Lang v. Erlanger Tubular Corp. 206 P.3d 589, 2009 OK 17

*590COLBERT, J.

{ 1 This matter addresses the timeliness of a worker's application to reopen his workers' compensation claim based on a change of condition for the worse under section 48(C) of the Workers' Compensation Act, Okla. Stat. tit. 85, §§ 1 through 211 (2001 & Supp. 2008). This Court determines that the worker's request was time barred.

12 Claimant, Robert Lang, suffered a compensable injury to his knee on June 12, 2001, in his employment with Exlanger Tubular Corp. (Employer). He was adjudicated permanently and partially disabled by an order filed on July 1, 2008. The order provided for continuing medical maintenance. That adjudication was followed on July 8, 20083, by an Order for Vocational Examination.

18 At a time not fully revealed by the record on appeal, Claimant's medical condition worsened. In October, 2006, surgery was performed on the knee to remove loose bodies from the joint and also for traumatic chondromalacia. An infection developed and Claimant underwent additional surgery in November, 2006. Employer's insurance company paid for the surgeries. It was not until May 15, 2007, however, that Claimant filed a Form 9 to reopen his claim based on a change of condition for the worse.

The Workers' Compensation Court denied Claimant's "Motion to Reopen" based on "the statute of limitations." The Court of Civil Appeals sustained the order and this Court granted certiorari review to hold that an application to reopen a claim for change of condition for the worse is controlled by section 43(C) which does not contain the "medical treatment rule" found in section 48(A)2 As a result, Claimant's application to reopen the claim is time barred.

ANALYSIS

T5 This matter seeks a construction of a statute and therefore it presents an issue of law. As such, it is reviewed de novo. See Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

T 6 Section 48 of the Workers' Compensation Act contains two provisions which impact this matter. Section 48(A) provides a two-year limitations period for the filing of a worker's claim for compensation. That period begins with the date of injury or from "the last medical treatment which was authorized by the employer or the insurance carrier or payment of any compensation or remuneration paid in Hen of compensation." Okla. Stat. tit. 85, § 48(A) (Supp.2008). Thus, the Oklahoma Legislature has expressly incorporated what the parties term a "medical treatment rule" into the text of the limitation period for the filing of a claim for compensation.

T7 Section 48 contains a separate time limitation for reopening a claim for compensation based on a change in medical condition for the worse. The current version of seetion 48(C) requires such an application to be filed within three years "from the date of the last order."3 No medical treatment rule is expressed concerning an application to reopen a claim for a change of condition for the worse. Claimant argues, however, that although "no Oklahoma court has applied the 'medical treatment rule to toll the limitations period prescribed by Section 48(C) ... this Court should apply that rule when a[n] em*591ployer voluntarily pays for medical treatment...."

18 "The primary goal of statutory construction is to ascertain and follow the intention of the Legislature. If a statute is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction a statute will be accorded the meaning expressed by the language used." Wylie v. Chesser, 2007 OK 81, ¶ 19, 173 P.3d 64, 71 (quoting TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20). "It is the duty of courts to give effect to legislative acts, not to amend, repeal or circumvent them. A'court is not justified in ignoring the plain words of a statute." Smalygo v. Green, 2008 OK 34, ¶ 11 n. 4, 184 P.3d 554, 559 n. 4 (quoting Allgood v. Allgood, 1981 OK 21, ¶ 19, 626 P.2d 1323, 1327).

19 Beginning in the 1980's, this Court articulated a medical treatment tolling rule to the filing of a workers' compensation claim. Thompson v. Anchor Glass Container Corp., 2003 OK 39, ¶ 10 n. 16, 73 P.3d 836, 838. Later, the Legislature incorporated the rule into the text of the time bar for the initial filing of a compensation claim. This Court has never held that the medical treat: ment rule is applicable across-the-board to all time bars in workers' compensation. It spoke only to the initial filing of a claim.

