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Whalen v. Special Indemnity Fund9/18/1998
Decided: August 14, 1998
Court of Appeals of Oklahoma, Division No. 1
THOMAS WHALEN, PETITIONER, v. SPECIAL INDEMNITY FUND and the WORKERS' COMPENSATION COURT,
RESPONDENTS. PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT HONORABLE JIM D. FILOSA, JUDGE
SUSTAINED
Petitioner Thomas Whalen (Whalen) seeks review of the trial court's order "modifying" a prior order of the Workers' Compensation Court awarding Whalen attorney's fees. In this proceeding, Whalen asserts the trial court erred in modifying the prior unappealed order of the Workers' Compensation Court, the Special Indemnity Fund (Fund) bound to pay Whalen his attorney's fees according thereto, i.e., by payment to Whalen of every fifth check of Whalen's client until Whalen's client reaches sixty-five years of age. We find no error as alleged, however, and hold the order of the Workers' Compensation Court should be sustained.
By order dated December 5, 1986 and filed on December 12, 1986, the Workers' Compensation Court determined Whalen's client, Johnny C. Sweet (Claimant), a previously impaired person, permanently totally disabled (PTD) as a result of combination of disabilities previously adJudged and disability attributable to Claimant's latest injury, and awarded Claimant benefits therefor against Fund. 85 O.S. §§171, 172. The order further provided: - 4 - That beginning with the date of filing of this order, [Fund] is ordered to pay compensation to claimant at the rate of $147.00 per week until claimant reaches the age of 65 (less tax and attorney fee). - 5 - That every 5th weekly payment of $147.00 made under this Order [shall] be paid to claimant's attorney Thomas Whalen, to be deducted therefrom as a reasonable attorney fee herein; ... .
Fund thereafter paid Whalen every fifth weekly payment of Claimant until July 1996 when Fund began making the fifth payment to Claimant, taking the position that Whalen could not recover attorney's fees "based upon ... more than a five-hundred-week award" under 85 O.S. 1981 §41(A), the law in effect at the time Fund's liability attached, and that Fund had paid the maximum allowed. Whalen objected and moved to "certify" the order, taking the position that the December 1986 order directed payment to him of every fifth check of Claimant until Claimant reached 65 years of age, that the limits imposed by §41(A) did not apply to Fund, and that even if §41 applied as to render the December 1986 order arguably erroneous, that final, unappealed order nevertheless bound Fund to pay according to the terms thereof. After argument and submission of briefs, the trial court held by miscellaneous order: - 1. - THAT the applicable provisions of 85 O.S. 1981 §41(A), and subsequent amendments thereinafter down the present, ha always limited attorney fees to not more than a 500 week award. - 2. - THAT there is no statutory or case law authority to support the proposition that the maximum attorney fee of 500 weeks, as outlined in 85 O.S. §41(A), is not applicable to awards against the Special Indemnity Fund. - 3. - THAT the Order of the Workers' Compensation Court entered December 1 , 1986, although final, cannot award attorney fees beyond the maximum attorney fees allowed by law. - 4. - THAT the claimant attorney's request for attorney fees beyond 500 weeks is hereby DENIED. - 5. - THAT every 5th weekly payment of $147.00 made under the aforementioned order to the claimant's attorney beyond 500 weeks, shall now be paid to the claimant until the claimant reaches the age of 65 (less tax.) Whalen now seeks review in this Court.
Whalen firsts asserts the provisions of §41 governing payment of attorney's fees ge
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