source: Caselaw Access Project

author: OPALA, V.C.J.

license: Public Domain

text:
    2004 OK 27
    Betty YEATMAN, Petitioner, v. NORTHERN OKLAHOMA RESOURCE CENTER OF ENID, Compsource Oklahoma, and The Workers’ Compensation Court, Respondents.
    No. 98,951.
    Supreme Court of Oklahoma.
    April 13, 2004.

      Walt Bruñe, Ponca City, and Fred L. Boettcher, Ponca City, for Petitioner.
    Darren Derryberry and Victor Trautmann, Oklahoma City, for Respondents.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   OPALA, V.C.J.

¶ 1 This certiorari presses two questions for our decision: (1) Whether the Court of Civil Appeals (COCA) erred when it sustained the Workers’ Compensation Court’s (WCC) refusal to recognize an order made approximately ñve-months earlier? and (2) Did COCA err when it placed upon the claimant the burden of proving her continued temporary total disability? We answer both questions in the affirmative.

I.

THE ANATOMY OF LITIGATION

¶ 2 Betty Yeatman (Yeatman or claimant), an employee of Northern Oklahoma Resource Center of Enid (with CompSource, its insurance carrier, collectively respondent or employer), injured her shoulder on 20 April 1998 while lifting a patient from bed to place him in a wheelchair. Respondent began paying TTD benefits on 27 April 1998.

¶3 Claimant’s injury was conservatively treated for approximately one year. On 26 April 1999 Yeatman’s treating physician suggested arthroscopic surgery might be indicated but noted a complicating factor that was not work related — a seizure disorder — that he recommended must first be evaluated by a neurosurgeon. His report added that claimant was limited in her ability to function. Yeatman was scheduled in June 2000 to undergo brain-lesion surgery to alleviate her seizures when she discovered that she had breast cancer. She subsequently underwent surgery first for breast cancer in June 2000 and then for the brain lesion in August 2001. She had no further treatment for her shoulder condition.

¶ 4 The record reveals employer’s concerns about claimant’s failure to receive treatment for her shoulder injury after 26 April 1999 and its concomitant payment of TTD. On 27 February 2001 Yeatman requested additional TTD benefits. The Workers’ Compensation Court issued a 4 April 2001 order requiring respondent to continue payment of TTD benefits for up to an additional 62 weeks but deferred to a future hearing any demand for TTD overpayment. Employer stopped paying benefits on 29 December 2001, urging that its duty to pay them ended by operation of law in accordance with the terms of 85 O.S. Supp.1997 § 22.2(b). It then moved on 10 January 2002 for an order terminating-temporary compensation. Employer’s motion noted it had “terminated TTD as respondent received no extension of benefits or any medical [treatment] to support continued benefits.” Claimant timely moved for a hearing on her objection to the termination. On 6 May 2002 she requested that the court hear both TTD and permanent partial disability (PPD) benefit issues.

¶ 5 Before Yeatman’s hearing she went to two evaluating physicians, neither of whom had seen her previous to their examinations. Claimant’s rating doctor found her temporarily totally disabled from the date of injury through the date of the examination, 20 February 2002. Respondent’s physician made no mention of temporary total disability period but found Yeatman had achieved maximum benefit from medical treatment and was unlikely to benefit from continued therapy. These evaluations were admitted in evidence at the 28 August 2002 hearing. Each party interposed a probative-value objection to the other’s medical reports. Yeatman testified at the hearing that she no longer desired shoulder surgery but, as COCA correctly noted, nothing was elicited about the time when she made that decision.

¶ 6 On 18 September 2002 the trial judge adjudicated the extent of Yeatman’s permanent partial disability and awarded her PPD benefits. She further ruled Yeatman to have been temporarily totally disabled for only one year — from the time of her injury to 26 April 1999. The order held respondent was entitled to a credit for TTD overpayment from 26 April 1999 (one year after the date of her injury) to 29 December 2001 (the date respondent quit paying benefits). Claimant then sought intra-court review contending the decision was contrary to the clear weight of the evidence. In a two-to-one decision a three-judge panel of the WCC sustained the trial judge’s order. Claimant sought review of the adverse panel decision.

