MEEKS v. GUARANTEE INSURANCE COMPANY

’Colbert, J.

¶ 1 This appeal was retained to reiterate the proper application of this Court’s decision in Summers v. Zurich Am. Ins. Co., 2009 OK 33, 213 P.3d 565, to monetary awards—although paid—not provided as ordered. Today, this Court reemphasizes that an order of the Workers’ Compensation Court (WCC) that clearly identifies previously ordered benefits and finds that insurer failed to demonstrate good cause for its delay in, or noncompliance with, providing court ordered benefits satisfies the certification requirements delineated in Summers. Because the certification requirements were met here, employee may proceed in district court on his bad-faith claim against insurer for insurer’s alleged bad faith refusal to provide temporary total disability benefits as ordered by the WCC.

FACTS AND PROCEDURAL HISTORY

¶ 2 On September 10, 2014, the appellant, Tracy Meeks (Meeks), filed a petition in district court alleging that appellee, Southside Recycling LLC (Employer), through its insurance carrier, Guarantee Insurance Co. (Insurer), had in bad faith engaged in a systematic pattern and practice of refusing to pay court ordered temporary total disability (TTD) benefits on twenty-six separate occasions, without just cause. In support, Meeks relied on various previously entered TTD orders by the WCC. In particular, Meeks proffered a June 26, 2014 WCC Order that stated:

The Court previously determined, and ordered, that claimant was, and is entitled to temporary total disability payments. The Court ordered respondent to pay such benefits and respondent had repeatedly failed to comply with the Court’s orders.

The Court has given respondent the opportunity to provide just cause as to its refusal or failure to comply with the Court’s orders in this matter, and respondent has failed to satisfy its burden in that regard resulting in the court ordering this respondent to pay penalties and interest in its APRIL 15, 2010, AUGUST 18, 2010, SEPTEMBER 30, 2011, JANUARY 4, 2012, JUNE 15, 2012 AND OCTOBER 12, 2012 orders.

Respondent continued to fail to comply with the Court’s order for payment of temporary total disability benefits to claimant and now on this 19th day of JUNE 2014, this cause came for consideration, and after hearing arguments of counsel, the Court FINDS and ORDERS AS FOLLOWS:

THAT respondent has again, without just cause, failed to comply to pay claimant temporary total disability payments since the last order of OCTOBER 12, 2012 on the following specific occasions:

DECEMBER 24, 2012,

DECEMBER 31 2012,

JANUARY 7, 2013, JANUARY 14, 2013, JANUARY 21, 2013,

JANUARY 28, 2013, FEBRUARY 4, 2013,

MARCH 5, 2013, APRIL 2, 2013,

OCTOBER 15, 2013,

OCTOBER 22, 2013, OCTOBER 29, 2013,

NOVEMBER 5, 2013, NOVEMBER 12, 2013, NOVEMBER 19, 2013

NOVEMBER 26, 2013,

DECEMBER 3, 2013,

DECEMBER 10, 2013,

DECEMBER 17, 2013,

DECEMBER 24, 2013

DECEMBER 31, 2013, JANUARY 7, 2014,

JANUARY 14, 2012, JANUARY 21, 2014, JANUARY 28, 2014,

FEBRUARY 4, 2014

for a total of twenty-six (26) separate occasions.

The WCC assessed penalties based on Insurer’s late payment of prior TTD awards. However, the WCC denied certification under section 42(A) “due to respondent’s carrier paying said penalty requested by claimant, prior to the healing today.”

¶ 3 Insurer filed its motion to dismiss in lieu of answer contending that Meeks failed to follow the procedural requirements under the Oklahoma Workers’ Compensation Act, a prerequisite to commencing a bad-faith action against Insurer in district court. Relying on Sizemore, Insurer alleged that a bad-faith action can be premised only upon a carrier’s outright refusal to pay a compensation award. Insurer acknowledged that Meeks sought certification from the WCC pursuant to section 42(A), but that request was denied.

