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MCCLISH v. WOODARTS INC.2014 OK CIV APP 41324 P.3d 409Case Number: 111287Decided: 10/25/2013Mandate Issued: 04/29/2014DIVISION IITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IICite as: 2014 OK CIV APP 41, 324 P.3d 409
JONELL MCCLISH, Petitioner,v.WOODARTS INC. &/or TTC 
ILLINOIS, INC., CNA INSURANCE GROUP &/or CONTINENTAL CASUALTY CO., and THE 
WORKERS' COMPENSATION COURT, Respondents.

PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OFTHE 
WORKERS' COMPENSATION COURT
HONORABLE ERIC W. QUANDT, TRIAL JUDGE

VACATED AND REMANDED FOR FURTHER 
PROCEEDINGS

Pamla K. Cornett, Robert A. Flynn, FLYNN LAW FIRM PLLC, Tulsa, Oklahoma, for 
PetitionerJeffrey D. Nachimson, PIERCE COUCH HENRICKSON BAYSINGER & 
GREEN, L.L.P., Oklahoma City, Oklahoma, for Respondents Woodarts Inc. &/or 
TTC Illinois, Inc., CNA Insurance Group &/or Continental Casualty 
Co.


DEBORAH B. BARNES, VICE-CHIEF JUDGE:
¶1 Petitioner Jonell McClish (Claimant) seeks review of an Order of a 
three-judge panel of the Workers' Compensation Court vacating the decision of 
the trial court. The trial court denied the motion of Woodarts Inc. &/or TTC 
Illinois, Inc. and CNA Insurance Group &/or Continental Casualty Co. 
(collectively, Employer) to dismiss Claimant's compensation claim for failure to 
timely prosecute and found, instead, that Claimant made a good faith effort to 
receive a hearing in the time prescribed by 85 O.S. Supp. 1997 § 43(B). In lieu 
of the trial court's order, the three-judge panel sustained Employer's motion to 
dismiss for failure to timely prosecute. After review of the record and 
applicable law, we vacate and remand for further proceedings.
BACKGROUND
¶2 The alleged injury in this case occurred more than twelve years ago. In 
September 2001, Claimant filed a Form 3 alleging she sustained compensable 
injuries to various body parts in July 2001 as a result of "moving cabinet 
repeat[ed]ly from table to floor" while employed as a carpenter by "Woodarts 
Inc./TTC of Ill., Inc." In its Form 10, Employer denied Claimant had a 
compensation insurance policy with CNA Insurance Group &/or Continental 
Casualty Co.
¶3 In July 2002, Claimant filed a Form 9 motion to set payment for medical 
services for trial, and in October 2002, Claimant filed a Form 9 motion to set 
the issue of insurance coverage for trial. In February 2003, Claimant again 
filed a Form 9 motion to set payment for medical services for trial.
¶4 In January 2004, Claimant filed a Form 13 request for prehearing 
conference and a Form 9 motion to set for trial, specifically listing the 
following in both forms: "Set for Trial; TTD; Medical; authorization for another 
surgery."1
¶5 In June 2004, Claimant filed an amended Form 3 alleging that in addition 
to the injury sustained in July 2001, she subsequently injured her neck, 
shoulders, and back in October 2001 while "at hospital after back surgery due to 
nurse letting her fall."2
¶6 In September 2004, Claimant filed a Form 9 motion to set for trial and 
listed a medical report to be introduced as an exhibit. She also filed a Form 9 
in October 2004 setting forth the issue of permanent total disability for 
trial.
¶7 In January 2005, Claimant filed a motion requesting that Employer produce 
a copy of the insurance policy that covered him during his employment, and in an 
order filed in March 2005, the trial court directed "Continental Casualty 
