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In re Death of Salazar5/22/1998
Opinion Services
Salazar v. BONRAY DRILLING
___ P.2d ___
Decided: April 17, 1998
Court of Appeals of Oklahoma, Division No. 1
Petitioner Jim Grennan (Grennan) seeks review of an order of a three-Judge panel of the Workers' Compensation Court vacating the trial court's order and directing Grennan to repay to Respondents Bonray Drilling and Liberty Mutual Insurance Co. (Employer) sums received by Grennan as attorney's fees under a previous order of the Workers' Compensation Court later reversed on appeal. Herein, Grennan asserts the Workers' Compensation Court lacked jurisdiction to order restitution of the attorney's fees already paid. We agree with Grennan and vacate the order of the three-Judge panel to that effect.
In August 1992, Decedent died as a result of accidental injuries arising out of and in the course of his employment with Employer. Claimant Donita Stewart Salazar thereafter commenced the instant action to recover death benefits. In July 1993, the Workers' Compensation trial court adjudicated Donita Stewart Salazar to be the common-law surviving spouse of Decedent, and awarded her, Decedent's two dependent children and Decedent's dependent mother benefits. Pursuant to that order, Employer paid Donita Stewart Salazar almost $17,000.00, out of which Grennan retained about $3,500.00 as attorney's fees.
Claimant Carol Ann Cook, as mother and next friend of Decedent's two dependent children, appealed the trial court's decision to a three-Judge panel. The three-Judge panel, by split vote, vacated the trial court's order, holding Donita Stewart Salazar had failed to prove she was Decedent's surviving common-law wife at the time of Decedent's death, and upon further review, this Court affirmed the order of the three-Judge panel. In the Matter of the Death of Michael A. Salazar, Deceased, Salazar v. Cook, et al., Case No. 82,745 (Okla. Civ. App. Div. 1, Sept. 20, 1994) (Unpub. op. by Hansen, P.J., Adams, J. Concurring, and Jones, J., concurring by reason of stare decisis).
After mandate spread below, Employer filed a motion to certify the appellate judgment, which the trial court granted, and Employer obtained a default judgment in the district court of Oklahoma County against Donita Stewart Salazar for restitution of the sums previously paid to her by Employer under the prior Workers' Compensation Court order later reversed on appeal. Employer then filed in the Workers' Compensation Court an application for the reimbursement of attorney's fees retained by Grennan from the benefits previously paid to Donita Stewart Salazar. Grennan moved to dismiss, arguing the Workers' Compensation Court lacked jurisdiction to direct reimbursement of the attorney's fees previously paid from Donita Stewart Salazar's award. The trial court agreed with Grennan, but a three-Judge panel reversed, directing Grennan to reimburse Employer the amount of the attorney's fee retained. Grennan now seeks review of that decision before this Court.
In the main, Grennan again argues the Workers' Compensation Court lacks jurisdiction to direct reimbursement of the attorney's fee paid. Employer argues that " hen a cause is reversed and remanded by [an appellate] Court and the mandate is received and entered of record by the trial court, the trial court is vested with jurisdiction to make any order or enter any judgment in further progress of the cause not inconsistent with the decision of the [appellate] Court," to include in this case, an adjudication of Employer's right to reimbursement of the attorney's fee retained by Grennan from Donita Stewart Salazar's benefits paid by Employer. See, Berland's, Inc. of Tulsa
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