110 The Legislature eventually drew a distinction between a "claim for compensation," as that term is used in section 48(A), and an "application to reopen a claim" in section 48(C) by enacting two separate provisions. -It treated the provisions very differently when it incorporated the medical treatment rule into the text of section 48(A) but chose not to incorporate that same rule into section 43(C). But the Legislature went further. In section 48(C) it expressed its intent to limit specifically "[the jurisdiction of the [Workers' Compensation] Court to reopen any cause" based on a change of condition to three years from "the date of last order." In doing so, the Legislature could not have more clearly expressed its intent.4

[ 11 The section 43(C) time bar is a statement of legislative intent that is contrary to its acceptance of the judicially created and legislatively adopted medical treatment rule contained in section 48(A). This Court is not at liberty to apply a medical treatment rule to the time bar of section 48(C) and thereby contravene the Legislature's unambiguous limitation on the jurisdiction of the Workers' Compensation Court to reopen a claim.

112 This Court is not free to ignore the Legislature's expressed intent by imposing an adverse judicial "gloss." The statutory time bars contained in the Act are not one entity. They involve different demands for action by the Workers' Compensation Court and implicate different policies. The need to give effect to an employer's acts that indicate its assumption of liability, such as by providing medical treatment, are not compelling as to an application to reopen an adjudicated claim. The Legislature was free to draw a distinction between the time bar for filing an original claim and the time bar for an application to reopen a claim.

113 Because the medical treatment rule applies only to the filing of a workers' compensation claim, the parties' arguments as to whether Claimant met the requirements for such a rule do not impact this Court's determination of the timeliness of his application to. reopen the claim based on a change of condition for the worse pursuant to section 48(C). An issue remains, however, concerning which version of section 48(C) applies to this matter.

114 Section 48(C) was amended effective July 1, 2005, to provide for a uniform three-year limitation period and to make the "date of the last order" the sole operative event that marks the beginning of that period. In earlier versions of section 48(C), the limitation period ran from the date of the change of condition. The application to reopen had to be filed within that same limitation period *592from the date of the last order.5 In addition, the limitation period varied depending on the injury adjudicated. Under the current version, the date of change of condition no longer marks the beginning of the limitation period. However, the date of the change of condition determines which version of section 48(C) applies. "The law governing the reopening of a compensation claim upon a change in condition is that which was in effect at the time the claimant's condition underwent a change, and not the law in effect at the time of the injury or the law in force at the time of the original award." Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 7, 16 P.3d 1120, 1123.

1 15 There are three dates which must be determined by the Workers' Compensation Court in applying section 43(C). First, the date of the change of condition must be determined in order to apply the correct version of section 43(C). Second, "the date of last order" must be established to mark the beginning of the limitation period. "[The last order means one that substantially affects the monetary, medical, or rehabilitative benefits conferrable by the Act. An order directing ... a vocational rehabilitation evaluation is one that ... qualifies as a last order within the meaning of [section] 43(C)." Id. ¶ 22, 16 P.3d at 1127 (emphasis omitted). Third, the date of the application to reopen the claim establishes whether it has been filed beyond the limitation period. The need for meaningful judicial review requires that these dates appear in any order from the Workers' Compensation Court which determines the timeliness of an application to reopen a claim upon a change of condition for the worse pursuant to section 43(C). See Dunkin v. Instaff Personnel, 2007 OK 51, ¶ 18, 164 P.3d 1057, 1062.

116 This matter demonstrates the continued relevance of the date of change of condition and the need for a specific on-the-record finding as to that date. Although no date of change of medical condition appears in the record on appeal, Claimant's Brief-in-Chief states that the current version of seetion 43(C) was in effect at the time of Claimant's change of condition. This is significant because the prior version would have provided 250 weeks from the date of last order in which to apply to reopen the claim and Claimant's request would have been timely.6 Under the current and applicable version, however, Claimant had three years from the July 8, 2008, "last order" in which to timely apply to reopen the claim.7 Claimant's application to reopen was not filed until May 15, 2007, and it was therefore barred by the limitation period of the 2005 version of seetion 43(C). The Workers' Compensation Court did not err in so holding.

CERTIORARI PREVIOUSLY GRANT ED; OPINION OF COURT OF CIVIL APPEALS VACATED; ORDER OF WORKERS' COMPENSATION COURT SUSTAINED.

*593Coneur: EDMONDSON, C.J., TAYLOR V.C.J., HARGRAVE, WATT, WINCHESTER, COLBERT, REIF, JJ.

Dissent: OPALA, KAUGER, JJ.

OPALA, J.,

dissenting

T1 Today's opinion sustains the Workers' Compensation Court's denial of the worker's claim as untimely. Its pronouncement rests on a construction of the provisions of 85 O.S.Supp.2005 48(C).1 The court rejects claimant's reliance upon the employer's act of tolling2 the 3-year time bar, effected by its voluntary payment for claimant's medical care after the limitation period's expiration.