¶ 4 Relying on Summers, the district court sustained Insurer’s motion to dismiss finding that Meeks did not possess a certification or other order complying with section 42(A) and Rule 58. Athough the district court acknowledged that the June 26, 2014 WCC Order made detailed findings of fact about Insurer’s twenty-six separate occasions in failing to comply with the WCC orders absent good cause shown, the district court based its denial on the WCC’s express denial for certification that all prior awards were satisfied prior to the WCC hearing. Meeks appealed.

¶ 5 Once again, this Court is presented with the confusion surrounding certification procedures and requirements pursuant to section 42(A) of the Workers’ Compensation Act and Rule 58 as explained in Summers, 2009 OK 33, 213 P.3d 565, and set forth in Sizemore v. Cont’l Cas. Co., 2006 OK 36, 142 P.3d 47. The confusion, here, was compounded by the fact that Meeks’ bad-faith claim was premised on Insurer’s alleged failure to provide benefits as ordered, not on a claim of unpaid benefits. Thus, this Court retained the appeal to reemphasize that the two alternative categories for certification articulated in Summers, and reaffirmed in Silljer v. Mega Life and Health Ins. Co., 2009 OK 44, 213 P.3d 1156 are: “that a final workers’ compensation award (1) remains unpaid or (2) benefits have not been provided as ordered.” Summers, ¶ 10, 213 P.3d at 568 (emphasis added).

STANDARD OF REVIEW

¶ 6 The essence of this appeal turns upon the propriety of the district court’s jurisdiction—purely a question of law. This Court reviews issues of law de novo without deference to the lower court’s legal rulings. K & H Well Serv., Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223.

ANALYSIS

¶7 At the outset, a district court may only exercise jurisdiction in an employee’s bad-faith action against his or her employer/insurer when that employee has obtained an order of the Workers’ Compensation Court certifying “that a final workers’ compensation award either (1) remains unpaid or (2) benefits have not been provided as ordered” without good cause. Summers, 2009 OK 33, ¶ 10, 213 P.3d at 568 (emphasis added). The certification order is the vehicle that confers jurisdiction on the' district court. Stewart v, Mercy Health Center, Inc., 2014 OK 101, ¶ 3, 341 P.3d 70, 70 (where this Court reemphasized the procedural mandates for conferring jurisdiction on the district court in a bad-faith action for unpaid WCC benefits). As delineated in Summers, the certification procedures differ for awards remaining (1) unpaid and (2) benefits not provided as ordered.

1. The Unpaid, Late Payment, or Outright Refusal to Pay a Monetary Award

¶ 8 The certification procedures for an insurer’s unpaid, late payment of, or outright refusal to pay a final monetary benefit award still owing are two fold: employee must (1) first utilize the mechanism provided in section 42(A)¹ of the Workers’ Compensation Act and (2) have the award certified for enforcement as a judgment of the district court pursuant to Rule 58 ² of the Workers’ Compensation Court rules. Summers, 2009 OK 33, ¶¶ 9-10, 213 P.3d at 568. Section 42(A) prescribes the conditions for assessing penalties and provides the method for entering an unpaid award, whether accumulative or lump sum, on the judgment rolls. Id. ¶ 12. The policy rationale behind section 42(A) is to encourage timely payment of workers’ com7 pensation awards, discourage mere non-compliance, and provide a mechanism for enforcement of the judgment in district court. Sizemore, 2006 OK 36, ¶ 25, 142 P.3d at 53-54. But, an insurer’s bad faith refusal to pay an award is beyond that incentive. Id. Notably, section 42(A) only contemplates a dollar amount still owing on a monetary award. Consequently, where no amount is owing, by its terms, section 42(A) does not apply. See Summers, 2009 OK 33, ¶ 13, 213 P.3d at 569; see also Okla. Stat. tit. 85, § 42(A).