The Court of Appeals’ Pronouncement

¶ 7 Yeatman sought relief from the panel’s order urging (1) her intervening medical conditions, which prolonged the period of temporary total disability, do not afford a legally tenable basis for terminating temporary total disability, citing Thomas v. Burggraf Restoration, (2) the overpayment credit to her employer is not supported by competent evidence and (3) the WCC failed to adjudicate her claim for TTD benefits from 29 December 2001 (the date respondent stopped paying TTD) to 20 February 2002 (the date her rating physician determined she was no longer in a healing period).

¶ 8 Employer responded that (1) the totality of the evidence supports the trial tribunal’s order granting it credit for overpaid TTD (2) claimant’s TTD benefits expired by operation of law and the burden of proof would hence rest on the claimant if additional compensation is sought (3) the principles that deal with intervening medical conditions are not applicable here and (4) because claimant failed to raise (before the three-judge panel) her request for TTD benefits from 29 December 2001 to 20 February 2002, COCA may not now address them on appeal.

¶ 9 The Court of Civil Appeals (COCA), Div. Ill, sustained the panel’s ruling. It concluded that Thomas — a case dealing with the impact of intervening medical conditions which prolong TTD — was not apposite to the resolution of this controversy. Thomas teaches that a claimant receiving previously awarded TTD does not forfeit these benefits when a medical condition, not caused by claimant, requires that the treatment being provided be postponed. Yeatman, according to COCA, failed to show she was in a healing period during the second 52 week period, the time of her intervening illnesses. The Thomas principles are hence inapplicable. Further Yeatman did not postpone treatment, according to COCA, but decided not to pursue further treatment. She hence elected to seek PPD benefits, meaning that in law she had reached maximum medical improvement. Because Yeatman’s last treatment for her shoulder injury was within the first fifty-two week period, COCA ruled the trial tribunal was correct in not authorizing TTD beyond that period.

¶ 10 COCA next addressed Yeatman’s contention that the employer’s TTD overpayment credit does not rest on competent evidence. According to her, this is so because her employer failed to present any evidence that shows her TTD status has ended. Only the report submitted by Yeatman’s evaluating physician defined the length of her TTD period. COCA ruled that Yeatman’s inability to show she was temporarily totally disabled during the second 52-week period is exactly the competent evidence that supports the overpayment.

¶ 11 Lastly, because COCA agreed that claimant was not temporarily totally disabled after 26 April 1999, it held the WCC’s failure to address her claim for TTD benefits from 29 December 2001 to 20 February 2002 to be moot.

The Parties’ Certiorari Arguments

¶ 12 Yeatman’s certiorari petition and brief challenge both the panel order and COCA’s opinion. She maintains respondent has failed to submit any evidence that proves she was no longer temporarily totally disabled, and that COCA’s conclusion — that she abandoned treatment for her shoulder — is unfounded by proof. She continues to assert that the Thomas principles are applicable to her situation. Yeatman further urges that COCA’s analysis impermissibly places on her the burden of proving she was in a healing period. Because the April 2001 order awards her TTD, she contends the only way payments could be discontinued during the period over which it extends is by termination based upon a medical report that finds TTD to have ended. The burden of proving termination (during a period covered by an order for continuing TTD) rests on the employer in accordance with the terms of 85 O.S. Supp.1997 § 1.1B and 85 O.S. Supp. 1997, Ch.4, App. Rule 15.

¶ 13 Employer continues to maintain that claimant’s TTD benefits do not simply extend for an indefinite, period until the employer provides evidence supporting its earlier termination. Rather, she is required periodically to provide medical proof to support her claim for continuing TTD, in accordance with the terms of 85 O.S. Supp.1997 § 22.2(b) and extant jurisprudence. Yeatman failed after 26 April 1999 to present any medical evidence that shows her to be in a healing period. If claimant desires to seek additional benefits, the burden of proof and persuasion must now fall on her.