1 2 It is my view that the employer's act of payment here in contest operated to erase the limitation's time bar and to restart the § 48(C) period. I hence recede from the court's pronouncement. I would vacate the trial tribunal's order and remand the cause for further proceedings on claimant's timely-brought reopening application.

I

LITIGATION HISTORY

13 Critical to this public-law 3 controversy are four events-(1) claimant's status adjudication as a permanently partially disabled worker by order filed 1 July 2008, followed by a 8 July 2008 order for his vocational examination; (2) the worsening of claimant's medical condition which resulted in two surgeries-in October and November 2006; (8) the payment by employer's insurer for those surgeries; and (4) claimant's 15 May 2007 application to reopen his claim based on a change of condition for the worse. The applicable statute of limitations, 85 0.8.Supp. 2005 48(C), sets a 3-year time period for filing an application to reopen.4 That period began to run on 8 July 2008 and expired in July of 2006. The Court of Civil Appeals (COCA) sustained the trial tribunal's denial of claimant's reopening application as untimely. Agreeing with COCA that the trial tribunal's disposition is error-free, this court holds today that the employer's voluntary payment for claimant's medical care can neither toll the § 43(C) limitations period nor revive a then-expired claim based on a change of condition.

II

EMPLOYER'S VOLUNTARY PAYMENT FOR CLAIMANT'S MEDICAL CARE OPERATED TO BREATHE NEW LIFE INTO A CLAIM THAT OTHERWISE WOULD HAVE BEEN TIME-BARRED

A.

All Workers' Compensation Time Bars are Remedial in Nature And Can Be Lifted By Tolling To Restart The Expired Limitations Period

14 The law's time limits for bringing an action are either remedial or substantive. The former, called statute-of-limitation time bars, extinguish uninvoked remedies; the latter destroy unexercised or unasserted rights. Right-targeting legislative time bars are often referred to as statutes of repose. A claim barred by passage of time set by a *594substantive-law bar cannot be resurrected. An expired right may not be revived.5

5 No substantive-law time bar is present in any part of this state's compensation law. All time bars of that law are purely remedial6 If the worker's claim (or any of its components) were affected by a time bar of our substantive law, onee the clock had run it could never be set in motion again. Since all compensation-law time bars are merely procedural, each of them can be tolled, even after its full passage, to restart the limitation period that otherwise would result in the extinguishment of the remedy.7

¶6 None of the Workers' Compensation Act's time bars for prosecution of a worker's claim (or any of its components) (a) has ever been held to lie outside the remedial arena of limitations or (b) was ever held to be unaffected by the impact of limitations that are purely remedial. Unless the Legislature expressly declares its time bar to be of a substantive-law nature (non-remedial), it can always be tolled or waived.8

B.

Oklahoma's Interpretation Of Limitations Applicable To The Workers' Compensation Act Governs All Components Of A Compensation Claim Unless The Legislature Expressly Declares Otherwise; Jurisprudential Gloss on Statutory Law Constitutes a Part Of Enacted Law Rather Than An Injected Common-Law Component *

17 Extant jurisprudence announces an across-the-board set of rules holding that the employer's voluntary payment for a claimant's medical care (a) constitutes an employer's conscious recognition of liability and (b) operates to toll or waive the time bar.9 The *595doctrine of tolling the limitations period by employer's conduct does not inject an extra-statutory component into the corpus of compensation law.10 This is so because a court opinion that places a meaning upon statutory language becomes ipso facto and eo instante a part of the statutory law's text and takes effect simultaneously with the statute's effectiveness.11 Absent a contrary expression in the Workers' Compensation Act, the very same rule of construction is always applied to like aspects of compensation law.12

C.

Jurisprudential Gloss On Limitations Cannot Be Withdrawn by Legislative Silence

18 An appellate court cannot, without legislative authority, take separate components of a claim and place them outside the workers' compensation regime. That authority must be expressed by affirmative direction, not by omission or silence. There is here absolutely no basis for deducing from legislative silence in the 2005 version of § 48(C) any intent to make the settled construction of limitations inapplicable to a reopening claim.13 Nothing in that statute's text expressly repeals the long-cast statutory construction of remedial time bars' effect. Employer's voluntary payment for claimant's medical care constitutes conscious recognition of its liability, which operates in law as tolling the legally applicable limitations period (a) by breathing life into a claim that otherwise would have been time-barred and (b) by restarting the running of a new three-year limitation period for reopening a claim on a change of condition. An appellate court would be impermissibly stepping into the role of a legislator if it were allowed to draw meaning from mere statutory omission or silence.