¶ 9 In certifying an award as unpaid pursuant to section 42(A), the employer and its insurer must be given at least ten (10) days notice prior to the trial on certification. Okla. Stat. tit 85, ch. 4, Rule 58 (Supp. 2008). At that time, the employer and the insurer shall be afforded an opportunity to show good cause why the application for an order directing certification to the district court should not be granted. Id. Because the insurer owes a duty to act in good faith and deal fairly towards the injured employee, the insurer bears the burden to demonstrate why benefits were not provided as ordered. See Christian v. Am. Home Assurance Co., 1977 OK 141, ¶¶ 25-26, 577 P.2d 899, 904;³ Goodwin v. Old Republic Ins. Co., 1992 OK 34, 828 P.2d 431;⁴ see also Badillo v. Mid Century Ins. Co., 2005 OK 48, 121 P.3d 1080. Thus, the WCC’s inquiry surrounds an insurer’s conduct and whether that conduct was justified.

¶ 10 If the WCC determines that the insurer demonstrated good cause, no certification order will issue. However, if the insurer fails to demonstrate good cause, the WCC “certification order will issue identifying the benefits which have not been provided as ordered. The certification order will make specific findings [of facts] as to the basis for the court’s determination” that the insurer failed to demonstrate good cause why the award should not be certified. Summers, 2009 OK 33 ¶ 11, 213 P.3d at 568.

¶ 11 This Court reemphasizes that where an employee has complied with section 42(A) and Rule 58, and obtains a WCC order finding that an award of monetary benefits remains unpaid without good cause, the employee may

(1) file a certified copy of the certification order, with the award attached, in the district court as a judgment and proceed to execution pursuant to section 42(A) or (2) the claimant may file a claim in tort for the insurer's bad faith. Sizemore, 2006 OK 36, ¶ 26, 142 P.3d at 54. In the latter option, the amount of unpaid benefits listed in the certification order becomes an element of the claimant’s damages in the bad faith claim.

Summers, 2009 OK 33 ¶ 12, 213 P.3d at 569. It is patently clear that an employee is not required to first pursue execution of that judgment in district court before eommenc-mg a bad-faith action. Id. ¶ 14, 213 P.3d at 569.

approve[d] and adopted the rule that an insurer has an implied duty to deal fairly and act in good faith with its insured and that the violation of this duly gives rise to an action' in tort for which consequential and, in the proper case, punitive, damages may be sought.... Resort to a judicial forum is not per se bad faith or unfair dealing on the part of the insurer regardless of the outcome of tire suit. Rather, tort liability may be imposed only where there is a clear showing that the insurer unreasonably, and in bad faith, withholds payments of the claim of its insured.

2. Benefits not Provided as Ordered

¶ 12 The second category for certification—benefits not provided as ordered—applies to any benefits award, whether nonmonetary or monetary. “Benefits” is defined generally to include monetary and nonmonetary awards. See Parret v. UNICCO Serv. Co., 2005 OK 54, ¶ 20, 127 P.3d 572, 578. It is well settled that an insurer has a statutory duty to promptly provide workers’ compensation benefits. That statutory duty exists, whether monetary or nonmonetary, and includes the provision of benefits pursuant to the terms dictated by the WCC. Failure to do so precipitates the precise economic hardship upon the employee that the employer sought to avoid by purchase of the policy. See Christian, 1977 OK 141, 577 P.2d at 903. In most cases, a failure to comply with court-ordered benefits, whether unpaid, late, or an outright refusal, is inherently subsumed by this second qualifying category for certification.