II.

STANDARD OF REVIEW

¶ 14 The dispositive issues pressed on certiorari call solely for resolution of legal questions. Review of contested law is governed by a de novo' standard. In its reexamination of the trial tribunal’s legal rulings an appellate court exercises plenary, independent and nondeferential authority.

III.

TODAY’S FIRST ISSUE IS TO BE RESOLVED BY THE PRINCIPLES APPLICABLE TO AN ORDER’S RE-VIEWABILITY

¶ 15 Resolution of the first question in today’s controversy — whether the trial tribunal erred when it overlooked the binding effect of its April 2001 order extending TTD — requires that we address a rule of law not raised by either party — that which governs reviewability of a compensation order. A worker’s quest to receive compensation for an on-the-job injury is a statutory public-law proceeding, not a private dispute. When resolving a public-law question, we are free to choose sua sponte the dispositive public-law theory although the wrong one is advanced.

¶ 16 Any order of the workers’ compensation court which makes or denies an award or otherwise determines the rights of the parties is final and subject to immediate review. An aggrieved party must seek review at the first opportunity. Failure to complain of error at that stage makes the decision final and impervious to any reconsideration.

¶ 17 As a trial tribunal the WCC retains exclusive jurisdiction over its orders and awards only during the period prescribed by law for lodging a proceeding for review. One who is aggrieved by a decision of the trial judge has three available remedies. The award becomes final and conclusive upon all questions unless (a) within 20 days after a copy of the award has been sent to the parties, review is sought in the Supreme Court, or (b) appeal is brought to a three-judge panel of the WCC within 10 days after a copy of the award is sent or (c) within the same 20 day statutory period during which review of the original award could have been sought, a trial judge’s order vacating the award is issued upon due notice to the parties and after an adversary hearing. Upon failure of the parties to appeal or bring review an order becomes binding and conclusive.

¶ 18 Here the court’s April 2001 order made a continuing TTD award. _ It granted Yeatman up to 52 weeks of continuing TTD and deferred to a future resolution only a demand for overpayment credit. The order’s perplexing wording' — deferring to a future hearing the issue of TTD overpayment credit — does not strip the rest of its terms of attributes of finality. It was subject to reexamination solely during the period prescribed' for intra-court or appellate review. The employer here invoked none of the available remedies in response to the trial judge’s award of continued TTD benefits. The April 2001 award hence became final. It is subject solely to expiration, judicial extension or an earlier termination than upon the full length of 52 weeks. The WCC’s September 2002 order here under review not only changed Yeatman’s status from that of TTD to PPD. It, in essence, stripped of effectiveness the entire April 2001 order before its term expired or there was a judicial declaration either terminating or extending TTD benefits, In short, the trial judge impermissibly overlooked the force of the April 2001 order after her power to disturb its binding effect had ceased.

IV.

A CLAIMANT’S TEMPORARY TOTAL DISABILITY AWARD STANDS SUBJECT TO EXPIRATION OR TO JUDICIALLY IMPOSED SOONER TERMINATION

¶ 19 A TTD award, no longer subject to appellate re-examination, stands subject to expiration, earlier judicial termination or to the tribunal’s extension beyond the earlier period. Oklahoma statutes provide a comprehensive scheme which governs the procedure for award, continuation, expiration and termination of TTD benefits. These enactments are to be read in conjunction with § 1.1(B) which places the burden of proof “on the party requesting benefits or relief ...” It is within this statutory ambit that we find resolution of the second issue — that of which party is to bear here the burden of proof for termination of TTD benefits, granted by the April 2001 order.

