author: COATS, Chief Judge. MANNHEIMER, Judge,

text:
    STATE of Alaska, Appellant, v. Norman R. JUDSON, Appellee.
    No. A-8050.
    Court of Appeals of Alaska.
    April 12, 2002.

      Kim S. Stone, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Thomas G4. Nave, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

After pleading guilty to driving while intoxicated (DWI), Norman R. Judson asked the district court to order him, as a condition of his release, to enroll in residential alcohol treatment in Washington state. The court agreed and at sentencing granted Judson twenty-one days of confinement credit-enough to satisfy the statute's twenty-day mandatory minimum sentence for second offenders-for the time he spent in alcohol treatment.

The state argues that the court erred by awarding Judson Nygren credit for the time he spent in treatment because the court's order mandating treatment was not a true court order, but an accommodation of Judson's desire to avoid jail. The state also argues that Nygren credit cannot be used to satisfy the DWI statute's mandatory minimum sentence because the legislature intended jail time and rehabilitative treatment to be distinct requirements. Lastly, the state argues that the district court violated the bail release statute by ordering treatment without considering whether Judson was a flight risk or a danger to the community. We reject these three claims and affirm Judson's sentence.

Facts and proceedings

On March 6, 2001, Judson was cited for DWI. He was released on his own recognizance. A month later, Judson pleaded guilty to DWI and asked District Court Judge Peter B. Froehlich to modify his conditions of release to require him to enroll in the Sundown M Ranch, an alcohol treatment program in Washington. Judson asked for this order so he would be eligible at sentencing to request Nygren credit for the days he was confined to treatment. The state opposed Judson's request, arguing that accommodating Judson's desire to serve his sentence in aleohol treatment instead of jail, as opposed to ordering treatment as part of his sentence, would violate equal protection, the bail and DWI statutes, and Nygren requirements.

The district court rejected the state's arguments and granted Judson's request. Judge Froehlich conceded that the only changed cireumstance that would warrant modification of Judson's release conditions was his DWI conviction. But Judge Froehlich noted that Judson's conviction was a "significant change." Judge Froehlich also reasoned that Judson would receive longer-lasting benefits from alcohol treatment than time in a jail cell, the community would benefit from Judson's rehabilitation, and the state would save money.

During Judson's sentencing hearing in June, the state reiterated its arguments in opposing Nygren credit for the time Judson had spent in treatment. The state also argued that the Sundown M Ranch was not restrictive enough to meet Nygren requirements. After hearing testimony from a representative of that treatment program, Judge Froehlich concluded that Judson was entitled to twenty-two days of Nygren credit for the time he had spent in treatment (twenty-one days) and in jail (one day). Judge Froehlich then sentenced Judson to 122 days with 100 suspended and placed him on probation for three years. Judson's conditions of probation required him, among other things, to be screened by the Alcohol Safety Action Program (ASAP) and to complete up to forty-five days of inpatient treatment if recommended by that program.

The state appeals the district court's decision to grant Nygren credit, but does not argue on appeal that the Washington facility failed to meet Nygren requirements.

Discussion

Should Judson get Nygren credit for the period he spent in treatment even though he asked the court to order him to participate in treatment?

The erux of the state's argument is that Judson should not receive Nygren credit for the period he spent in alcohol treatment because the court's order was "nothing more than an accommodation of Judson's desire to get treatment and avoid serving time in jail." Under Nygren v. State, a defendant can receive credit for time served in treatment if the defendant is subjected to "restrictions approximating incarceration."

The state relies on Anchorage v. Bussel to argue that Judson's treatment was insufficiently compelled to entitle him to Nygren credit. In Bussell, we held that the defendant could not receive credit toward his sentence for time he had spent in treatment before reporting to jail because the court had never issued a valid order mandating that treatment. We observed that time voluntarily spent in a restrictive treatment environment does not automatically entitle a defendant to credit for time served. Here, the state does not dispute that the district court issued an order requiring treatment, but argues that the order was invalid because it was issued at Judson's request and on Judson's schedule.

We recently reaffirmed the Bussel! holding in State v. Fortuny. In Fortuny, the defendant enrolled in residential alcohol treatment while awaiting sentencing for DWI and third-degree assault. After Fortuny had spent about six weeks in that program, the court ordered Fortuny to continue alcohol treatment, presumably at his request. We held that Fortuny could receive Nygren credit for the days he spent in treatment after the court issued its order, but not before. The state did not argue, as it does here, that the court's order was invalid because it accommodated Fortuny's voluntary decision to enroll in treatment. Consequently, the issue raised by this appeal was never litigated.

Because we have never held that Nygren credit is inappropriate in Judson's cireum-stances, the state relies by analogy on our decision in M.R.S. v. State. The defendant in M.R.S. asked the court to order him as part of a delinquency proceeding to undergo a psychological evaluation. In a later unrelated proceeding, M.R.S. argued that the statements he made in that evaluation were protected from disclosure by the privilege against self-incrimination because they were obtained by government compulsion-i.¢., by court order. We rejected that claim, finding the statements voluntary because the psychological evaluation had been conducted "at MRS's behest and with his blessing[.]" The state asserts that this same principle applies here, arguing that "Judson's days at the rehabilitation center cannot be deemed court-ordered: the 'confinement' was voluntary, rather than compelled, because the 'order' was done strictly at Judson's behest."

The state's analogy is unpersuasive. For purposes of receiving Nygren credit for time spent in a treatment facility, the significant question is not whether the treatment was ordered at the defendant's behest or against his will, but the extent to which the defendant "is subjected to restrictions approximating those experienced by one who is incarcerated." A defendant who voluntarily enters a treatment program is not subjected to jail-like conditions because the defendant can leave the program at any time. But onee a defendant is under court order to attend treatment, that defendant faces immediate arrest and imprisonment for leaving the facility without court permission.

To support its argument that Judson's enrollment in treatment was voluntary despite the court order, the state speculates that Judge Froehlich would have excused Judson from the treatment program if Judson had changed his mind. But even if Judson had persuaded the court to release him from treatment, Judson would only be eligible for Nygren credit for the days he actually spent in the treatment program under court order, and he would face the prospect of a harsher ultimate sentence that reflected his more doubtful prospects for rehabilitation. Judson's enrollment in treatment under court order thus cannot be equated with the voluntary participation we discussed in Bussel! and Fortuny.

The significant issue under Nygren is not whether the defendant asks for treatment, but whether the defendant is subjected to jail-like conditions during treatment. The state does not dispute that the treatment facility Judson attended met Nygren requirements. We therefore conclude that Judson was entitled to Nygren credit for the time he spent in treatment even though the treatment was ordered at Judson's request.

Can Nygren credit for alcohol treatment satisfy the minimum jail time requirement in the DWI statute?

As a second DWI offender, Judson was subject to a mandatory minimum sentence of twenty days. Judge Froehlich sentenced Judson to 122 days with 100 suspended after awarding him 22 days of confinement eredit for the time he had spent in treatment and in jail. The state argues that this sentence thwarted the legislature's intent to require both mandatory imprisonment and alcohol treatment for DWI offenders.

We agree that the mandatory minimum sentence and alcohol sereening and referral are distinct requirements of the DWI statute. But the state's argument that Judson cannot use Nygren credit to satisfy his twenty-day mandatory jail term because the legislature intended courts to impose both jail time and treatment overlooks two important points. First, although alcohol sereen-ing and referral are mandated by the statute, inpatient alcohol treatment is not. Second, inpatient treatment at a facility that meets Nygren requirements "is the functional equivalent of jail time and therefore constitutes a sentence of imprisonment." Indeed, substituting inpatient treatment for jail time in some cases will result in a longer period of custody, because jail inmates get good time credit. Here, Judson spent twenty-one days in a treatment program that met stringent Nygren requirements, as opposed to fourteen days he would have spent in jail if the court had imposed the minimum twenty-day sentence and Judson had aceu-mulated the usual amount of good time ered-it.

In addition to imposing a sentence in excess of the twenty-day minimum, Judge Froehlich placed Judson on probation for three years and required him to complete any treatment recommended by the Juneau ASAP, including up to forty-five days of inpatient treatment. Thus, the court imposed just the type of sentence envisioned by the legislature for a second DWI offender: at least twenty days in a jail-like environment, alcohol sereening and referral, and additional treatment if cireumstances required.

The history of the DWI statute leads us to conclude that the legislature intended to give courts this broad latitude to order inpatient treatment for DWI offenders. In 1990, the legislature amended the DWI and sentencing statutes to ensure that courts could require rehabilitative treatment as a condition of probation or incarceration. These amendments were enacted in response to decisions of this court and the supreme court that recognized then-existing limits on the power of courts to order such treatment.

We conclude that the district court had authority to apply the Nygren credit Judson had earned in residential alcohol treatment toward his twenty-day mandatory minimum sentence. Time spent at a treatment facility that meets Nygren requirements is the equivalent of incarceration. Moreover, the legislature has clearly conferred authority on the courts to order residential treatment where appropriate for DWI offenders.

Did the court violate the bail statute by changing Judson's conditions of release without considering the proper statutory factors? '

The state next argues that the district court failed to consider the proper statutory factors before modifying Judson's conditions of release to order him to participate in residential treatment. The bail release statute, AS 12.30.020, requires courts to release a person charged with an offense on that person's personal recognizance or on the posting of bail unless that person has been convicted of certain serious offenses or the court determines that release will pose a danger to the community or will not reasonably assure the accused's appearance in court. Onee such a determination is made, the statute authorizes the court to impose a variety of bail release conditions. The state argues that the court erred when it ordered Judson to attend treatment for a reason not authorized by the bail statute: so he could get Nygren credit.