T9 By not expressly disapproving the jurisprudential construction placed by this court on workers' compensation remedial time limits, the Legislature has put its stamp of approval on this court's past case law on remedial time limits. That past construction, now part and parcel of the statutory text, comes hence before us here *596in a state that stands beyond the reach of judicial tinkering.

III

THE COURTS CRITIQUE OF THE ANALYSIS TENDERED BY THIS DISSENT

1 10 The court's stubborn refusal to recognize claimant's entitlement to the benefit of tolling by the employer's conscious acknowledgment of liability exposes the most serious flaw in its reasoning. It attributes to the remedial statutory time bar for reopening proceedings a category that the statute does not and cannot claim for itself-that of a substantive-law condition upon the claimant's reopening right rather than that of a garden-variety limitation. When occupying that position, which is forced upon the court by its rejection of tolling, the court is clearly in error. There is neither statutory nor jurisprudential basis for its view. The reopening time bar applicable here is remedial. Claimant cannot hence be deprived of the benefit of tolling. It is his due because he relies on a purely remedial statutory time limit.

A.

The Equitable Doctrines of Tolling and Laches Have Been-since the Merger of Law and Equity-Part and Parcel of Statutory Law of Limitations; To Govern This Case They Need Not Be Included in the Text of Remedial Statutory Time Bars

1[ 11 Ever since the 19th century merger of law and equity into a single system of judicature,14 laches15 and tolling,16 both doctrines that came from chancery jurisprudence,17 have remained invocable to assess the impact of remedial time bars upon the continued viability of a claim.18 Over time, the doe-trines came to be accepted as binding rules of construction for computing the time that has run against a claim. No specific legislative authority was ever required or deemed needed to allow either laches or tolling to affect any remedial time period. In the absence of a statute that expressly disapproves of their use, the doctrines are universally applicable. This view has been reflected in Oklahoma's jurisprudence since statehood.19 Tolling has also been included as a rule for construction of remedial time bars in the workers' compensation law in the same manner as the doctrine stood adopted generally.20 No express legislative authorization was ever deemed necessary for incorporating the doc*597trine into the compensation law jurisprudence. Today's call for a change is the first ever made.

12 The purpose of statutory construction is to provide judicial elucidation for the legislative text whose meaning appears less than clear or certain because it is capable of more than one interpretation.21 Even when in its statutory construction the court uses tools of common-law derivation to remove from the text the uncertainty tendered for settlement, the judicial product of clarification is never considered as part of the state's common law but rather as her statutory law-part and parcel of the legislative enactment's text whose meaning underwent the court's construction.22

In short, the equitable doctrine of tolling remedial time bars by respondent's conduct does not inject an extrastatutory element into the corpus of compensation law. The tolling doctrine need not be included in the text of every statutory remedial time bar because it has been a part of the law since the merger of law and equity. A court opinion that places a meaning upon statutory language becomes ipso facto and eo instante a part of the statutory text and takes effect simultaneously with the statute's effectiveness. Absent a contrary expression in the body of the Workers' Compensation Act, the very same rule of construction will always be applied to all aspects of compensation law's remedial time limits.

B.

The Court's Transformation Of A Statutory Time Bar From Its Remedial Status Into A Condition Upon The Exercise Of A Right Cannot Be Validly Performed By Drawing Its Needed Authority From Legislative Vacuum

1 14 Tolling23 is an inseparable ingredient of every time bar that affects merely the remedy but not the right.24 It is built into the concept of the Anglo-American law's remedial time limit because limitations are purely procedural in nature rather than of substantive-law character.25 The Legislature is hence not called upon to recodify, reenact and recompile the law of tolling every time it enacts a new remedial time bar. Whenever the Legislature enacts a remedial time bar it includes in it sub silencio the law's attributes of tolling.