A:

Extension and Expiration of Temporary Total Disability

¶ 20 Temporary total disability for which compensation may be allowed is defined as the healing period or that time following an accidental injury when an employee is totally incapacitated from work due to illness resulting from injury. Section 22.2(b), relied on by respondent, deals with the establishment, extension and expiration of TTD. Its terms provide that TTD is to be awarded during a defined period, not to exceed 52 weeks. After compensation has been paid for one year, an extension of TTD may be granted for up to 52 weeks provided the “claimant has requested a review of the case at 42 weeks during each period involved.” Oklahoma’s extant jurisprudence teaches there is no presumption that temporary total disability continues indefinitely. Claimant must as a basis for temporary total compensation award adduce affirmative proof of a disability period.

¶ 21 In short, a TTD award (not otherwise terminated, infra section B) continues for the duration of its length. It becomes inefficacious upon expiration of its term unless claimant timely requests a hearing and is granted extended compensation. It is the employee who bears the burden of proof when an extension of TTD benefits is requested. A claimant whose benefits have expired bears the burden of proving additional TTD benefits.

B.

Termination of Temporary Total Disability

¶ 22 Rule 15 prescribes the procedure for how temporary compensation may be terminated. Subsection A addresses those situations where compensation may be terminated without a court order. The terms of subsection (A)3 — the only provision that initially appears to have any possible relevance— allow for termination without a new court order when the claimant files a PPD evaluation report. Claimant requested a hearing on the issues of PPD and TTD on 6 May 2002, but its filing has no impact on today’s controversy because the terms of the April 2001 order expired shortly before that request was brought. More importantly, the employer filed its own motion to terminate TTD prior to the expiration of the April 2001 order. This alone alters the issue’s procedural posture.

¶ 23 Where Rule 15(A) and (B) do not apply, subsection (C) is pertinent “[i]n all other events, ... only as follows.” Its terms require an employer move for termination of TTD. The motion may be accompanied by a physician’s report. An employee who objects to termination must request a hearing. The burden of proof to terminate a continuing TTD award rests on the movant.

C.

Yeatman’s TTD Order Did Not Expire But Stands Subject to Respondent’s Motion to Terminate Compensation

¶ 24 Respondent’s certiorari arguments are inapposite and indicate its confusion concerning whether expiration or judicial termination is called for here. According to our calculations, employer stopped paying benefits at the 42nd week of awarded benefits under an order whose terms allow compensation for up to 52 weeks. Although it asserts TTD ceased by operation of law in accordance with § 22.2(b), it nonetheless filed a motion to terminate compensation. The reason for termination stated on the motion seems to address § 22.2(b) concerns dealing with expiration, not Rule 15(C) termination essentials. No cut-off date for TTD compensation is given in respondent’s motion nor is there an explanation as to why 29 December 2001 (the date employer stopped paying TTD benefits) is critical to § 22.2(b) terms. The record contains no further motion by claimant for continuation of benefits beyond the scope of the April 2001 order. It does reflect that claimant timely responded to employer’s motion to terminate compensation in accordance with Rule 15(C) provisions and moved for a hearing, objecting to respondent’s motion to terminate TTD. Claimant later requested a hearing on the issues of PPD and TTD.

¶ 25 Benefits of temporary compensation, under an award no longer subject to review, do not expire by operation of law until the terms of an order have been satisfied. Here the April 2001 order extends benefits for up to 52 weeks. Because it is no longer subject to review, temporary compensation will not automatically cease before the 52 week period is completed. The order is nevertheless subject to judicial termination. Judicial termination process is the sole method available to respondent to arrest TTD payments prior to the order’s expiration. Albeit for a mistaken reason, respondent filed a motion to terminate compensation before claimant’s request for a hearing on the PPD issue. Because it is the party •requesting relief and has not withdrawn its motion, the burden of proof rests on respondent.