As a preliminary matter, we note that the district court ordered Judson into treatment after he had pleaded guilty to DWI. Consequently, the court's order was governed by AS 12.30.040, which regulates a defendant's release after conviction, not by the bail release statute. However, AS 12.30.040 requires the court to consider the same statutory factors before imposing conditions of release.

Although Judge Froehlich never expressly addressed these statutory factors, he did note that Judson's conviction was a "significant change" in cireumstances that could warrant release conditions different from those the court imposed before Judson changed his plea. Nevertheless, we assume for the sake of argument that Judson's DWI conviction was an inadequate basis under AS 12.30.040 for the court to order Judson into alcohol treatment to protect the public. Even so, we reject the state's claim that the court's order violated the bail statute (or AS 12.30.040) because the court had no duty to consider whether Judson was a flight risk or a danger to the community before ordering aleohol treatment at Judson's request. The requirement that courts base release conditions on these two factors is aimed at protecting the accused from needless detention, not at preventing courts from imposing more stringent bail conditions that the defendant invites. When the bail statute was enacted in 1966, its avowed purpose was to "assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges(.]" Initially, the statute authorized courts to impose conditions on a defendant's release only if necessary to ensure that the defendant appeared in court. Since then, the statute has been amended to allow courts to consider a defendant's potential danger to the community, the alleged victim, or others. But none of these changes suggests that the underlying purpose of the statute-protecting the accused from being needlessly detained-has changed.

Because the requirement that courts base release conditions on the defendant's flight risk and potential danger is aimed at protecting the defendant, we conclude that AS 12.30.020 imposes no duty on courts to consider these specific factors before imposing a rehabilitative condition that the defendant requests.

Conclusion

The judgment of the district court is therefore AFFIRMED.

MANNHEIMER, Judge,

concurring.

I join the majority's decision with some reluctance. I agree with all the legal premises discussed in the majority opinion, but I am troubled by the consequences of our decision.

When the Alaska legislature amended AS 12.55.025(c) to give defendants "credit for time served", the legislature was pursuing the aim of equal treatment among rich and poor. That is, the legislature wanted to make sure that an indigent defendant who could not secure bail release (and who therefore remained in jail while awaiting trial) would not be forced to serve more total time in jail than another defendant who remained free pending trial and who then received the same sentence.

In Nygren v. State, this court expanded the concept of "credit for time served" when we held that AS 12.55.025(c) was not limited to defendants who spent time in jail before conviction, but rather applied to all defendants who were confined by court order to a jail-like residential facility while awaiting trial and sentencing.

We are now confronted with an instance in which a defendant took strategic advantage of our Nygren decision by asking the trial court to order him to stay in a residential treatment facility while he awaited sentencing. I agree with my colleagues that this was legal and that the defendant was entitled to claim credit against his eventual sentence for the days he spent in the treatment facility. But our decision holds disquieting consequences.

Now that we have decided that Nygren credit is available to defendants who ask the trial court to order them into residential treatment, I fear that defendants may again be divided into rich and poor. Defendants who can afford the expense of a residential treatment facility will ask the court to place them there-with the result that these defendants will effectively serve their sentences in treatment facilities (for they will receive credit for the days spent there). Poorer defendants, on the other hand, will serve their sentences in jail.

It is hard to fault the trial judge for ordering Judson to engage in residential treatment for twenty days rather than having him sit in jail for twenty days. Presumably, society is better off whenever a defendant receives active treatment while in custody. And if a defendant is willing and able to pay for their own treatment, so much the better. But unless our government makes a real effort to provide treatment alternatives for defendants with less money, we in Alaska may have to get used to seeing the same type of story that intermittently appears in the media when movie stars or sports celebrities are charged with a crime involving substance abuse: the rich and the famous go to treatment centers, while other defendants go to prison.

      . AS 28.35.030(b)(1)(B).

      . See Nygren v. State, 658 P.2d 141, 146 (Alaska App.1983).

      . 658 P.2d at 146.

      . 702 P.2d 667 (Alaska App.1985).

      . Id. at 668-69.

      . Id. at 669.

      . 42 P.3d 1147, (Alaska App.2002).

      . Id. at 1148.

      . Id. at 1149.

      . Id. at 1149-1152.

      . 867 P.2d 836 (Alaska App.1994), rev'd on other grounds, 897 P.2d 63 (Alaska 1995).

      . Id. at 838-39.

      . Id.

      . Id. at 839.

      . Nygren, 658 P.2d at 146; see also State v. Crosby, 770 P.2d 1154, 1157 (Alaska App.1989) (''The right to receive credit for time served arises when a defendant's liberty is substantially restricted by court order.").

      . See Nygren, 658 P.2d at 146.

      . See AS 28.35.030(b)(1)(B).

      . See AS 28.35.030(b)(1)(B) (mandating minimum sentence of twenty days for a second offender); AS 28.35.030(h) (requiring the court to order all DWI offenders to satisfy the screening, evaluation, referral, and program requirements of an Alcohol Safety Action Program or other approved treatment facility); AS 28.35.030@) (providing that inpatient treatment may be required by an authorized agency only if authorized in the judgment).

      . See AS 28.35.030(i).

      . Dodge v. Anchorage, 877 P.2d 270, 272 (Alaska App.1994) (citing Lock v. State, 609 P.2d 539 (Alaska App.1980)); cf. Hester v. State, 777 P.2d 217, 219 (Alaska App.1989) (addition of thirty-day inpatient treatment requirement not designated in the judgment violated the double jeopardy clause because the defendant was subjected to restraints equivalent to custody).

      . See Parker v. State, 714 P.2d 802, 806 (Alaska App.1986).

      . See AS 33.20.010.

      . See ch. 188, §§ 1-5, 7, SLA 1990; January 19, 1990, Sectional Analysis of H.B. 366; note 24, infra.

      . See House Judiciary Committee hearing on H.B. 366 (January 24, 1990) (testimony by Laurie Otto, Assistant Attorney General); Memorandum on H.B. 366 from Rep. Fran Ulmer to the House Judiciary Committee (January 17, 1989); Memorandum on H.B. 366 from Rep. Fran mer to the Democratic Caucus (December 5, 1989); Letter from the Department of Law to Rep. Ulmer on the questionable authority of courts to order treatment for incarcerated offenders and as a condition of probation following the decisions in Boyne v. State, 586 P.2d 1250 (Alaska 1978), Hester v. State, 777 P.2d 217 (Alaska App.1989), and Benboe v. State, 738 P.2d 356 (Alaska App.1987) (November 17, 1989).

      . See AS 12.30.020(a).

      . See AS 12.30.020(b).

      . AS 12.30.040 provides in relevant part:
      Release after conviction. (a) A person who has been convicted of an offense and is awaiting sentence, or who has filed an appeal, shall be treated in accordance with the provisions of AS 12.30.020 unless the court has reason to believe that no one or more conditions of release will reasonably assure the appearance of the person as required or prevent the person from posing a danger to the victim, other persons, or the community. If that determination is made, the person may be remanded to custody.

      . Report of the House Judiciary Committee on H.B. 317, 1966 House Journal 110-11.

      . See ch. 20, § 1, SLA 1966.

      . See ch. 112, §§ 1, 2, SLA 1967; ch. 39, § 1, SLA 1974; ch. 143, § 16, SLA 1982; ch. 63, §§ 10, 11, SLA 1997.

      . 658 P.2d 141 (Alaska App.1983):


source: Caselaw Access Project

author: WINCHESTER, J.

license: Public Domain

text:
    2002 OK 13
    Arlando REDRICKS, Appellant, v. INDUSTRIAL VEHICLES INTERNATIONAL, INC., Appellee.
    No. 94,784.
    Supreme Court of Oklahoma.
    Feb. 26, 2002.
    Rehearing Denied April 9, 2002.
    Jean Walpole Coulter, Jean Walpole Coulter and Associates, Inc., Tulsa, OK, Brian A. Curthoys, Tulsa, OK; Attorneys for Appellant.
    Thomas H. Hull, Tulsa, OK; Attorney for Appellee.
   WINCHESTER, J.

T1 The issue before this Court is whether an employer's termination of its employee was in violation of 85 O.S.Supp.2000, § 5(B). We hold that the statute, which represents the public policy of the state, was violated by the employer.

T2 The appellant, Arlando Redricks, suffered a work-related injury on April 6, 1998, for which he received treatment. He returned to work on April 18, 1998, for three hours, but left again because of his injury. His employer, the appellee, Industrial Vehicles International, Inc., required employees who were off work due to illness, to call in daily prior to 9:00 a.m. to receive sick pay.

3 Redricks called his employer each day prior to 9:00 a.m. between April 18 and April 23, to report he would not be coming to work because of his injury. Redricks' supervisor, Arthur Hammer, testified during the trial that on April 20, he penned a note that he distributed to his machine shop personnel requiring them to call before 9:00 a.m. every day if they are gone for any reason, and if they did not call for five days, they could be terminated from employment. On April 28, Redricks' treating physician provided him a "Certificate of Disability" stating that he should remain off work indefinitely. Re-dricks took this document to his employer. After that date, Redricks did not call in each day to report that he would be absent for that day. On May 27, 1998, Hammer sent a letter to Redricks, which stated:

"Since you have failed to call before 9 AM each morning, and have not contacted us in any way, we have concluded that you have discontinued to work for IVI.
"We are, therefore, no longer considering you to be an employee of IVI.
"I wish you the best and prosperous future."

1 4 Redricks testified that he received temporary total disability benefits from the workers' compensation carrier for Industrial Vehicle International from the beginning of June to the end of July in 1998. Those payments covered the dates of April 23, 1998, to July 27, 1998. He testified that he did not call in after April 28 because his employer knew he would not be working for an indefinite period of time, and he was not trying to get sick pay. He testified that he was never provided anything to indicate that if he failed to call in before 9:00 every morning, he would be terminated. When he took the letter from his doctor to his employer on April 23rd, he was not given any document by his supervisor that day. He testified that when he received the letter from his employer terminating him, he was shocked because he did not know a person could be fired while under medical leave for a work-related injury. After a bench trial, the trial court concluded that Redricks was terminated "for failure to call in or contact the employer," and accordingly, the employer's reason for the termination was neither retaliatory nor pretextual.