Company (CNA) . . . to produce for inspection and copying by [Claimant] a copy 
of the insurance policy involved herein, if on[e] exists."3 A trial date was set for July 
11, 2005; however, in July 2005 Claimant filed a motion to continue "due to no 
answer from the Insurance Commissioners."4 Motions regarding the issue of insurance coverage 
continued to be filed and, in March 2007, Claimant filed a Form 9 motion to set 
for trial and named an insurance expert to be called at trial as a witness. In 
July 2008, Claimant again filed a Form 9 motion to set for trial.
¶8 In an "Order of Referral to Mediation" filed in November 2008, the trial 
court appointed a mediator at the request of the parties, with the date of the 
mediation to be established by agreement of the parties. However, mediation 
failed and, in June 2009, Claimant filed a Form 9 motion to set for trial. 
Nevertheless, in March 2010, Claimant filed a request for a second attempt at 
mediation.
¶9 In May 2010, Employer filed a Form 10 adding the affirmative defense of 
"Statute of Limitations - Section 43B," and, in October 2010, Employer filed a 
motion to dismiss.
¶10 In a second "Order of Referral to Mediation" filed in January 2011, the 
trial court appointed a mediator at the request of the parties, with the date of 
the mediation to be established by agreement of the parties. Mediation again 
failed, and, in May 2011, Claimant filed a Form 9 motion to set for trial on the 
issues of permanent partial disability, permanent total disability, and 
continuing medical maintenance. Claimant again filed a Form 9 motion in July 
2011.
¶11 In the trial court's order filed on August 19, 2011, it found that 
"[Employer's] motion to dismiss for failure to timely prosecute pursuant to 85 O.S. § 43(B) is overruled," and 
found, instead, that Claimant "made a good faith effort to receive a hearing in 
the time prescribed by § 43B." Employer appealed to a three-judge panel, 
asserting in its Request for Review that, inter alia, "[t]here were at least two 
(2) periods of three (3) years each in which [C]laimant did not seek a good 
faith request for a hearing and final determination."5 Employer asserted the first period was 
from September 2001 to October 2004, and the second period was from December 
2004 to May 2011.
¶12 In its Order filed on November 7, 2012, the three-judge panel, with one 
judge dissenting, found the trial court's order to be "contrary to law AND 
against the clear weight of the evidence," and vacated the trial court's order. 
In lieu thereof, the three-judge panel found "[Employer's] motion to dismiss for 
failure to timely prosecute pursuant to 85 O.S. § 43(B) is SUSTAINED." From 
this Order, Claimant appeals.
STANDARD OF REVIEW
¶13 This appeal presents issues of law only. We review issues of law de 
novo, without deference to the lower court's legal rulings. Hillcrest 
Med. Ctr. v. Powell, 2013 OK 
1, ¶ 6, 295 P.3d 13, 15.
ANALYSIS
I. Jurisdiction of the Three-Judge Panel
¶14 Claimant argues the trial court's order was interlocutory because it 
neither granted nor denied an award of benefits and, therefore, the three-judge 
panel lacked jurisdiction to review the trial court's order. However, 85 O.S. Supp. 1997 § 3.6(A), the law 
in effect at the time of the alleged injury,6 provides, in pertinent part, that 
after a trial court makes an order, decision or award,