¶ 26 The trial tribunal impermissibly overlooked (or perhaps mistakenly regarded as having no legal impact on the issues before the trial tribunal) the April 2001 order as if it did not constitute an adjudicated liability. As of 20 March 2001 (the hearing date for claimant’s request for continuing TTD) Yeat-man’s condition stood adjudicated as that of being in a healing period. The ruling was memorialized by the April 2001 order. If, upon remand, respondent is able to establish a pre-expiration cessation of TTD, and there is no contrary proof, the trial judge should allow credit for overpayment beginning at the healing period’s termination. If, on the other hand, the proof fails to show the healing period came to an end before the order’s expiration, the trial tribunal must then readdress claimant’s motion to determine the period of claimed TTD. Upon readdressing respondent’s TTD liability, the PPD award’s payment schedule may need to be readjusted in order to make it conform to the trial tribunal’s resolution of the other liability.

IV.

SUMMARY

¶ 27 Today’s controversy must be resolved by invoking sua sponte the binding force of a prior TTD order. An order awarding temporary total disability is final. Failure timely to bring an intra-court appeal or to seek corrective relief on review makes that decision binding and conclusive upon the parties. Because employer invoked none of the available remedies for relief from the April 2001 order, it became final and its binding force is now unassailable insofar as it finds and concludes that claimant has a right to TTD for 52 weeks beginning 20 March 2001 and ending on that condition’s earlier termination.

¶ 28 An award of temporary total disability, no longer subject to re-examination by appeal or review, is subject to expiration, judicial extension or earlier termination. Employer sought termination prior to the time the order’s terms expired by operation of law. The burden to prove claimant’s expiration of her healing period falls upon the moving party in accordance with § 1.1(B).

¶ 29 On certiorari previously granted, the Court of Civil Appeals’ opinion and the Workers’ Compensation Court’s order — the latter only insofar, as it determines temporary total disability and overpayment credit — are vacated; the claim is remanded to the trial tribunal with directions to readdress in a post-remand proceeding the rights conferred upon claimant by its earlier order whose binding force was impermissibly overlooked.

¶ 30 HODGES, LAVENDER, KAUGER, BOUDREAU and EDMONDSON, JJ., concur.

¶ 31 WATT, C.J., concurs in result.

¶ 32 HARGRAVE and WINCHESTER, JJ., dissent.

      . Claimant's injury was diagnosed as a rotator cuff tear.

      . The record does not include an order initiating TTD payments but the parties' briefs agree that employer began TTD payments on 27 April 1998. We assume that respondent voluntarily commenced TTD payments in accordance with the terms of 85 O.S. Supp.1997, Ch. 4, App. Rule 14.

      . Treating physician’s report of 26 April 1999. (Record, p. 32)

      . On 6 July 1999 respondent moved for a pre-hearing conference on its request that the claim be held in abeyance because of the physician’s failure to treat claimant. In its 13 July 2000 answer to the fourth of claimant’s motions for a hearing on supplemental medical benefits (filed 1 November 1999, 4 November 1999, 10 December 1999 and 26 June 2000) respondent lists "reserve overpayment of TTD from 4/26/1999 to present ...” Employer's 8 November 2000 request for prehearing conference lists "discuss unrelated health problems affecting treatment and period of TTD.” The record is devoid of documents that indicate the ultimate disposition of these filings.

      . The request for continued TTD was heard 20 March 2001. The order was filed 6 April 2001.

      . The order provides:
      "That respondent and insurance carrier shall continue payment of temporary total disability benefits to claimant for up to an additional 52 weeks.
      That determination of overpayment of temporary total disability compensation is reserved for future hearing." (Record, p. 19) (Emphasis supplied)