15 This Court has held that an employer is not obligated in an employment-at-will contract to prove good faith or fair dealing when its employee is terminated. The employment contract may be terminated without cause at any time without incurring liability for a breach of contract. Burk v. K-Mart Corp., 1989 OK 22, ¶¶ 4, 6, 770 P.2d 24, 26. Burk observes that there are statutory exeeptions to this rule, and one of the exceptions specifically mentioned in footnote 4 is found in § 5 of title 85, that is, an employee has a statutory right to file a workers' compensation claim and the employer may not discharge the employee for exercising that right. If discharged, the employee may re cover damages from the employer. Burk, 1989 OK 22, ¶6, n. 4, 770 P.2d at 26, n. 4. This exception is considered public policy because it is articulated by statute. Burk, 1989 OK 22, ¶ 17, 770 P.2d at 28.

16 The statute provides: "No person, firm, partnership, corporation, or other entity may discharge any employee during a period of temporary total disability solely on the basis of absence from work." The parties do not contest that Redricks was discharged during a period of temporary total disability while absent from work.

¶7 The trial court cited Hopkins v. Seagate, 30 F.3d 104 (10th Cir.1994), as persuasive authority for its judgment. In that case, along with federal claims under the Civil Rights Act and Employee Retirement Income Security Act, an employee filed a claim for retaliatory discharge pursuant to Oklahoma state law. The United States District Court for the Western District of Oklahoma entered judgment on a jury verdict against the employee. In affirming the judgment, the 10th Circuit observed evidence existed supporting the fact that the employer fired the employee for reasons other than to retaliate against her for filing a worker's compensation claim. Witnesses for the employer testified that the employee was fired for failing to comply with company policy requiring her to call in each week she was off work, for failing to submit required documentation, and for failing to attend various doctor's appointments that had been arranged for her. The court further observed that the employee experienced no unfavorable treatment following her prior worker's compensation claim. Hopkins, 30 F.3d at 107.

¶ 8 The appellee, Industrial Vehicles International, argues in its response to the petition for certiorari, that the Hopkins case has almost identical facts to those of the case now before this Court. We cannot agree with the employer's assessment. The employee in Hopkins failed to comply with company policies that required her to call in each week she was off work, to submit certain documentation and to attend required doctor's appointments. In contrast, LV.I. terminated Redricks because he failed to call in every morning before nine o'clock, even though he had submitted a "Certificate of Disability" signed by his treating physician, which stated that he should remain off work indefinitely. Redricks' termination was not based on LV.I.'s written sick leave policies, but rather on a requirement reduced to writing by his supervisor while Redricks was absent because of his work-related injury.

T9 The trial court determined that the weight of the evidence did not support a finding that the worker's compensation claim was a significant factor in the employer's decision to terminate Redricks, nor did it support a finding that the reason for his termination, failure to call the employer each day, was a pretext for the termination. LV.I. explained its justification for this policy in its answer brief. It asserted that the purpose of the policy was to allow the company to schedule substitute personnel in light of the absence and to determine whether the absentee was still present in the community and intended to continue employment. Given the public policy involved, we find that a requirement reduced to writing but never sent to an absent employee, who was exercising a statutory right, is unduly burdensome given the employer's justification for the requirement. The employer knew from the "Certificate of Disability" that the employee would be out indefinitely. Requiring the employee to call every day after being given such notice violates the rights protected by the statute. Accordingly, we reverse and remand for determination of damages pursuant to 85 0.8.1991, § 6.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED AND REMANDED.

10 ALL JUSTICES CONCUR.

      . Title 85 O.S$.Supp. § 5(B) provides: "No person, firm, partnership, corporation, or other entity may discharge any employee during a period of temporary total disability solely on the basis of absence from work."

      . The employer's policy provided:
      ''The purpose of sick leave is to prevent loss of salary for short periods because of ill health, injury or disability. LVL grants sick leave for actual sickness of the employee and immediate family only.
      "LVI. does not have a policy of demanding proof of an illness but reserves the right to do so if abuse of this benefit becomes apparent. To prevent any possibility of misunderstanding an employee should inform his department head by 9:00 am of his absence due to sickness. An employee who does not report his sickness to his supervisor by 9:00 am will reveeive [sic] a paid sick day." Plaintiff's Exhibit 7.

      . The note provides:
      "Machine Shop
      "Phone Ext. 23
      "If you are sick, or not coming to work for some reason, you need to call every day before 9:00 AM. I[sic] you do not call for 5 days, we consider that you have discontinued to work for LVL
      "Arthur Hammer"


author: LAVENDER, J.

text:
    2002 OK 25
    Eddie D. JACKSON, Plaintiff/ Appellant, v. Deborah JACKSON (now Deborah Ambrose), Defendant/Appellee.
    No. 93,395.
    Supreme Court of Oklahoma.
    April 9, 2002.

      Barry K. Roberts, Norman, OK, for Plaintiff/ Appellants.
    Mark Monfort, Norman, OK, for Defendant/Appellee.
   LAVENDER, J.

T1 This cause requires us to decide if the trial court had authority to issue a Qualified Domestic Relations Order (1999 QDRO) after two prior QDROs (1998 QDRO and 1996 QDRO) were entered. We hold: in that Deborah Jackson (former wife or appellee) was awarded a formula-driven percentage of Eddie D. Jackson's (former husband or appellant) future benefit from the Oklahoma Firefighters Pension and Retirement System (System) as part of the divorcee decree's property division, the trial court had authority to issue the 1999 QDRO so long as it conformed to the formula spelled out in the decree for dividing the benefit. This is so notwithstanding that two prior QDROs had been issued, which either failed to conform to the divorce decree's property division formula and/or were rejected by the System as insufficient or inadequate to allow payment to former wife what she was owed under the decree's formula. Although a trial court is without jurisdiction or authority to issue a QDRO that substantively alters a final property division previously made in a divorce action, a trial court has jurisdiction or authority to issue a subsequent post-property division QDRO to act as the statutorily-sane-tioned mechanism by which the System gains lawful empowerment to pay a former spouse their portion of a System benefit previously awarded as part of the final property division in the divorcee action,. We also hold the Court of Civil Appeals (COCA) erred by ruling, in a 2-1 decision, that the trial court acted outside its jurisdiction or authority. Finally, we deny both appellee's June 27, 2000 counter-motion to award counsel fees on appeal and appellant's June 27, 2000 motion for award of costs on appeal.

PART I. STANDARD OF REVIEW.

¶2 This case necessitates decision as to whether the trial court had jurisdiction or authority to issue the 1999 QDRO or, instead, whether its issuance was an extra-jurisdictional modification of a final property division in a divorcee action. In that a question concerning the jurisdictional power of the trial court to act as it did is implicated our standard of review is de novo. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶8, 33 P.3d 302, 305; Stidham v. Special Indemmity Fund, 2000 OK 33, ¶10, 10 P.3d 880, 885. Questions of law are also reviewed de novo, which involves a plenary, independent and non-deferential examination of a trial court's legal rulings. Samman, at ¶8, 33 P.3d at 305. We also note: a trial court has wide discretion in the division of marital property and the decision dividing such property will not be disturbed on appeal unless contrary to law, against the clear weight of the evidence, or an abuse of discretion is shown. Randol v. Randol, 1993 OK CIV APP 41, 849 P.2d 1118, 1121; see also Carpenter v. Carpenter, 1983 OK 2, 657 P.2d 646, 651; Peters v. Peters, 1975 OK 114, 589 P.2d 26, 27.

PART II FACTUAL BACKGROUND, PROCEDURAL HISTORY AND LEGAL ANALYSIS.

PART II(A).

13 Appellant and appellee were married on or about June 5,1983. At such time, and for about ten (10) years prior thereto, appellant was a firefighter with the City of Oklahoma City. In April 1992 appellant initiated a divorce action. He was then still employed as a firefighter, as he was when the parties were divorced by decree filed on October 22, 1992. As part of the decree's property division, appellee was awarded a portion of appellant's vested interest in the System. The decree expressly found former husband had 'a vested interest in the System; part of the interest was his separate property (obviously any interest in the System earned while not married to appellee) and part was marital property (just as obviously any interest earned in the System while the parties were married). On page one of his February 18, 2000 brief in chief filed in this appeal former husband admits (1) the divorce decree awarded former wife a share of his retirement income under the System; (2) no appeal was lodged from the decree; and (8) the decree became final, Also, he does not question the trial court's initial authority to award a portion of his future retirement income to appel-lee as part of the divorcee decree's property division.

1 4 The decree contained the following concerning the division of the retirement income:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that [former husband] is awarded a portion of his retirement compensation plan with the City of Oklahoma City and [former wife] is awarded a portion of same, as follows:

pursuant to the Qualified Domestic{ ] Relations Order which is attached hereto and marked as Exhibit "A"].

In that 115 months was approximately the number of months of the marriage, the above formula appears intended to grant ap-peliee about one-half (%), ie. fifty percent (50%), of the future anticipated benefit or, in the language of the decree, of the "retirement compensation plan", earned during the marriage. In other words, the first part of the formula embodies the multiplication of two fractions. One is one-half (%) or fifty percent (50%). The other fraction has a numerator of one hundred (115) months (the approximate number of months of the parties' marriage) and a denominator representing appellant's total months of employment as a firefighter. The result of the multiplication of these two fractions (which can be expressed in percentage terms) is then multiplied by the total actual dollar benefit eventually to be paid to appellant by the System upon his retirement, which yields the actual share or amount of the System benefit to be paid to appellee.