[e]ither party feeling himself aggrieved by such order, decision or award 
    shall, within ten (10) days, have the right to take an appeal from 
    the order, decision or award of the Judge to the Workers' Compensation Court 
    sitting en banc. Such appeal shall be allowed as a matter of right to either 
    party upon filing with the Administrator a notice of such appeal. . . . 
    The Court en banc may reverse or modify the decision only if it determines 
    that such decision was against the clear weight of the evidence or contrary 
    to law. Upon completion of the appeal, the members of the Court sitting en 
    banc shall issue such order, decision or award as is proper, just and 
    equitable. . . . Appeals shall be allowed on a question of law or a 
    question of fact, or a mixed question of law and fact, and shall be 
    determined on the record made before the Judge.
(Emphasis added.)
¶15 Accordingly, three-judge panels of the Workers' Compensation Court are 
not limited to review of trial court orders granting or denying compensation 
awards. This is consistent with "the institutional design" of the Workers' 
Compensation Court, which "was intended not to afford two layers of appellate 
process . . . but rather to implement a two-tier decisional system within 
the trial tribunal with but a single appellate remedy in [the Supreme Court]." 
Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 8, 684 P.2d 548, 551 (footnote omitted). 
Pursuant to this design, "[w]hen the order of the trial court is vacated by the 
three-judge panel," as occurred in this case, "the trial court's order stands 
replaced with that of the review panel, so that there is never more than one 
final decision to be reviewed in the appellate courts." McGuire v. N. Glantz 
& Son, LLC, 2010 OK 74, 
¶ 7, 242 P.3d 530, 532 (citing 
Parks, ¶ 11, 684 P.2d at 551). See also Hermetics Switch, Inc. v. 
Sales, 1982 OK 12, ¶ 3, 640 P.2d 963, 965 ("[A] case appealed 
for consideration en banc is not a fit subject for corrective relief in this 
court until a reviewable order has been rendered."). Consequently, we 
reject Claimant's argument that the three-judge panel lacked jurisdiction to 
review the trial court's order denying Employer's motion to dismiss.
II. Request for a Hearing and Final Determination of the 
Claim
¶16 "Ordinarily, claims for workers' compensation awards must either be 
granted or denied"; however, "[t]hey stand subject to involuntary dismissal . . 
. for want of an employee's timely-pressed request for a claim's hearing." 
Amos v. Spiro Pub. Sch., 2004 
OK 4, ¶ 7, 85 P.3d 813, 816 
(footnote omitted). The applicable rule in effect at the time of Claimant's 
alleged injury requiring a timely request of a hearing and final determination 
is as follows:


When a claim for compensation has been filed with the Administrator as 
    herein provided, unless the claimant shall in good faith request a hearing 
    and final determination thereon within three (3) years from the date of 
    filing thereof or within three (3) years from the date of last payment of 
    compensation or wages in lieu thereof, same shall be barred as the basis of 
    any claim for compensation under the Workers' Compensation Act and shall be 
    dismissed by the Court for want of prosecution, which action shall operate 
    as a final adjudication of the right to claim compensation 
  thereunder.
Title 85 O.S. Supp. 1997 § 
43(B).
¶17 The purpose of § 43(B) is to prevent a party from "sle[eping] on his 
rights" after a claim has been filed and to ensure that only those claimants 
prevail who, "in good faith, actively pursue[] resolution" of their claims. 
Key Energy Servs., Inc. v. Minyard, 2007 OK 99, ¶ 18, 173 P.3d 1198, 1203. "The time 
restriction in § 43(B) fixes the time period for requesting a hearing on a 
timely-filed claim. It is a time restriction designed to protect both the 
employer and the claimant." Multiple Injury Trust Fund v. Wade, 2008 OK 15, ¶ 24, 180 P.3d 1205, 1212 (citations 
omitted). If a claim is properly dismissed pursuant to § 43(B), "the claimant's 
loss is final and irretrievable. No other remedy will lie for the recapture of a 
claim's residue extinguished by the operation of § 43(B)." Cole v. Silverado 
Foods, Inc., 2003 OK 81, ¶ 
12, 78 P.3d 542, 548 (emphasis 
omitted).
¶18 Regarding the precise operation of § 43, the Oklahoma Supreme Court has 
stated:


A claim will be barred by § 43 when an injured worker does not, within 
    the limitations period, make a good faith request for a hearing and final 
    determination of his or her claim. We have said that the statutory bar did 
    not apply if, within the limitations period, the claimant filed a written 
    motion requesting a hearing and final determination of the 
  claim.
Ellington v. Horwitz Enters., 2003 OK 37, ¶ 9, 68 P.3d 983, 985 (citations and 
internal quotation marks omitted). Accordingly,