      .(Respondent's brief, p. 1) The respondent does not explain why the 29 December 2001 date is critical in relation to § 22.2(b) terms. It simply quotes that portion of § 22.2(b), infra, which provides the employee “shall be paid [benefits] during the continuance thereof, but not in excess of fifty-two (52) weeks." (Respondent’s supplemental brief, p. 2) (Emphasis supplied)
      The terms of 85 O.S. Supp.1997 § 22.2(b), the statute in force at the time of claimant's injury, provide:
      "2. Temporary Total Disability.
      * * *(b) With respect to injuries occurring on or after the effective date of this act, in cases of temporary total disability, seventy percent (70%) of the employee’s average weekly wages shall be paid to the employee during the continuance thereof, but not in excess of fifty-two (52) weeks, except as otherwise provided in the Workers’ Compensation Act. Provided, after compensation has been paid for a period of forty-two (42) weeks, the employee may request a review of the case by a judge of the Court for continued temporary total disability benefits provided by the Workers’ Compensation Act. Upon a finding that benefits should be extended beyond the initial fifty-two-week period, compensation may be continued for additional successive fifty-two-week periods, provided the employee has requested review of the case at forty-two (42) weeks during each period involved, and upon a finding by the Court that benefits should be extended. Total payments of compensation for temporary total disability may not exceed a maximum of three hundred (300) weeks in the aggregate.”

      . (Record, p. 22)

      . Two motions for a hearing were submitted by claimant. The first, filed 28 January 2002, objected to the termination of TTD. The second, filed 5 May 2002, requested the issues of PPD and TTD — the latter from 24 April 1998 to 20 February 2002 — be heard.

      . This report was dated 6 June 2002.

      . The September order provides:
      " * * * XHAT as a result of said injury, claimant was temporarily totally disabled from APRIL 27, 1998 to APRIL 26, 1999; claimant received compensation from APRIL 27, 1998 to DECEMBER 29, 2001; therefore respondent is entitled to credit for overpayment of temporary total disability compensation from APRIL 26, 1999 to DECEMBER 29, 2001, a period of 140 weeks and 0 days in the amount of $38,164.00 to be deducted from the latter end of tire award herein.* * * "
      "THAT as a result of said injury, claimant sustained 20 percent permanent partial disability to the BODY AS A WHOLE due to injury to the RIGHT SHOULDER, for which claimant is entitled to compensation for 91 weeks at $213.00 per week, or the total amount of $19,383.00 of which 91 weeks have accrued and shall be paid in a lump sum $19,383." * * * (Record, p. 27)

      . One member of the panel dissented, indicating there was no medical evidence to support TTD's termination on 26 April 1999.

      . Thomas v. Burggraf Restoration, 2001 OK CIV APP 110, 31 P.3d 402.

      . For the terms of § 22.2(b) see supra note 8.

      . (COCA opinion, p. 4) The record shows only one request by Yeatman for 52 weeks of additional TTD. This was dated 22 February 2001. Because respondent began TTD payments on 27 April 1998, claimant's request for additional TTD is likely not for the second 52 week period but is a request for a later, albeit unspecified, period.

      . COCA calculates the date that terminates the first fifty-two week period to coincide with the date of Yeatman's last appointment with her treating physician for her shoulder — 26 April 1999. See supra note 16 concerning the number of 52 week periods discussed.

      .Yeatman asserts that there is simply a lack of any medical evidence showing claimant's TTD period ended on 26 April 1999. The medical report submitted by the respondent’s evaluating physician, dated 6 June 2002, does not mention a period of TTD — only that Yeatman had reached maximum benefit from treatment and was unlikely to profit from additional therapy. Neither has the treating physician "released" claimant from her shoulder treatment. The medical report offered by Yeatman’s rating physician is the only evidence that addresses a TTD period. It indicates TTD runs from the date of injury to 20 February 2002. This is fatal to respondent’s cause, according to Yeatman, because for termination of TTD payments the burden of proof rests on it.

      . (COCA opinion, p. 5)

      . Because COCA determined this issue to be moot and it was not re-urged by claimant on certiorari, it was not preserved for our review. . An issue tendered and decided on appeal but not re-pressed by petition or counter-petition for certiorari stands abandoned. See the provisions of Rule 1.180(b), Supreme Court Rules, 12 O.S. 2001, Ch. 15, app.1. Hough v. Leonard, 1993 OK 112 ¶¶ 15-17, 867 P.2d 438, 445-46.

      . For a complete explanation of claimant’s evi-dentiary argument, see supra note 18.

