin payments to claimant on June 3, 1963, of $30.00 per week; and on October 28, 1963, claimant was entitled to a lump sum payment of all installments accrued from June 3, 1963, and a continuation of weekly benefits in accordance with the terms of the order. When the Fund failed to pay in a lump sum all installments accrued within ten days after October 28, 1963, it failed to comply with the court en banc’s order and was therefore in default.

We think that Special Indemnity Fund v. Bryant et al., 205 Okl. 630, 239 P.2d 1014, is in point here. We held in the second paragraph of the syllabus:

“The payments to be made by Special Indemnity Fund in an award against it under the provisions of 85 O.S.1945 Supp. § 172, begin when the payments have ceased in the award made against the employer; and where an order has been made on joint petition and payments thereof made by the employer, the State Industrial Commission is authorized to order payments on the award against Special Indemnity Fund to commence immediately thereafter.” (Emphasis added)

However, we are of the opinion and hold that the trial judge erred in ordering the Fund to pay future periodical installments in a lump sum in advance of their accrual. The standards governing the commuting of future periodical installments of an award to a lump sum against the Fund in advance of their accrual are entirely different and dissimilar from those which apply to awards against employers and their insurance carriers. An award against an employer and insurance carrier may be commuted to a lump sum in advance of accrual under 85 O.S.1961 § 41, but in such an action against the Fund, the trial tribunal is governed and its powers restricted by the terms of 85 O.S.1961 § 172.

85 O.S.1961 § 41, provides in part:

“ * * * Failure for ten days to pay any final award or any portion thereof as ordered, shall immediately entitle the beneficiary to an order finding the respondent and/or insurance carrier to be in default and all unpaid portions, including future periodical installments unpaid, shall thereupon become due and may be immediately enforced as provided by Section 13366 of this Chapter.” (Emphasis added)

85 O.S.1961 § 172, provides in part:

“ * * * After payments by the employer or his insurance carrier, if any, have ceased, the remainder of such compensation shall he paid out of the Special Indemnity Fund provided for in § 173 of this title, in periodical installments.

“Provided, that whenever an injured person receives an award in excess of Seven Thousand Five Hundred Dollars ($7,500.00), payable out of the Special Indemnity Fund, said injured employee, for good cause shown, in cases of extreme hardship, may have said award commuted to a lump sum payment by permission of a majority of the members of the State Industrial Court, said lump sum payment not to exceed twenty-five percent (25%) of the total award payable by the Special Indemnity Fund. All other awards payable out of the Special Indemnity Fund shall be paid in periodical installments and without commutation thereof to a lump sum. Laws 1943, p. 258, § 2; Laws 1945, p. 418, § 1; Laws 1953, p. 432, § 1; Laws 1961, p. 640, § 1.” (Emphasis added)

The trial judge erroneously based his order directing the Fund to pay periodical installments to claimant in a lump sum in advance of their accrual upon 85 O.S. 1961 § 41, when the court was clearly and expressly restricted by the mandatory provisions of 85 O.S.1961 § 172, directing that awards against the Special Indemnity Fund shall be paid in periodical installments without having an award commuted to a lump sum, except as provided therein.

The soundness of this conclusion was indicated in Special Indemnity Fund v. Hull et al., Okl., 369 P.2d 162, 163, wherein we said:

“The standards governing commutation of awards against the Special Indemnity Fund are entirely different and dissimilar from those which apply to awards against employers. An award against the employer may he commuted to a lump-sum in the exercise of a wide discretion and ‘plenary authority’ vested in the State Industrial Court by the provisions of 85 O.S.1951 § 41. Cole Spurgeon Drilling Company v. Parris, Okl., 346 P.2d 173. But in commutation proceedings against the Fund, the trial tribunal is governed and its power restricted by the terms of the quoted statute (85 O.S.Supp.1959 § 172) which plainly requires claimant to sho'.v proof of a ‘good cause’ for relief in a situation characterized by ‘extreme hardship.’ ”