to satisfy § 43 the worker's filing must have content that is designed to 
    request a hearing and final determination of the claim. We have stated[, for 
    example,] that a Form 3 does not satisfy § 43, because that Form was not 
    designed to accomplish a request for a hearing and final 
  determination.
Ellington, ¶ 10, 68 P.3d at 985 (emphasis omitted). See also
Tyson Foods, Inc., Own Risk No. 12220 v. Watson, 2011 OK CIV APP 109, ¶ 9, 263 P.3d 332, 335 ("Form 13 
requests for pre-hearing settlement conferences do not constitute requests for a 
final determination.") (citation omitted).
¶19 The Supreme Court has further stated that "the bar of the statute is 
demonstrated when any [three]-year period passes after filing a claim in 
which there has not been a good-faith effort to receive a hearing and final 
determination." Ellington, ¶ 14, 68 P.3d at 986 (quoting Matter of 
Death of Hendricks, 1991 OK 
52, ¶ 12, 812 P.2d 1361, 
1364) (original emphasis omitted, emphasis added). The Ellington Court 
explained, "were we to hold that a claim could be withdrawn from the three-year 
limitation period forever by the filing of a request for a hearing . . . shortly 
after the claim was filed, the legislative purpose behind § 43(B) would be 
completely thwarted." Ellington, ¶ 14, 68 P.3d at 986. See also
Tyson Foods, ¶ 7, 263 P.3d at 334 ("[R]epeated filings of forms not 
intended to request a final hearing and determination are not sufficient . . . 
.").
¶20 Moreover, the Oklahoma Supreme Court has stated that § 43(B) "is not a 
statute of repose to be strictly construed despite a claimant's efforts," 
Wade, ¶ 24, 180 P.3d at 1212 (citation omitted), and a claimant can 
"show[] acts which operate to toll or arrest the statutory bar" other than the 
filing of a Form 9 request for a hearing and final determination of his/her 
claim, Key Energy, ¶ 11, 173 P.3d at 1201. For example, in Key 
Energy, the Supreme Court stated that the claimant attempted to exercise his 
rights in good faith, and "actively pursued resolution but was thwarted from 
vindicating his rights by: 1) the death of the first independent medical 
examiner and; 2) the uncontested order by the court, made before the statutory 
period had run, that the claimant receive medical treatment from an independent 
medical examiner paid for by the employer." Id. ¶ 18, 173 P.3d at 1203. 
Although the claimant in Key Energy did not file a request for a hearing 
and final determination of his claim within a three-year period, the Court 
concluded that the § 43(B) time restriction was tolled by the trial court's 
order appointing an independent medical examiner within the three-year period 
because the claimant could not file a Form 9 requesting final determination 
without attaching a medical report, and he could not attach a medical report 
without a medical examination. Id. ¶ 14, 173 P.3d at 1202.
¶21 As stated by this Court, although the claimant in Key Energy 
"requested the appointment of an independent medical examiner, the trial 
court failed for nearly 8 months, until about a month before the [expiration of 
the three-year time restriction], to appoint a replacement for the first 
agreed-upon doctor, who died before he could examine the claimant and submit a 
report." Tyson Foods, Inc., ¶ 12, 263 P.3d at 335 (citation omitted). In 
addition, the three-year time restriction can be tolled where the employer's 
actions demonstrate a "conscious recognition of liability," Key Energy, ¶ 
12, 173 P.3d at 1201, or where "some activity on the part of the [employer] 
forestall[s] prosecution of the claim against the [employer]," id. 
(footnote omitted). "The trial judge has the authority to determine whether 
circumstances operate to toll the time bar, and we review its determination 
de novo." Id. (footnotes omitted).
¶22 Claimant has filed Form 9 "Motions to Set for Trial" throughout these 
proceedings and at least every three years. She filed Form 9 Motions in July 
2002, October 2002, February 2003, January 2004, September 2004, October 2004, 
March 2007, July 2008, June 2009, and July 2011. In August 2011, the trial court 
denied Employer's request to dismiss.
¶23 Furthermore, the prosecution of this claim has been forestalled by 
circumstances outside Claimant's control. Specifically, issues related to the 
identification of Employer's insurer at the time of Claimant's injury have 
caused significant delay as is evidenced by, among other things, Employer's 
denial in its Form 10 that it had a compensation insurance policy with CNA 
Insurance Group &/or Continental Casualty Co.; the March 2005 order of the 
trial court directing "Continental Casualty Company (CNA) . . . to produce for 
inspection and copying by [Claimant] a copy of the insurance policy involved 
herein, if on[e] exists"; and Claimant's July 2005 motion to continue "due to no 
answer from the Insurance Commissioners." Among additional filings, Claimant's 
March 2007 Form 9 listing an insurance expert to be called as a witness at trial 
reveals these issues remained unresolved up to the trial court's August 2011 
order denying the motion to dismiss.
¶24 As stated above, § 43(B) is not "to be strictly construed despite a 
claimant's efforts," and a claimant can show acts which operate to toll the 
three-year time restriction other than the filing of a Form 9 request for a 
hearing and final determination of his/her claim, such as circumstances outside 
the claimant's control that forestall prosecution of the claim. Here, Claimant 
consistently filed Form 9 motions throughout these proceedings and 
circumstances outside Claimant's control have forestalled prosecution of the 
claim. We conclude no three-year period exists following the filing of 
Claimant's original Form 3 during which she did not "in good faith request a 
hearing and final determination . . . ." § 43(B). Therefore, we vacate the Order 
granting Employer's motion to dismiss Claimant's compensation claim for failure 
to timely prosecute pursuant § 43(B).
CONCLUSION
¶25 After our review of the record on appeal and the applicable law, we 
vacate the Order of the three-judge panel granting Employer's motion to dismiss 
Claimant's compensation claim for failure to timely prosecute pursuant to 85 O.S. Supp. 1997 § 43(B), and 
remand for further proceedings.