¶ 13 In Summers, this Court held that Sizemore “encompasses an insurer’s bad faith refusal to provide any benefits which (1) have been ordered in a final order of the Workers’ Compensation Court and (2) have been certified as having not been provided as ordered.” Summers, 2009 OK 33, ¶ 9, 213 P.3d at 568. An insurer’s bad-faith refusal to provide benefits satisfying prongs one and two articulated in Summers will give rise to an independent, common-law-tort action in district court. Id.; see also Martin v. Gray, 2016 OK 114, ¶ 9, 385 P.3d 64, 67 (a bad-faith claim presents an independent tort). Such reckless conduct, absent good cause, creates a reasonable inference that the reason for the insurer’s failure to obey the award involves a refusal to comply. Summers, 14, 213 P.3d at 569. So, just as an outright refusal to pay a monetary award is beyond the purview of section 42(A), a wilful or intentional refusal to provide benefits as ordered is beyond the statutory remedies found in the Workers’ Compensation Act. Id. Resultantly, an insurer’s bad-faith conduct in complying with any benefits awarded to an injured employee lies in tort and will be judged by the same standard applicable to the bad-faith conduct by any other insurer. Sizemore, 2006 OK 36, ¶ 25, 142 P.3d at 54.

¶ 14 An employee seeking certification under the second category for nonmone-tary benefits will bypass section 42(A) as there is no unpaid-benefit amount to certify. See Okla. Stat. tit. 85, § 42(A). Rather, that employee should proceed directly to a Rule 58 hearing after providing at least ten (10) days notice to the employer and the insurance carrier pursuant to Rule 58. At the time of hearing, a certification order will issue if the insurer fails to demonstrate good cause. That order must recite the insurer’s failure to demonstrate good cause, identify the prior authorized benefits, and state that such benefits were not provided as ordered. This rule is applicable whether an employee seeks judicial relief for a nonmonetary award, e.g., medical benefits, or where an employer has failed to comply with, but ultimately satisfies, a WCC award of monetary benefits. See, e.g., Silljer v. Mega Life and Health Ins. Co., 2009 OK 44, 213 P.3d 1156 (where this Court found that the district court record was devoid of a WCC order “which certifies that previously awarded medical or wage benefits have not been provided as ordered, and demonstrates no good cause for Insurer’s failure to do so”).

¶ 15 In the context of an insurer’s bad faith refusal to comply with the terms of a monetary benefits award—although ultimately paid—as alleged here, an employee need only demonstrate compliance with Rule 58 and obtain a WCC order indicating that benefits “(1) have been ordered in a final order of the Workers’ Compensation Court ... (2) have been certified 'as having not been provided as ordered,” and (3) that the insurer failed to demonstrate good cause for its failure to obey the WCC orders. Summers, 2009 OK 33, ¶ 9, 213 P.3d at 568.

¶ 16 From the time that TTD benefits became due in this matter, Insurer had an affirmative duty to ensure that such benefits were timely paid under the terms of the award. After notice and hearing, the WCC expressly found that “respondent has again, without just cause, failed to comply to pay claimant temporary total disability payments since the last order of October 12, 2012 ... for a total of twenty-six (26) separate occasions.” Absent good cause for refusing to pay the benefits pursuant to the terms of the award, Insurer will be subjected to a bad-faith action in district court. The WCC need only make a determination that Insurer failed to comply with prior WCC orders and Insurer failed to demonstrate good cause which is sufficient to satisfy the certification requirements. This Court holds that it did.

¶ 17 The test articulated in Summers does not impose the use of magical words in satisfying the certification requirements. Here, the WCC found and expressly held that Insurer was ordered to pay benefits, repeatedly failed to do so as ordered, and did not provide just cause for its failures. Insurer’s actions place it squarely within the scope of the second category for certification articulated in Summers. Given the breadth and findings of the June 26, 2014 WCC Order, this Court holds the WCC Order is, in fact, a certified order for Insurer’s failure to provide benefits as ordered.

CONCLUSION

¶ 18 Although the June 26, 2014 WCC Order denied employee’s section 42(A) request for certification as employer had paid the penalties prior to the hearing, that order satisfied the second recognized certification category under Summers—benefits not provided as ordered. This Court holds that the June 26, 2014 WCC Order, finding Insurer in violation on twenty-six (26) separate occasions in its duty to comply with previously authorized TTD benefits absent good cause, satisfies the certification prerequisites for commencing a bad-faith action in district court.