1 5 In that appellant was still employed as a firefighter when the decree was issued and filed, the denominator of the second fraction was not then known. The longer he worked as a firefighter results in the denominator of the second fraction to be continually increasing, which concomitantly results in a decrease in the percentage appellee is entitled to under the divorce decree's formula. However, her share of the eventual retirement income from the System always remains approximately one-half (#%)-or fifty percent (50%)-of the benefit earned during the marriage,

T 6 Even though the decree states a QDRO is attached to it as Exhibit A, in actuality no QDRO was attached. Not until July 1993 was a QDRO entered in the case. In setting out appellee's share of any System benefit, the 1993 QDRO states in pertinent part: "[the then current values as of the date of withdrawal of September 28, 1992:[tIwenty-four percent (24%) of the accumulation under Oklahoma Firefighters Pension and Retirement System." Appellant concedes or admits at page three of his February 18, 2000 brief that the meaning of the quoted language is confusing, but asserts the apparent intent was to award appellee some share of what had accumulated in the pension plan during the marriage. We also note, the September 28th date appears to reference the perceived date of the divorcee (the 1998 QDRO stating the decree was dated September 28th). Prior to the COCA's decision in this case former husband, in his appellate submissions, relied on the 1993 QDRO as the order dividing the marital interest in the pension plan, although he never takes a firm stance as to its meaning, even though, as noted, he acknowledges its apparent intent is to award appellee a share of what had accumulated in the pension plan during the marriage. The 1998 QDRO was not appealed by either party.

T7 Also in 1998, although appellant became eligible to retire and receive a pension benefit with, at least, twenty (20) years of service as a firefighter, he did not retire, but continued to work as a firefighter. Instead of retiring he elected to participate in a program known as the Oklahoma Firefighters Deferred Option Plan 11 0.S8.8upp.1998, § 49-106.1, which allowed him to continue working for an additional five (5) years, while at the same time having what would have been his monthly retirement benefit, had he elected to cease employment and retire, paid into a deferred option account-the account drawing interest and eventually being paid to him in a lump sum or as an annuity upon his actual retirement. § 49-106.1. At page three of his February 18, 2000 brief appellant admits the pension benefits he would have received had he retired in 1998 were the funds paid into the deferred option plan account.

T8 In December 1996 a second QDRO issued at a time former husband still worked as a firefighter-Le. he was not actually receiving any benefits from the System, although (as noted) the retirement benefit he would have received had he retired in 1998 was being paid into the deferred option account. The 1996 QDRO contained language at odds with both the formula specified in the divorce decree and the 1993 QDRO. It provides former wife is "entitled to a monthly benefit from the Plan equal to twenty-four percent (24%) of [former husband's] vested benefit in the Plan, acerued during the period beginning the 5th day of June, 1983, and ending the 28th day of September, 1992, determined as if [former husband] separated from employment on that date with a vested benefit under the Plan. ..." Rather than giving appellee one-half (¥) or fifty percent (50%) of the benefit corresponding to the approximate length of the marriage, the 1996 QDRO seems to award her only twenty-four percent (24%) of the benefit earned during the marriage. The 1996 QDRO was not appealed by either party. Neither the 1998 or 1996 QDRO required the System to pay ap-pellee anything, unless and until appellant began receiving a benefit or some payment from the System.

T9 Appellant concedes or admits at page two of his September 5, 2000 answer to petition for certiorari that both the 1998 QDRO and the 1996 QDRO were rejected by the System as inadequate; that the 1996 QDRO used a different formula than reflected in the 1993 QDRO; and, in essence, using the 1996 QDRO would result in appellee receiving a legser amount of any System benefit than she would have been entitled to under the 1998 QDRO. Further, appellant fails to take a position in any of the materials submitted on appeal as to whether the 1998, 1996 or 1999 QDROs conform to the formula spelled out in the divoree decree, although, as above noted, he admits the formula in the decree was intended to award former wife some share of his retirement income from the System.

T{10 In April 1999 appellant moved to modify the 1996 QDRO, essentially arguing appellee was entitled to nothing from the System because, instead of retiring, he recently either had or, was about to be granted, a disability pension which he claimed was solely his separate property. Appellee counter-moved to amend the 1996 QDRO asserting it did not conform to the decree's formula. She asserted that using the diworce decree formula entitled her to nineteen percent (19%) of the benefit appellant was then, apparently, entitled to receive from the System. The nineteen percent (19%) is arrived at as follows: 115 + 805 (appellant's total months of employment) = 0.3770491, which when multiplied by % or .50 = 0.1885245, which rounds to 0.19 or nine-(19%).

{11 The trial court denied appellant's motion; granted appellee's counter-motion; and issued a third QDRO (the 1999 QDRO). The trial court's written ruling said the following concerning the System benefit(s): "[alfter consideration of the pleadings and argument of counsel, I find that the Decree of Divorce entered into October 22, 1992, was not appealed and is a final order, the Decree made an equitable division of property, that division cannot later be altered by subsequent motion and the Decree controls the division of marital property." The 1999 QDRO accepts appellee's view that the divorce decree formula entitles her to nineteen percent (19%) of the System benefit.

T12 Appellant appealed and the COCA, Div. I, affirmed in part, reversed in part and remanded. Although the COCA ruled appellee was entitled to part of the System benefit, it decided she was not entitled to the amount the trial court determined was due under the 1999 QDRO. Instead, the COCA ruled she was only entitled to a lesser amount as specified in the 1996 QDRO. The COCA's majority characterized the formula contained in the divorcee decree as awarding former wife, "twenty-four percent of the pension for the months the [parties] were married[,]" i.e. what seems called for by the 1996 QDRO. The dissenting COCA judge believed the 1999 QDRO did not modify the divorcee decree's formula-driven recitation, but conformed to it. He also, in essence, opined that the 1999 QDRO was a proper exercise of the trial court's authority in aid of attempting to enforce the decree's property division concerning appellee's share of appellant's pension benefit from the System-an aid which would allow the firefighter's pension board the authorization to pay her what had been awarded by the divorce decree, Appellee sought certiorari which we previously granted.

PART II(B).

113 Absent a specific statutory exception a trial court may consider pension benefits accumulated during the marriage as jointly acquired property subject to equitable division in a divoree. Rice v. Rice, 1988 OK 83, 762 P.2d 925, 926. Further, this Court has consistently held that a final property division judgment is not subject to modification at a later date. In re Key, 1996 OK 130, 930 P.2d 824, 825-826, Clifton v. Clifton, 1990 OK 88, 801 P.2d 693, 695 (in absence of fraud, a property settlement award, as opposed to an award for support alimony, cannot be modified in a post-decretal hearing); see also Ozment v. Ozment, 2000 OK CIV APP 52, ¶6, 11 P.3d 635, 637 (COCA, Div.3)(recognizing that pursuant to 48 O.S.Supp.1997, § 134(A), "[playments pertaining to a division of property are irrevocable and not subject to subsequent modification by the court making the award.").

114 Here, appellant admits the divoree decree awarded former wife a share of his retirement income under the System; that no appeal was lodged from the decree; and the decree became final. The decree expressly found that part of appellant's vested interest in the System was his separate property and part marital property. Rather than specifying a particular amount or percentage of appellant's anticipated future retirement benefit, the decree set out a formula for use in calculating former wife's share of the benefit. In that appellant does not dispute (as noted, he admits) that the decree awarded appellee part of his retirement income, and he also concedes or admits that the System rejected both the 1998 and 1996 QDROs as inadequate, the crux of this case is whether the trial court had authority to interpret the meaning of the formula contained in the decree and to issue the 1999 QDRO, after two previous QDRO's, in an effort to have an order acceptable to the System so that it would be empowered to pay appellee what she was awarded by the decree.

1 15 Although this Court has never had the opportunity to specifically decide the issue, on more than one occasion Court of Civil Appeals' opinions have recognized that a QDRO is generally the mechanism by which a divorce decree awarding retirement benefits to a spouse is enforced and collected with regard to the particular retirement program covered by the decree. Troxell v. Troxell, 2001 OK CIV APP 96, ¶5, 28 P.3d 1169, 1171; Taylor v. Taylor, 2001 OK CIV APP 16, ¶13, 19 P.3d 895, 898; Ozment v. Ozment, supra, 2000 OK CIV APP 52, at 110, 11 P.3d at 638. Osment further ruled that a trial court has the authority to issue a subsequent QDRO if an initial one contains some ambiguity concerning the proper division of a retirement benefit under an earlier entered divorce decree, as long as the later QDRO does not alter what was awarded initially by the decree, but conforms to it.

{16 Recitals in a journal entry of judgment are taken as true and correct and are prima facie proof of the facts stated therein where not impeached or contradicted by the record. Haskett v. Turner, 1955 OK 329, 290 P.2d 133 First Syllabus by the Court. Furthermore, where a journal entry of judgment contains the words, "It is by the court ordered, adjudged and decreed," the order following these words is the final and controlling portion of the judgment of the trial court, and, where the same is clear and unambiguous, this Court will give effect to the order, judgment and decree therein rendered. Imo Oil & Gas Co. v. Charles E. Knox Oil Co., 1926 OK 842, 250 P. 117 Syllabus by the Court, In our view, the formula-driven recitation in the decree for awarding appellee a portion of the marital interest in appellant's future benefit in the System is clear and unambiguous and the 1999 QDRO conforms to the formula there spelled out. Filling in the appropriate total months of employment of appellant as a firefighter to the formula gives former wife nineteen percent (19%) of the pension, which, again, is about one-half (%) or fifty percent (50%) of the benefit earned during the marriage. Nothing has been presented that such amount is inequitable, an abuse of discretion or contrary to applicable law.