¶26 VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

FISCHER, P.J., and WISEMAN, J., concur.

FOOTNOTES

1 R. at 
58, 59.

2 R. at 
62.

3 R. at 
70.

4 R. at 
72.

5 R. at 
111 (internal quotation marks omitted).

6 The 
date of injury has long been the point in time in workers' compensation cases 
when rights of the parties become established. Williams Cos., Inc. v. 
Dunkelgod, 2012 OK 96, ¶ 14, 
295 P.3d 1107, 
1111-12.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2011 OK CIV APP 109, 263 P.3d 332, TYSON FOODS, INC. v. WATSONDiscussedOklahoma Supreme Court Cases CiteNameLevel 1991 OK 52, 812 P.2d 1361, 62 OBJ        1865, Death of Hendricks, Matter ofDiscussed 2003 OK 37, 68 P.3d 983, ELLINGTON v. HORWITZ ENTERPRISESDiscussed 2003 OK 81, 78 P.3d 542, COLE v. SILVERADO FOODS, INC.Discussed 2004 OK 4, 85 P.3d 813, AMOS v. SPIRO PUBLIC SCHOOLSDiscussed 2007 OK 99, 173 P.3d 1198, KEY ENERGY SERVICES, INC. v. MINYARDDiscussed 2008 OK 15, 180 P.3d 1205, MULTIPLE INJURY TRUST FUND v. WADEDiscussed 2010 OK 74, 242 P.3d 530, MCGUIRE v. N. GLANTZ & SON, LLCDiscussed 2012 OK 96, 295 P.3d 1107, WILLIAMS COMPANIES, INC. v. DUNKELGODDiscussed 2013 OK 1, 295 P.3d 13, HILLCREST MEDICAL CENTER v. POWELLDiscussed 1982 OK 12, 640 P.2d 963, Hermetics Switch, Inc. v. SalesDiscussed 1984 OK 53, 684 P.2d 548, Parks v. Norman Mun. Hosp.DiscussedTitle 85. Workers' Compensation CiteNameLevel 85 O.S. 3.6, Repealed by Laws 2011, SB 878, c. 318, § 87Cited 85 O.S. 43, Repealed by Laws 2011, SB 878, c. 318, § 87Discussed at Length