      . The text of § 1.1B provides:
      * ⅜ *B. The burden of proof, by a preponderance of the evidence, shall be on the party requesting the benefits or relief pursuant to the provisions of the Workers’ Compensation Act unless otherwise specifically provided for by law.”

      . Claimant does not refer to a particular subsection of Rule 15. The text of subsection C provides:
      " * * * In all other events, ... temporary compensation may be terminated only as follows: 1. The employer shall file its Form 11, Motion to Terminate Temporary Compensation, with the court and mail a copy thereof to the employee. If the employer's request to terminate is based upon the written medical report of a Form 5 of a physician who indicates the employee has been released from the physician’s professional care and is able to return to work, a copy of that report of the Form 5 shall be mailed to opposing parties. The Form 11 shall contain a statement that the report of the Form 5 was mailed to opposing parties.
      2. If the employee objects, to the employer's termination of temporary compensation, the employee shall have fourteen (14) days from the date the employer’s Form 11 is filed ... to object to the termination of temporary compensation by the filing of a Form 9, Motion to Set for Trial. The claimant must file the Form 9 with the Court and mail a copy thereof to the employer or its insurance carrier. The employee shall state on the form 9 specific reasons for the objection to the termination of temporary compensation.* *
      For the terms of subsections A and B, see infra notes 45 and 47 respectively.

      . For the text of § 22.2(b) see supra note 8. Claimant also cites to extant jurisprudence for the position that temporary total disability does not continue indefinitely but must be proved during each period of disability. See infra section IVA of the text.

      . Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1122-23; Neil Acquisition L.L.C.v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103; Brown v. Nicholson, 1997 OK 32, 115, 935 P.2d 319, 321.

      . Arrow Tool, supra note 25, at ¶ 6 at 1122-23, Neil Acquisition, supra note 25 at ¶ 5 at 1103; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

      . Claimant’s certiorari brief may be said only to tangentially address the concept of an order’s reviewability when it argues employer has not met its burden of proof to terminate the WWC April 2001 order.

      . Amos v. Spiro Public Schools, 2004 OK 4, ¶ 7, 85 P.3d 813 (citing Special Indemnity Fund v. Reynolds, 1948 OK 14, ¶5, 188 P.2d 841, 842); National Gypsum Co. v. Brewster, 1969 OK 185, ¶ 22, 461 P.2d 593, 596; Reynolds v. Special Indemn. Fund, 1986 OK 64, ¶ 14, 725 P.2d 1265, 1270.

      . Amos, supra note 28; Davis v. B.F. Goodrich, 1992 OK 14, ¶ 3, 826 P.2d 587, 592-93 (Opala, J., concurring)(citing Reynolds, supra note 28 at ¶ 14, at 1270); Burdick v. Independent School Dist. No. 52 of Oklahoma City, 1985 OK 49, ¶ 10, 702 P.2d 48, 54; McCracken v. City of Lawton 1982 OK 63, ¶ 9, 648 P.2d 18, 21 n. 11.

      . Toney v. Parker Drilling Co., 1982 OK 17, 640 P.2d 1356. The teachings of Toney have survived a vast number of legislative changes. It is not critical to reviewability that the allowance or denial of an award put an end to the litigation. Any order, no matter how far removed from the ultimate termination of the claim, is reviewable if failure to appeal from it or to seek review of it will make the decision impervious to reconsideration. Toney, supra at ¶ 2 at 1357. See also Hermetics Switch, Inc., and CNA Insurance, v. Sales, 1982 OK 12, ¶ 4, 640 P.2d 963, 965.

      . Toney, supra note 30 at ¶ 2 at 1357. See also Foster’s Florist and Mega Life & Health Ins. v. Jackson, 2000 OK 9, ¶ 6, 997 P.2d 843, 847 (citing Hermetics, supra note 30 at ¶ 4, at 965).