115 To remove tolling benefits from a remedial time bar the Legislature must explicitly indicate that its bar is to be construed as a condition upon the exercise of a right rather than as a procedural bar of time. Onee tollable quality is removed from a remedial time bar, as it is done by today's construction, the bar of that statute becomes judicially transformed from one that is remedial to another that stands as a condition upon the exercise of a right.

1 16 The attributes of tolling inhere in the remedial time bars of §§ 48(A) and 48(C), which govern distinct applications of compen*598sation limitations. The court's opinion (a) dichotomizes the tolling of compensation law's limitations into separate rubriecs-one that applies to proceedings upon the initial claim and another which applies to proceedings for the reopening of a claim and (b) imposes a distinction never before in existence, (c) which operates here to repeal § 48(C) as a procedural statute of limitations and to substitute in its place a condition upon the exercise of a right.26

€ 17 Today's transformation of the statutory time bar for reopening from its remedial status into that of a repose statute cannot be rested on legislative vacuum. Sans clear and express statutory language, judicial construction of a statute is powerless to erase from the body of state law the benefit of tolling by authorized medical treatment. Judicial fiat will not obliterate over three quarters of a century of Oklahoma jurisprudence that places its approval on tolling of the reopening time bar by employer-paid medical treatment. The judiciary is simply unable to jump that tall a hoop without solid support from clear and express statutory text.

{18 In short, the transformation accomplished by today's opinion under the verbal cover of construction brings about a change of statutory meaning by a device external to the text of the legislation-a change accomplished utterly without support of language used by the lawmaking authors. There is neither jurisprudential support nor legislative authority for today's ipse dixit.27

C.

The Court's Pronouncement Impermissibly Dichotomizes A Single Class of Workers' Compensation Limitations Into Subclasses And Strips Of Tollable Quality One of the Protected Subclasses In Violation of the Uniformity Mandate in Art. 5 § 46, Okl. Const.

{19 A statute offends the mandated statewide uniformity requirements in Art. 5 § 46, Okl.Const,28 when it targets for disparate treatment less than a whole class embraced within one of that section's prohibited subjects.29 The strictures of § 46 absolutely prohibit the Legislature from regulating limitations by special or local law.30 This court's own jurisprudence, no less than the Legislature's enactments, must faithfully conform to the fundamental law's prohibition against passage of disuniform laws on prohibited subjects.31 Remedial time bars are one of the prohibited subjects.

1 20 The court impermissibly dichotomizes today the compensation law's remedial time limits into subclasses-one for limitation that governs the initial claim (§ 48(A)) and the *599other for time bars that govern reopening proceedings (§ 48(C)). The former subclass is subject to tolling whereas the latter has been stripped of its tollable quality, all without any statutory authority. The court's construction of § 48(C) operates to convert the reopening limitations into a separate and special substantive-law time bar which stands proscribed by the fundamental law's mandate against disuniform laws on prohibited subjects.

{21 In sum, remedial limitation is a subject explicitly protected from invasion by disuniformity created either by the Legislature or by the courts. By depriving compensation claimants of tollability benefits for § 48(C) reopening claims, the court singles out a subclass of compensation claims for a less favorable treatment than that accorded other claims in violation of the State's fundamental law.

IV

SUMMARY

$22 Until the Legislature expressly declares otherwise, all workers' compensation time bars must be regarded as remedial. When a compensation claim stands barred by lapse of time prescribed by a remedial statute, its viability may be restored by an act of tolling that occurs even after the limitation period has expired. But if the expired time bar affects the very right to be vindicated by the claim rather than merely the remedy, after expiration of the time bar the right becomes forever extinguished and no act of tolling will ever resurrect it.32

23 Extant jurisprudence has long recognized that the employer's voluntary payment for a claimant's medical care is a conscious recognition of liability which operates to erase the expiration of the remedial time bar and to restart the limitations period. That jurisprudential gloss on limitations is part and parcel of the workers' compensation law, which stands legislatively unchanged and untouched by the terms of 85 O.S.Supp.2005 48 (C). Legislative intent to withdraw this court's prior construction from some aspects of the workers' compensation law cannot be deduced from mere statutory silence. The claimant's reopening application was timely because the limitation period came to be restarted by the employer's voluntary payment for claimant's medical care after the applicable limitation period had expired.

124 I would vacate the trial tribunal's order and remand the cause for further proceedings on claimant's application to reopen his claim on a changed condition for the worse.