117 Furthermore, the COCA majority plainly erred in viewing the divorce decree formula as granting appellee only twenty-four percent (24%) of the System benefit for the months the couple were married, ie. the percentage delineated in the 1996 QDRO. Such a view is plainly erroneous because, if the one hundred fifteen (115) months is properly understood as the approximate months of marriage, which, as the formula sets out, is divided by its denominator (ie. appellant's total months of employment), this figure is always multiplied by one-half (¥) or fifty percent (50%) under the formula. In other words, this will always give former wife about one-half (%) or fifty percent (50%) of the pension earned during the marriage, even though her percentage of the entire pension decreased the longer former husband worked as a firefighter after the marriage because the total months of employment increased until former husband finally retired, thus making the second figure or fraction of the divorce decree's formula smaller. In that the 1996 QDRO is patently inconsistent with the formula spelled out in the divorce decree it cannot act as the division of the marital interest in the System benefit because to give it force would plainly be allowing an alteration/change/modification of the property division concerning the System benefit spelled out in the final divorce decree.

118 Even if it is assumed there is some ambiguity in the divorce decree formula, we believe the trial court correctly resolved the ambiguity in his 1999 QDRO. Onee a ruling has become final (either for want of an appeal or in consequence of an appellate court's decision), any controversy over the meaning and effect of the decision must be resolved by resort solely to the face of the judgment roll. Fent v. Oklahoma Natural Gas Co., a Div. of Oneok, Inc., 1994 OK 108, 898 P.2d 126, 132. Furthermore, mere ambiguity will not affect a judgment's validity, unless none of its terms is susceptible to construction which will make it conformable to law. Mayhue v. Mayhue, 1985 OK 68, 706 P.2d 890, 893. Also, merely entering a second judgment cannot, per sg, vacate a prior judgment in the same action. Aishman v. Taylor, 1973 OK 130, 516 P.2d 244, 245. An unclear judgment should be construed so as to carry out its evident purport and intent, rather than defeat it, and a court should consider the situation to which it was applied and the purpose sought to be accomplished. Hicks v. Hicks, 1966 OK 91, 417 P.2d 880, 882-888.

119 This is not the first time this Court has confronted the issue of whether a trial court's action involved a modification of an earlier judgment or merely involved the trial court's construction of what was deemed an unclear judgment or part thereof. Hicks, supra. The purpose and function of a court in construing a divorce decree earlier entered is to give effect to that which is already in the judgment, although expressed ambiguously, and the court has no authority to add new provisions to the decree or to change substantive provisions already in the decree, under the guise of construing said decree. Titsworth v. Titsworth, 1952 OK 184, 244 P.2d 295 First and Second Syllabi by the Court. Here, a reasonable construction (assuming ambiguity) of the formula set out in the decree is exactly that meaning given by the trial court in the 1999 QDRO, to wit: nineteen percent (19%) of the System benefit, which, as noted is about one-half (%) or fifty percent (50%) of the benefit earned during the marriage.

PART II(C).

20 After the COCA rendered its opinion in this matter both parties moved for appeal-related attorney fees. Further, on June 27, 2000 appellant filed a motion for award of costs on appeal. By an order filed on August 4, 2000 the COCA denied appellant's motion for appeal-related attorney fees. However, no ruling was made in regard to appellee's June 27, 2000 counter-motion to award counsel fees on appeal or as to appellant's June 27, 2000 motion for award of costs on appeal. We now rule on these still-pending motions. Okla. Sup.Ct. Rule 1.184, 12 0.8.Supp.1997, Ch.15, App. 1.

¶21 The decision as to whether to award attorney fees in a divorcee action or related proceeding is within the discretion of the court and their award involves judicial balancing of the equities. 43 O.S.Supp.1997, § 110(C) and (D); Barnett v. Barnett, 1996 OK 60, 917 P.2d 478, 477-478. Based upon our review of the record, the appellate submissions of the parties and giving due consideration to the ultimate disposition of this appeal, we are convinced each party should bear the expense of his or her own appeal-related attorney fees and that appellee's June 27, 2000 counter-motion to award counsel fees on appeal should be denied.

122 Title 12 O.S.1991, § 978 provides:

When a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the tran-seript of the proceedings, or case-made, filed with the petition in error; and when reversed in part and affirmed in part, costs shall be equally divided between the parties.

The ultimate outcome of this appeal is: the trial court's denial of former husband/appellant's motion to modify the 1996 QDRO stands affirmed (COCA's disposition left unchallenged on certiorari by appellant); the trial court's grant of former wife/appellee's counter-motion to amend the 1996 QDRO stands affirmed; and the 1999 QDRO stands affirmed. In that all of the trial court's rulings challenged on appeal by appellant have been affirmed he is not entitled to recover any of his costs associated with this appeal from appellee.

PART III. SUMMARY.

123 Former wife was awarded as part of the divorcee decree's property division a formula-driven share of former husband's anticipated future retirement benefit from the Oklahoma Firefighters Pension and Retirement System (System) which equaled approximately one-half (¥) or fifty percent (50%) of the benefit earned during the marriage. The COCA's majority erred in ruling that the trial court acted outside its jurisdiction or authority when it issued the 1999 QDRO; in essentially ruling that the divorce decree formula awarded former wife only twenty-four percent (24%) of the System benefit earned during the marriage; and in concluding the 1996 QDRO controlled division of the benefit. Instead, the trial court had authority to issue the 1999 QDRO so long as it conformed to the formula spelled out in the decree for dividing the benefit, which it did, The trial court had such authority even though two prior QDROs had been issued, which either failed to conform to the decree's property division formula and/or were rejected by the System as insufficient or inadequate to allow payment to former wife what she was owed under the formula. Although a trial court is without jurisdiction or authority to issue a QDRO that substantively alters a final property division previously made in a divorce action, a trial court has jurisdiction or authority to issue a subsequent post-property division QDRO to act as the statutorily-sanctioned mechanism by which the System gains lawful empowerment to pay a former spouse their portion of a System benefit previously awarded as part of the final property division in the divorce action.

124 The opinion of the Court of Civil Appeals is VACATED IN PART and the judgment of the trial court is AFFIRMED. Appellee's June 27, 2000 counter-motion to award counsel fees on appeal is DENIED. Appellant's June 27, 2000 motion for award of costs on appeal is DENIED.

25 HARGRAVE, C.J., WATT, V.C.J., HODGES, KAUGER, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur.

11 26 OPALA, J., concurs in judgment.

      . Oklahoma Firefighters Pension and Retirement System (System), 11 O.S.1991, § 49-100.1 et seq., as amended.

      . At page one of his September 5, 2000 answer to petition for certiorari appellant also admits ''{alll property was divided by the original decree of divorce...."

      . As the text notes, the trial court also expressly found in the decree that part of former husband's interest in the System was his separate property and part was marital property.

      . The date in the divorce decree for when the parties married (June 5,1983) coupled with the decree's filing date (October 22,1992), shows the parties were actually married a couple of weeks shy of one hundred thirteen (113) months, rather than one hundred fifteen (115) months. Assuming an oral pronouncement of divorce was made by the trial court in late September 1992 (see note 6, infra) the length of the parties' marriage would be about one week short of one hundred twelve (112) months.

      . The July 1993 Qualified Domestic Relations Order (QDRO) was filed in the trial court in August 1993.

      . As we view the record (which includes the district court docket sheet) the September 28, 1992 date may be the date an oral pronouncement was made in the trial court. The hearing on the divorce was held on September 23rd and 24th; a court minute appears on the docket sheet on September 29th referring to the merits hearing in the divorce; and, as noted in the text, the divorce decree was filed in the case on October 22nd.

      . 11 0.$.$upp.1993, § 49-106.1 was amended in 1997 as to what happens should a firefighter die with an account balance in the deferred option plan. 1997 Okla, Sess. Laws (West), Ch. 247, § 1.

      . Former husband makes contradictory statements at pp. 20-21 of his February 18, 2000 brief in chief to statements made earlier in the brief as to the source of the funds paid into the deferred option plan account. At pp. 20-21 he, in essence, states the trial court did not know where the money in the account came from because no party was permitted to offer evidence in the trial court. We do not understand the contradictory statements. As former husband seems to realize at page three of the brief, 11 O0.S$.Supp.1993, § 49-106.1 itself sets out where the money in the deferred option plan account came from. Subsection(D) thereof provides in pertinent part: "[the monthly retirement benefits that would have been payable had the member elected to cease employment and receive a service retirement shall be paid into the Oklahoma Firefighters Deferred Option Plan account." Subsection (D) also makes clear that a firefighter's municipal employer provides a certain contribution to the account. We also note subsection (C) of § 49-106.1 limits the duration of participation in the deferred option plan for active firefighters to five years and further states: "[alt the conclusion of a member's participation in the Oklahoma Firefighters Deferred Option Plan, the member shall terminate employment with all participating municipalities as a fire fighter, and shall start receiving the member's accrued monthly retirement benefit from the System."

      . The completed formula can be mathematically stated: ' ©
      1 x 115/305 =
      A x 38% = 19%.
      Of course, under the divorce decree's language any dollars paid to appellee would be less or minus her pro rata share of applicable federal and state taxes.

      . The 1999 QDRO uses three hundred five (305) months as the total number of months appellant was employed as a firefighter. Both parties, in one or more of their appellate submissions, seem to indicate former husband actually had about three hundred ten (310) months of service as a firefighter and that he actually retired on or about March 1, 1999, although former husband in Exhibit B, Summary of the Case, filed with his July 20, 1999 Petition in Error, does state: "(hle was forced to retire at the end of September 1998[.]" Whether former husband worked as a firefighter for three hundred five (305) months or three hundred ten (310) months, plugging either figure into the divorce decree's formula as denominator in the second fraction yields nineteen percent (19%). Using the former results in the figure 0.1885245, which rounds to 0.19 or nineteen percent (19%). Using the latter results in the figure 0.1854838, which also rounds to 0.19. Finally, although former husband states at page five of his February 18, 2000 brief in chief he retired with twenty-five (25) years, ten (10) months and twenty-two (22) days of service with the Oklahoma City Fire Department, which arguably is three hundred eleven (311) total months of employment, and using said number as denominator in the second fraction in the divorce decree formula results in a figure of 0.1848874, which arguably rounds to 0.18 or eighteen percent (18%), nothing in the record we have been provided on appeal actually shows he had three hundred eleven (311) total months of employment as a firefighter.