¶ 19 Having found that Meeks satisfied the certification requirements of Summers, this Court holds that the district court erred in granting Insurer’s motion to dismiss in lieu of answer. Barring Meeks from pursuing a bad-faith claim against Insurer for Insurer’s crafty gamesmanship clearly violates Summers and the policy rational underlying the Oklahoma Workers’ Compensation Act.

DISTRICT COURT ORDER REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

Combs, C.J., Gurich, V.C. J. (by separate writing), Kauger, Watt, Edmondson, Colbert and Reif, JJ., concur; Winchester, J., dissents (by separate writing); Wyrick, J., not present and not participating.

1 . Under section 42(A),

A. If payment of compensation or an installment payment of compensation due under the terms of an award, except in the case of an appeal of an award or an award from the Multiple Injury Trust Fund, is not made within ten (10) days after the same is due by the employer or insurance carrier liable therefor, the Workers' compensation Court may order a certified copy of the award to be filed in the office of the Court clerk of any county, which award whether accumulative or lump sum shall have the same force and be subject to the same law as judgments of the district Court. Any compensation awarded and all payments thereof directed to be made by order of the Court, except in the case of an appeal of an award or an award of compensation from the Multiple Injuty Trust Fund, shall bear interest at the rate of eighteen percent (18%) per year from the date ordered paid by the Court until the date of satisfaction. On or after November 1, 2001, compensation ordered to be paid from the Multiple Injury Trust Fund shall bear simple interest only at the percentage rate applicable to judgments in civil cases pursuant to Section 727 of Title 12 of the Oklahoma Statutes from the date of the award. Any award from the Multiple Injury Trust Fund prior to November 4, 1994, shall bear interest at the percentage rate applicable to judgments in civil cases pursuant to Section 727 of Title 12 of the Oklahoma Statutes. Upon the filing of the certified copy of the Court's award a writ of execution shall issue and process shall be executed and the cost thereof taxed, as in the case of writs of execution, on judgments of courts of record, as provided by Title 12 of the Oklahoma Statutes; provided, however, the provisions of this section relating to execution and process for the enforcement of awards shall be and are cumulative to other provisions now existing or which may hereafter be adopted relating to liens or enforcement of awards or claims for compensation.

Okla. Stat. tit. 85, § 42 (emphasis added).

2 . Rule 58 of Rules of the Oklahoma Workers’ Compensation Court provides:

An application for an order directing certification to district court of any workers' compensation award may be heard after notice to the respondent and insurance carrier has been given at least ten (10) days before the scheduled trial thereon. At such trial the respondent and insurance carrier shall be afforded an opportunity to show good cause why the application should not be granted.

Okla. Stat. tit 85, ch. 4, Rule 58 (Supp. 2008).

3 . In Christian v. Am. Home Assurance Co., 1977 OK 141 ¶¶ 25-26, 577 P.2d 899, 904-05, the Court

4 , "[I]nsurer's implied-in-law duty of good faith ' and fair dealings extends to all types of insurance companies and insurance policies.... [This] includes workers' compensation and employers’ liability insurance.... The employee, who by statute is made a third-party beneficiary to the workers' compensation insurance, is in the same class as an insured and may expect prompt payment of his/her claim unless the insurer in good faith asserts a basis for contesting it.... ‘Unwarranted delayfc] precipitates the precise economic hardship the insured sought to avoid by purchase of the policy.' ” Goodwin, ¶¶ 10-11, 13, 828 P.2d at 434 (citing Christian, 1977 OK 141, ¶ 21, 577 P.2d at 903). As such, an insurer may be liable for more than the statutorily set recoveries. Id. ¶ 13, 828 P.2d at 434-35.