Special Indemnity Fund v. Hobbs et al., 196 Okl. 318, 164 P.2d 980, is also persuasive. Here the State Industrial Commission ordered the Special Indemnity Fund to pay claimant’s attorney’s fee in a lump sum. This Court in modifying that order said at page 320 of the opinion, 164 P.2d at page 982:

“The petitioner next contends that the Commissioner erred in commuting to a lump sum the award for the purpose of paying the claimant’s attorney’s fees. The petitioner first takes the position that attorney’s fees cannot be paid out of the award against the Special Indemnity Fund, and second, if it can be paid out of such fund, then it can only be paid in periodical payments, because Title 85 O.S.Supp.1943 § 172 provides that the award against the Special Indemnity Fund shall be paid ‘in periodical installments and without commutation thereof to a lump sum.’ * * * We hold that attorney’s fees may be paid out of compensation payable to a claimant from the Special Indemnity Fund. However, the language of Title 85 OS.Supp.1943 § 172' is mandatory in directing the payments to be made in periodical installments and prevents the coimnutation of the award to a lump sum. The provisions of the order requiring the attorney’s fees to be paid from the latter part of the award is approved, but the order should provide that such payment be made in periodical installments as provided by the statute for the payment of compensation to the claimant. The order is modified to that extent.” (Emphasis added) See also in this connection Special Indemnity Fund v. Bryant et al., supra.

Claimant cites Special Indemnity Fund v. Farmer et al., 195 Okl. 262, 156 P.2d 815 and Special Indemnity Fund v. Davidson et al., 196 Okl. 118, 162 P.2d 1016, and contends that 85 O.S.1961 § 172 was a “supplement” rather than an “amendment” to the Workmen’s Compensation Law and that it was not the Legislature’s intention to thereby deprive the State Industrial Court of its power to accelerate an award as provided in 85 O.S.1961 § 41. The cited cases and contention are not in point for the above cited reasons. However, our holding does not leave an employee without means by which to enforce continuing compliance with an order such as the one involved in this proceeding. See Pruitt v. Mid-Continent Pipe Line Company et al., supra.

In the Fund’s final proposition, it argues there is no authority for the Industrial Court’s order that it pay 6% interest. This argument is without merit. 85 O.S.1961 § 42 provides if compensation or an installment thereof due under the terms of an award be not made within ten days after the same is due, the “ * * * compensation awarded and all payments thereof directed to be made by order of the Commission shall bear interest at the rate of 6% per annum from the date ordered paid by the Commission until the date of satisfaction thereof.”

Our opinion in Special Indemnity Fund v. Horne et al., Okl., 276 P.2d 240, is directly in point on the issue. There the proceeding was brought by the Special Indemnity Fund and presented the single issue that the State Industrial Commission erred in allowing interest from the date of the award. In the body of that decision, p. 242, we said:

“The statute provides that an award shall be made against Special Indemnity Fund and since by statutory provision awards draw interest an award for the collection of interest against Special Indemnity Fund is not only within the province of the Workmen’s Compensation Law but does not conflict with any provision creating the Special Indemnity Fund.” (Emphasis added)

In Boettcher Oil and Gas Company v. Lamb et al., Okl., 276 P.2d 243, 244, we held:

“We are of the opinion and hold that section 42, supra, provides for interest from the date of the award when it becomes final without appeal or is affirmed on appeal. * * * ”

Therefore, since the Fund failed to pay the total accrued installments due claimant within ten days after October 28, 1963, (the date the award was affirmed on appeal) and no appeal was taken from the court en banc’s order, claimant was entitled to 6% interest per annum on those accrued unpaid installments from October 28, 1963, until satisfied. Adams v. City of Anadarko et al., supra, Nelson v. Central State Roofing Company et al., supra; Edmonds v. Skelly Oil Co. et al., supra; Higgs v. State Industrial Commission et al., supra.

The order entered by the State Industrial Court is vacated and the cause is remanded with directions to proceed in accordance with the views herein expressed.

JACKSON, V. C. J., and DAVISON, BLACKBIRD and BERRY, JJ. concur. WILLIAMS and IRWIN, JJ., dissent.