      . The majority opinion of the Court of Civil Appeals (COCA) also seems of the view that the 1993 QDRO was subject to modification because the final sentence in it provided: "[this Court reserves jurisdiction to issue further orders as needed to execute this order." We read nothing in the 1993 QDRO, including said sentence, as reserving jurisdiction by the trial court to modify the formula-driven recitation in the divorce decree or to change/alter the final property division that was made by that decree about nine months earlier. Further, reserving jurisdiction to issue further orders to execute an order, i.e. issuing subsequent orders to aid in carrying out or enforcing the order's terms, is not a grant of authority to substantively alter the order's provisions.

      . As we read the opinion of the COCA, it expressly ruled against appellant on three of his appellate issues: (1) whether former wife was entitled to a share of the funds in the deferred option plan account; (2) whether she was entitled to anything, based on his assertion he was receiving a disability pension (rather than a retirement pension) claimed to be solely his separate property; and (3) that the 1996 QDRO was allegedly issued without notice to him. He failed to re-tender these issues on certiorari and, therefore, questions concerning them are not before us in this certiorari review. Generally, this Court will not review issues decided by the COCA adversely to a party that are not re-tendered for review on certiorari. Hough v. Leonard, 1993 OK 112, 867 P.2d 438, 445-446; Kerley v. Uniroyal Goodrich Tire Co., 2000 OK 62, 10 P.3d 230, 231-232; Okla. Sup.Ct. Rule 1.180, 12 O.S.Supp.1997, Ch. 15, App. 1. We also note, we need not and do not decide three issues former husband seemingly raised on appeal because review of the record presented to us on appeal fails to reveal he raised the issues in the trial court. They are: (1) his assertion the trial court erred by ruling without receiving any evidence; (2) that former wife was required to appeal System decision(s) (presumably made by appropriate administrative officials) that the 1993 and 1996 QDROs were ineffective or inadequate; and (3) a limitation issue, to the extent it is raised separately from the jurisdictional/authorization issue we decide today. Generally, this Court does not reach issues the appealing party fails to raise in the trial court. Bottles v. State ex rel., Oklahoma State Board of Medical Licensure and Supervision, 1996 OK 59, 917 P.2d 471, 472. Although there are exceptions to the general rule, we deem none applicable. Further, the party assigning error on appeal bears the burden of presenting the appellate court with a record on appeal in support of the assignments of error. Bailey v. Bailey, 1994 OK 6, 867 P.2d 1267, 1272. Legal error may not be presumed in an appellate court from a silent record. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497. The meager record we have been provided in this appeal fails to adequately support reversible error in regard to any of these latter three issues.

      . An exception to the general rule has been recognized where the parties enter into a settlement agreement (approved by a consent divorce decree) that expressly agrees to future modification of the agreed-to property division under certain specified circumstances. Greer v. Greer, 1991 OK 26, 807 P.2d 791(involved division of military retirement benefits). Neither fraud nor such an agreement is involved in this case.

      . In regard to the System, 11 O.S.Supp.1993, § 49-126(B)(2)(in effect when the 1993 QDRO was entered in the trial court) defined a QDRO as follows:
      the term "qualified domestic order" means an order issued by a district court of this state pursuant to the domestic relation laws of the State of Oklahoma which relates to the provision of marital property rights to a spouse or former spouse of a member and which creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to receive a portion of the benefits payable with respect to a member of the System.
      11 § 49-126 was the subject of amendments in 1998, 1999 and 2000. 1998 Okla. Sess. Laws (West), Ch. 198, § 2; 1999 Okla. Sess. Laws (West), Ch. 193, § 5; 2000 Okla. Sess. Laws (West), Ch. 327, § 13. None of the amendments bear on our disposition in the present matter.

      . In our view, the 1993 QDRO contains an unclear recitation of former wife's entitlement and it also is inconsistent with the formula set out in the divorce decree. We do agree with appellant that the language of this QDRO is confusing and, again, it is really not at all clear what was intended to be awarded by it. However, one interpretation is that former wife would be entitled to twenty-four percent (24%) of what had been earned in the System up to the date of the divorce, which would actually give former wife more than she requested in the trial court via the 1999 QDRO argued by her to be in conformance with the divorce decree formula. Further, the 1993 QDRO talks about "current values as of the date of withdrawal of" late September 1992. Although we are not exactly sure what the quoted language means, nowhere does the divorce decree limit former wife to the "current value" of any benefit former husband would receive as if he then withdrew from the System or then retired (which, of course, he did not). In fact, a fair reading of the decree's formula, by spelling out that former wife is entitled to a fraction (ie. a percentage) of the "[dlol-lars paid to [appellant], less [appellee's] pro rata share of any State and Federal taxes[,]" seems to reasonably point to the conclusion that former wife was to be entitled to just what the formula provided, a percentage of her former husband's retirement pension when he began to collect one.

      . Only if a judgment is ambiguous on the face of the record may a court construe it. Dickason v. Dickason, 1980 OK 24, 607 P.2d 674, 677.

      . Assuming ambiguity in the formula recited in the divorce decree, we have no hesitation in agreeing with the trial court's construction of it, as reflected in the 1999 QDRO. If the denominator reflecting appellant's total months of employment was intended to represent appellant's total months of employment at the time of the divorce decree or at the time he would reach a normal retirement date with twenty (20) years of service as firefighter-i.e. something other than his total months of employment at the time he retired and began receiving a benefit from the System-it would have been an easy task to fill in one of the two former numbers of months'and come up with a percentage for appellee's interest in appellant's eventual benefit from the System. If the total months of employment contained in the formula as denominator was intended to represent the months of employment appellant had as a firefighter up to the time of the divorce, there would have been no reason to leave this number out of the formula because it would have been known (approximately 233 months). If, instead, the total months of employment was intended to be the number of months appellant would have as a firefighter when he became eligible to retire with a normal retirement benefit under the System, there was also no reason to leave the actual number out of the decree's formula because the statutory scheme itself provides that a firefighter reaches normal retirement when he/she has twenty (20) years of service as a firefighter (Le. 240 months). 11 0.S.1991, § 49-100.1(7). The only reasonable construction of the phrase "total months of employment" is that it meant appellant's total months of employment as a firefighter at the time he retired and began to receive a benefit from the System. Therefore, the trial court's 1999 QDRO can only be deemed an order which conformed to the formula contained in the divorce decree, not an order that altered, changed or added new provisions to the divorce decree. Accordingly, the 1999 QDRO was within the trial court's authority to enter and the COCA erred in ruling otherwise. Title 11 0.S.1991, § 49-100.1(7) was amended in 1994 by the Legislature in a way not material to our disposition. 1994 Okla. Sess. Laws (West), Ch. 300, § 1. Furthermore, former husband is in no position to complain that a greater number was used as denominator-i.e. three hundred five (305) months-which gives former wife nineteen percent (19%) of the System benefit. Using two hundred thirty-three (233) months would entitle appellee to twenty-five percent (25%) of the benefit [115 + 233 = 0.4935622, which when multiplied by % or .50 = 0.2467811, which rounds to 0.25 or twenty-five percent (25%) ]. Using two hundred forty (240) months would entitle her to twenty-four percent (24%) [115 + 240 = 0.4791666, which when multiplied by 4 or .50 = 0.2395833, which rounds to 0.24 or twenty-{our percent (24%) ]. An appellant cannot complain of an error which, if corrected, would result in a greater liability to the appellant. Cameron & Henderson v. Franks, 1947 OK 232, 184 P.2d 965, 971.


author: REIF, J.

text:
    2001 OK CIV APP 53
    Michael HARRINGTON and Shirley Harrington, husband and wife, Appellants, v. CERTIFIED SYSTEMS, INC., an Oklahoma corporation; the Select Group, Inc., an Oklahoma corporation; Mackellar Oil Company, an Oklahoma corporation; and Mackellar Services, Inc., an Oklahoma corporation, Appellees.
    No. 94,040.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Aug. 1, 2000.
    Margo M. Brown, Holloway, Dobson, Bachman & Jennings, Oklahoma City, for Appellants.
    Matthew J. Graves, Oldfield & Coker, Oklahoma City, for Appellees Certified & Select.
    C. William Threlkeld, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for Appellees MacKellar.
   REIF, J.

{1 Injured worker Michael Harrington and his co-plaintiff wife appeal the summary judgment that denied recovery on their tort and statutory claims against four defendants who had an employment relationship with Mr. Harrington. Two of the defendants were related corporate entities that were in the business of supplying temporary employees. The parties stipulated that Mr. Harrington was an employee of these employment agency defendants at the time of his injury. The other two defendants were related corporate entities that were in the business of developing oil and gas interests. It was undisputed that the employment agency defendants had hired out Mr. Harrington to work on an oil rig operated by one of the oil developing defendants at the time of his injury.

T2 Mr. Harrington was injured when the floor of the drilling rig slid out of place and struck him in the head. Mr. Harrington has noted evidentiary materials that show the supervisory personnel of the defendant who operated the rig (1) knew that the rig floor did not fit properly; (2) were aware the floor could slide out unless secured; (3) made a conscious decision not to secure the floor by means that were readily available; and (4) directed Mr. Harrington to work near the rig without the protection of a hard hat, after denying his request to retrieve his hard hat from a nearby storage room. At the rig, Mr. Harrington worked under the direction and control of the supervisory personnel of the defendant that operated the rig. Despite allowing the defendant that operated the rig to direct and control Mr. Harrington, the employment agency defendants agreed to, and did in fact, provide workers' compensation coverage for Mr. Harrington. It was conceded that the workers' compensation carrier for the employment agency defendants paid Mr. Harrington benefits for the injury at issue.

