Monday, September 27, 2010

Tolling Limitation for Reopening Claims

Tolling the limitation period of 85 O.S. §43(C) by timely reopening a claim for one adjudicated body part does not toll the limitations for other adjudicated body parts. Shapiro v. City Beverage Co. LLC, 2010 OK CIV APP 88, __ P.3d __.

Mark Shapiro sustained a work-related injury to his neck and low back. At all relevant times the trial judge was Hon. Gene Prigmore.

  • On April 22, 2002, Shapiro received an award of permanent partial disability to both body parts.
  • On August 7, 2003,  employer was ordered to provide him with vocational rehabilitation "as outlined in Option A as identified in the report of LDH CONSULTANTS."
  • On July 27, 2006, Shapiro filed a Form 9 to reopen the low back injury claim.
  • On February 20, 2007, an order was entered finding change of condition for the worse to the low back, and the order was later affirmed on appeal to the court en banc.
  • On May 27, 2009, Shapiro filed to reopen his neck injury. 
  • On August 25, 2009, the trial judge denied Shapiro's motion to reopen his neck injury claim.
The applicable limitation period under §43(C) was "three (3) years from the date of the last order."

Judge Prigmore's order reopening on the neck was proper because the reopen motion filed on July 27, 2006 was filed within three years of the last order on August 7, 2003 awarding vocational rehabilitation. Arrow Tube & Gauge v. Mead holds that a last order is one that "substantially affects the range of . . . vocational benefits . . ."

With respect to the neck injury, Shapiro contended that the February 20, 2007 order reopening the low back injury was the last order. The Court of Civil Appeals agreed with Judge Prigmore and affirmed his denial of the motion to reopen for treatment of his low back. The vocational order on August 7, 2003 was the last order because it was the last one to deal with Shapiro's neck injury. The order on February 20, 2007 only dealt with his low back. According to the COCA, to hold otherwise would allow a claimant with multiple adjudicated body parts to keep his benefits open indefinitely by serially reopening his claim every three years, one body part at a time. It found that this was not the intent of the legislature.

For a more extensive discussion on the §43(C) limitation, visit my website.

Commentary: When I was on the bench, I was somewhat amazed that insurance carriers often take hard stands on vocational rehabilitation benefits. This case offers a teaching moment. LDH Consultants wrote a report recommending a program for rehabilitating Shapiro. Although we don't know all of the circumstances, my experience says that orders approving a vocational rehabilitation option like the one filed August 7, 2003, are entered because the insurance carrier has forced the claimant's hand by delaying or obstructing the inevitable approval of rehab that meets the statutory restrictions.

The folly of this approach is evident from this case. If the carrier had approved "Option A," no order would have been entered by Judge Prigmore on August 27, 2003; and the last order would have been the one entered on April 22, 2002. The limitations period would have expired on the low back, not just on the neck. As grandma Lois used to say, "penny wise and pound foolish."

No comments:

Post a Comment