13 The employment agency defendants successfully argued to the trial court that the Workers' Compensation Act provided Mr. Harrington with his exclusive remedy and provided them immunity from lability "at common law or otherwise." The oil developing defendants likewise successfully argued that they also had this immunity because Mr. Harrington was a "loaned servant" for whom they shared workers' compensation lability with the employment agency defendants.

T4 Both in the trial court and here on appeal, Mr. Harrington has contended that none of the employing entities can claim immunity under the Workers' Compensation Act. Mr. Harrington has argued that workers' compensation immunity does not apply, because workers' compensation was not his exclusive remedy. He has maintained that (1) his injury falls within the statutory remedy provided employees injured by defects in an employer's machinery under 40 0.S8.1991 § 178, and (2) his injury was the direct result of intentional acts on the part of the defendant that operated the rig. Mr. Harrington has further contended that the employment agency defendants had a non-delegable duty to provide him a safe place to work and, therefore, any intentional acts or violations of 40 ©.8.1991 § 178 can be imputed to the employment agency defendants. Mr. Harrington has maintained that the cireum-stances of this case, at least, present issues of fact concerning liability for injury by reason of a known defect in machinery under 40 0.8.1991 $ 178, or intentional injury. Upon review, we disagree with Mr. Harrington's propositions and affirm.

L.

T5 Mr. Harrington has relied on King's Van & Storage Co. v. Criner, 1956 OK 236, 301 P.2d 1015, to support his right to sue both the employment agency defendants and the oil developing defendants under 40 O.S. 1991 § 178. Mr. Harrington has maintained that § 178 gives employees a right to sue their employers that is distinct from and unaffected by the exclusive remedy of workers' compensation. Mr. Harrington has based this contention on the rule that the repeal of statutes by implication is not favored. He has stressed that § 178 was enacted prior to the first Workers' Compensation Act and that the legislature has never expressly repealed $ 178.

T6 The employment agency defendants and the oil developing defendants have noted that the Oklahoma Court of Civil Appeals recently considered the effect of the Workers' Compensation Act on § 178 in Ragsdale v. Wheelabrator Clean Water Systems, 1998 OK CIV APP 58, 13, 959 P.2d 20, 22. They have stressed that Ragsdale held "the Workers' Compensation Act prohibits injured employees from proceeding in tort against his/ her employer in district court." They assert that this prohibition included suits under § 178. In response, Mr. Harrington has contended that Ragsdale is not controlling.

T7 We note that the Ragsdale opinion expressly found that § 178 was not applicable to that casé. We further note that the court also stated that it did not decide if § 178 constitutes an exception to the rule giving exclusive jurisdiction to the Workers' Compensation Court of job-related injuries. Accordingly, we must agree with Mr. Harrington that Ragsdale is not controlling.

T8 The Ragsdale case does correctly allude to the exclusive operation of the Workers' Compensation Act as set forth in 85 0.8.1991 § 12. This statute provides, in pertinent part, that "[the liability prescribed [by the Act] shall be exclusive and in the place of all other ability of the employer and any of his employees ... at common law or otherwise." (Emphasis added.)

T9 As a general rule, "[ululess the statute otherwise provides ... as between the employer and the employee, the rights and remedies provided by the [workers'] compensation acts are exclusive, within the area of their operation [and] the remedy provided by the act is exclusive of all other statutory or common-law remedies, and of any other liability on the part of the employer." 10% C.J.S. Workmen's Compensation § 918 at 854-57 (1958) (emphasis added) (footnotes omitted). This general rule further states that "an employee whose claim is within the act cannot maintain an action at law, or at common law, in tort against his employer for damages." Id. at 859 (footnote omitted).

T10 Another widely recognized statement of this general rule provides that "workers' compensation remedies are exclusive of all other remedies for injuries within the coverage of the act suffered by employees against an employer." 82 Am.Jur.2d Workers' Compensation § 62 (1992) (emphasis added) (footnote omitted). This statement of the general rule also observes, "a legal action cannot be maintained for personal injuries compensable under a workers' compensation act." 82 Am.Jur.2d Workers' Compensation § 64 (1992) (footnote omitted).

{11 One of the chief exceptions to the exclusive liability of workers' compensation for a work-related disability is when the disability is excluded from workers' compensation coverage. 82 Am.Jur.2d Workers' Compensation § 65 (1992). An example of this exception is found in Dixon v. Gaso Pump & Burner Mfg. Co., 1937 OK 656, 80 P.2d 678. This case held that an employee could sue his employer at common law and under § 178 for earbon monoxide poisoning that the employee sustained in his employment as a mechanic. The court reached this conclusion because carbon monoxide poisoning was an occupational disease that was not covered by the workers' compensation law in effect at the time.

112 If the legislature had included the occupational disease of carbon monoxide poisoning within the Act, there is little doubt, however, that the court's conclusion in Dizon would have been different, even though the disability in that case was due to cireum-stances arguably within $ 178. The Dizon court, 80 P.2d at 681, expressed its approval of the general rule: "Where the right to an award of compensation [for] injury or death exists by virtue of the provisions of the Workmen's Compensation Act, the remedy for its enforcement is by many of the statutes made exclusive, and no action at law may be instituted against the employer."

{13 Similarly, up until 1951, the accidental death of an employee, even an employee killed while engaged in a covered hazardous employment, was not within the seope of workers' compensation. An example of an employee who was killed while engaged in a covered hazardous employment (a derrick hand) and whose personal representative was permitted to sue under § 178 as a basis to recover for the employee's death is found in Connelly v. Jennings, 1952 OK 61, 252 P.2d 133. In 1951, however, the legislature brought accidental deaths within the coverage of workers' compensation under Session Laws 1951, ch. 2, p. 267, approved May 29, 1951.

114 Another exception to the exclusive remedy of workers' compensation is where the employment is not covered by the Act. 82 Am.Jur.2d Workers' Compensation § 65 (1992). An example of this under Oklahoma law is found in Myers v. Luttrell, 1961 OK 248, 373 P.2d 22. This case concerned a judgment in favor of a farm laborer (not covered by the Workers' Compensation Act in effect at the time of his injury) in the laborer's suit against his employer under § 178. The supreme court reversed the judgment because § 178 requires a showing of negligence on the part of the employer and the farm laborer had not shown negligence on the part of his employer for the defect in the tractor that allegedly injured him. Another example of a non-covered employee successfully suing his employer under § 178 is King's Van & Storage Co., 1956 OK 236, 301 P.2d 1015, relied on by Mr. Harrington.

115 Under the current Workers' Compensation Act, only employees engaged in the employments that 85 0.98.1991 § 2.1 excludes from coverage would come within this exception to the exclusive effect of workers' com-Mr. Harrington does not come pensation. within the excluded employments of § 2.1.

116 The cases that have recognized that an employee can sue an employer under § 178 where the Workers' Compensation Act has not provided coverage clearly do not support recognition of suit under § 178 as a general exception to the exclusive remedy of workers' compensation. In addition, the supreme court has rejected the contention that the legislature intended for § 178 to be a general exeeption to the exclusive liability of the Workers' Compensation Act.

[17 Roberts v. Barclay, 1962 OK 38, 11, 369 P.2d 808, 809, involved a suit by an employee against a subcontractor and general contractor "for damages resulting from a fall from a scaffold, which occurred in the course of plaintiff's employment." The trial court sustained demurrers by the subcontractor and general contractor (both of whom had liability under the Workers' Compensation Act) ruling "that the subject matter of this action was within the exclusive purview of the Workmen's Compensation Law of Oklahoma." Id. at T2, 369 P.2d at 809.

In affirming the trial court, the supreme court observed: "The petition also sets out at length the provisions of 40 0.8. 1951 $ 174, and refers to 40 0.8.1951 §§ 177 and 178. These sections are known as the 'Oklahoma Seaffold Act'" Id. at T8, 869 P.2d at 810 (emphasis added). These statutes were all enacted together in 1908 in H.B. 269. Session Laws 1907-1908, ch. 53, pp. 519-21, approved May 2, 1908. Neither the title of H.B. 269 nor any companion statutes officially designate these statutes as the Oklahoma Scaffold Act but the supreme court recognizes them as such including $ 178.

119 In Roberts, one of the plaintiffs arguments in challenging the trial court's ruling was that "the Oklahoma Workmen's Compensation Law and the Oklahoma Scaffold Act (40 0.9$.1951 § 174 et seq.), when construed together, give plaintiff here a common law cause of action." Id. at 1 14, 869 P.2d at 810. The supreme court noted that "Ipllaintiff argues to the general effect that the Workmen's Compensation Law, enacted in 1915, did not amend the Scaffold Act or restrict the cause of action concerned [therein] in any way.". Id. at 1 16, 869 P.2d at 810. The supreme court answered this contention by stating, "We cannot agree." Id. at 117, 369 P.2d at 810.

120 In rejecting the plaintiff's argument, the Oklahoma Supreme Court looked to case authority from Illinois because "[t]he Illinois Seaffold Act is substantially the same as ours." Id. The Oklahoma Supreme Court cited approvingly a decision by the Illinois Supreme Court that held: "To the extent that it prohibits an action by an employee against an employer, the Workmen's Compensation Act has amended the Scaffold Act." Id. at 1 20, 869 P.2d at 811.

121 In Roberts, the Oklahoma Supreme Court affirmed the trial court's ruling "that the subject matter of this action was within the exclusive purview of the Workmen's Compensation Law." Id. at 12, 869 P.2d at 809. The supreme court explained its affir-mance by noting:

The petition herein shows on its face that plaintiffs damages resulted from an accidental personal injury which arose out of, and in the course of, his employment with defendant Barclay. In such case, his exclusive remedy is in proceedings under the Workmen's Compensation Law of this state, 85 0.8.1951 $ 1 et seq. It necessarily follows as a matter of law that he has no common law damage action [including suit under § 178] against defendants here.

Id. at T21, 869 P.2d at 811. Based on the foregoing, we hold that the trial court properly granted summary judgment in favor of all defendants to the extent that either Mr. Harrington or his co-plaintiff wife were seeking recovery on the basis of 40 0.8.1991 § 178.

IL.

122 The Roberts case also dealt with an allegation that workers' compensation was not the exclusive remedy for "an injury wilfully inflicted by employer upon employee." Id. at ¶5, 369 P.2d at 809. In Roberts, the supreme court "conceded that an employee who has been wilfully injured by his employer has a common law action for damages." Id. at 14, 369 P.2d at 809 (emphasis added) (citing Adams v. Iten Biscutt Co., [1917 OK 47], 162 P. 938). However, the court rejected the plaintiffs effort to remove his claim from workers' compensation because "(tlhe statement of facts ... does not support the proposition that plaintiff was wil-fully injured by his employer." Id. at ¶11, 369 P.2d at 810. In Roberts, the plaintiff was injured because the scaffolding on which he worked fell because it was not properly secured.

123 In the case of Thompson v. Madison Machinery Co., 1984 OK CIV APP 24, 117, 684 P.2d 565, 568, citing Roberts and Adams, the court of civil appeals held:

This court, like those before us, determines that the workers' compensation statutes were designed to provide the exclusive remedy for accidental injuries sustained during the course and scope of a worker's employment [and] were not designed to shield employers or co-employees from willful, intentional or even violent conduct.

In Thompson, the plaintiff was struck in the face with a wrench by a co-employee who was also part owner of the defendant corporate entity that employed them. Significantly, the court of civil appeals sustained a summary judgment in favor of the corporate employer because the co-employee "was acting on his own behalf and outside the scope of his responsibility as an employer and co-owner [of the business]." Id. at 123, 684 P.2d at 570.

{24 In a later case where various female employees alleged that their supervisors sexually battered and harassed them, the court of civil appeals rejected the employer's defense that workers' compensation was the exclusive remedy for such conduct. Pursell v. Pizza Inn, Inc., 1990 OK CIV APP 4, 18, 786 P.2d 716, 717 (citations omitted). Relying on Thompson and the cases cited therein, the court stated:

While it is true that 85 0.8. § 11 and § 12 provide for an exclusive Worker's Compensation remedy to employees who sustain accidental on-the-job injuries, we find that the [employees'] allegations of intentional and/or willful injury at the hands of Supervisors, agents of Company, take the [employee's] claims outside of the exclusive remedy provision of § 12.

¶25 In each of the foregoing cases, the court decided whether the conduct of the defendant employer involved a willful or intentional injury without specifying how the court defined willful or intentional injury. We do not believe that an employer should face the loss of legislatively-provided immunity from a civil suit by an injured employee without knowing in advance what constitutes willful or intentional injury. In view of the fact that the willful or intentional injury exception to exclusive liability and immunity under workers' compensation resulted from judicial interpretation of the Workers' Compensation Act, this court may and should complete the process of interpretation by supplying a definition of willful or intentional injury.

126 In providing a definition of willful or intentional injury, we start with the factual cireumstances of the foregoing cases. In Roberts, the employee was injured because equipment (scaffolding) was not properly installed in a situation that involved a high degree of risk and danger, and which called for the utmost care on the part of the employer. The failure of the employer to properly install the equipment under such cireum-stances was gross negligence, and yet the supreme court held that this was not willful injury of an employee by an employer.

127 In Thompson and Pursell, supervisors committed battery upon the plaintiff employees at work and this was found sufficient in each case to cause the loss of statutory immunity provided to the supervisors as co-employees. We are cognizant that Thompson and Pursell reached different conclusions on the issue of whether the battery by the supervisors would be imputed to the corporate employers. We believe that the difference in the court's conclusions in this regard resulted from the fact that these two employers had different degrees of legal duty to protect the employees from the intentional torts inflicted by the supervisors. Despite their differences, Thompson and Pursell both recognize that an intentional tort such as battery is a willful or intentional injury that will cause an employer's loss of immunity, if the intentional tort of a supervisor can be imputed to the employer. '

128 A willful or intentional injury of an employee by an employer results in the loss of legal protection that the legislature has generally provided to the employment relationship. We believe that judicial interpretation of willful conduct in the context of the loss of other legislative protection of an employment relationship should be considered in defining a willful or intentional injury. The supreme court has held that before a teacher can be deprived of the employment protection of tenure for willful neglect of duty, that the teacher's conduct must have been "knowingly and purposeful." Childers v. Independent Sch. Dist. No. 1, 1981 OK 123, 119, 645 P.2d 992, 996. Defining a willful or intentional injury to involve knowing and purposeful conduct on the part of the employer to injure the employee is consistent with the specific holdings in Roberts, Thompson, and Pursell.

129 Many states have express statutory exceptions from the exclusive liability and immunity provided employers under their respective workers' compensation acts for willful, intentional or deliberate conduct by an employer to injure an employee. David B. Harrison, Annotation, What Conduct Is Willful, Intentional, or Deliberate Within Workmen's Compensation Act Provision Authorising Tort Action For Such Conduct, 96 A.L.R.3d 1064 (1980). In reviewing this annotation, we find that the clear weight of authority favors the rule of "deliberate intention" to cause an employee's injury. This rule of deliberate intention involves "the formation by the employer of a specific intention to cause an injury ... {combined with some action aimed at accomplishing such result), as opposed to mere employer negligence or even gross negligence." Id. at 1068.

130 We find that the statement of this rule by the appellate courts in Oregon and Washington closely parallels what the appellate courts in this state have found to be willful or intentional injury. The Oregon and Washington cases cited in the annotation define "deliberate intention" to produce injury to mean the employer must have specifically determined to injure an employee and used some means appropriate to that end; mere carelessness or negligence, however gross, does not establish such intent.

131 In addition, many states like Michigan, have an "intentional tort" exception to workers' compensation. The Michigan court of appeals has held that "mere knowledge and appreciation of the risk involved in an act is not the same as the intent to cause injury." Boyer v. Louisville Ladder Co., 157 Mich.App. 716, 403 N.W.2d 210, 211 (1987) (citation omitted). In this Michigan case, the employer failed to provide a safety cable to a worker on scaffolding which fell. The court held that this serious and dangerous omission did not reflect an intent to cause injury, notwithstanding knowledge that injury was substantially certain to follow if the seaffold-ing fell.

132 Finally, we are persuaded by a case reported in this annotation that is closely analogous to the facts of the instant case-Dunleavy v. Yates Constr. Co., 114 N.C.App. 196, 442 S.E.2d 538 (1994). In Dunleavy, the appellate court upheld a summary judgment in favor of the employer on the employee's intentional tort claim, even though the employer failed to shore-up or brace an excavation that required such measures and allowed the employee to work without a hard hat. The court found the defendant-employer's disregard of safety rules to be negligent, but not rising to the level of intentionally doing something that was substantially certain to result in the accident.

183 In the instant case, this court recognizes that it was negligent and, perhaps, grossly negligent (1) for employer to use a rig floor that did not fit, (2) for employer not to secure the floor from sliding out of place, and (8) for employer to direct Mr. Harrington to work around the unsecured floor without the hard hat he had requested. However, these acts did not constitute wiliful or intentional injury because (1) they were no more "willful" than the employer's failure to properly secure the scaffolding in Roberts (2) they did not constitute a traditional intentional tort as recognized in Thompson and Pursell; (8) they did not involve conduct of a knowingly and purposeful character to injure Mr. Harrington; and, (4) they involved no deliberate intent, specific intent, or conscious determination to injure Mr. Harrington. Significantly, they did not even rise to the level of the most liberal test of intentionally doing something that was substantially certain to result in the injury-causing accident.

134 "[Tlhe test for deciding whether an employee may pursue a tort action or is confined to a workers' compensation action is whether the act complained of is normally within an employer-employee relationship." 82 Am.Jur.2d Workers' Compensation § 64 (1992)(footnote omitted). One of the earliest Oklahoma cases to consider the application of the Workers' Compensation Act to the exelusion of a tort remedy adopted a similar test. In syllabus 2 of Invader Oil & Refining Co. v. Ridenhour, 1925 OK 577, 239 P. 910, the supreme court said: "The test of liability under the Workmen's Compensation Act, for injuries arising out of and in the course of employment, is not the master's dereliction, whether his own or that of his representatives, acting within the seope of their authority, but is the relation of the service to the injury, of the employment to the risk." See also Thompson, 1984 OK CIV APP 24, 684 P.2d 565. The summary judgment record actually presented fails to support a tort claim by Mr. Harrington against any of the defendants who had an employment relationship with him, because his injury resulted from (1) acts normally within the employer-employee relationship and (2) employment risks directly related to his service.

T35 Based on the foregoing, we hold the trial court properly granted summary judgment in favor of all the defendants to the extent that cither Mr. Harrington or his wife were seeking recovery on the basis of willful or intentional injury of Mr. Harrington by the defendant who operated the drilling rig.

136 We further hold that Mr. Harring ton's exclusive remedy for the injury in question was under the Workers' Compensation Act and that all of the defendants have immunity from any other liability, including a claim for loss of consortium by Mr. Harrington's wife. Rios v. Nicor Drilling, 1983 OK 74, 665 P.2d 1188.

137 AFFIRMED.

GOODMAN, C.J., and STUBBLEFIELD, J., concur.