      . Toney, supra note 30, at ¶ 4 at 1357; Foster's Florist, supra note 31, at ¶ 10 at 847.

      . 85 O.S. Supp.1997 § 3.6(A) and (C), infra; Ferguson v. Ferguson Motor Co., 1988 OK 137, ¶ 6, 766 P.2d 335, 336; Snyder v. Smith Welding & Fabrication, 1986 OK 35, ¶ 4, 746 P.2d 168, 169; Sears, Roebuck & Co. v. Heller, 1964 OK 132, ¶ 7, 401 P.2d 184, 186-87; Jones v. Troup-Moore & Hall Drilling Co., 1961 OK 32,¶ 11, 359 P.2d 577, 578; Special Indemnity Fund v. Lewis, 1948 OK 176, ¶ 5, 196 P.2d 684, 686; Kincannon v. American Oil & Refining Co., 1927 OK 221, ¶ 6, 258 P. 741, 742-43, 126 Okl. 84; Bedford-Carthage Stone Co. v. Industrial Commission, 1926 OK 718, ¶ 5, 249 P. 706, 707-08, 119 Okl. 231.
      The terms of 85 O.S. Supp.1997 § 3.6(A) and (C), the statute in effect at the time, provide: "A.* 11 *Either party feeling himself aggrieved by such order, decision or award shall, within ten (10) days, have the right to take an appeal from the order, decision or award of the Judge to the Workers' Compensation Court sitting en banc.

        " * * *C. The order, decision or award of the Court shall be final and conclusive upon all questions within its jurisdiction between the parties, unless, within twenty (20) days after a copy of such order, decision or award has been sent by the Administrator to the parties affected, an action is commenced in the Supreme Court of the state, to review such order, decision or award.

      . Supra note 33.

      . Supra note 33.

      . Supra note 33.

      . We assume that the order's confusing syntax — which appears to reserve for a future hearing the issue of overpaid TTD (Record, p. 19)— was intended to make the order subject to the employer's opportunity to establish termination of TTD, hence exempting from computation any overpayment of benefits.
      The record is devoid of a transcript of the hearing for continued TTD benefits. The facial terms of the April 2001 order hence prevail over anything that might serve to contradict its ruling.

      . Although the September 2002 order recognizes respondent's payment of TTD from 27 April 1998 to 29 December 2001, we must assume the April order was overlooked (or perhaps improvidently ignored) from the trial judge’s failure to refer to the terms of that award in her later order.

      . For the terms of § 1.1(B) see supra note 22. Our extant jurisprudence has long placed on the employer the burden of proof for TTD compensation's termination. See Tennison v. State Industrial Court, 1967 OK 153, ¶ 12, 429 P.2d 959, 961 (citing Van Ness Const. Co. v. Waltcher, 1939 OK 368, ¶ 3, 95 P.2d 858, 860, 185 Okl. 657).

      . Bodine v. L.A. King Corp., 1994 OK 22, ¶9, 869 P.2d 320, 322 (citing Bama Pie, Inc. v. Roberts, 1977 OK 100, ¶ 13, 565 P.2d 31, 34); Ross v. Ross, 1939 OK 202, ¶ 7, 89 P.2d 338, 340, 184 Okl. 626; Smith v. Zweifel, 1936 OK 174, ¶ 9, 54 P.2d 649, 651, 176 Okl. 113.

      . For the text of § 22.2(b) see supra note 8; Bodine, supra note 40 at ¶ 9 at 322; Bama Pie, supra note 40 at ¶ 13 at 34.

      . For the complete text of § 22.2(b), see supra note 8.

      . Bodine, supra note 40 at ¶ 9 at 322; Bama Pie, supra note 40 at ¶ 13 at 34; Ross, supra note 40 at ¶ 6 at 340; Zweifei, supra note 40 at ¶ 9 at 651.

      . Bodine, supra note 40 at ¶ 9 at 322; Bama Pie, supra note 40 at V 13 at 34; Ross, supra note 40 at ¶ 6 at 340; Zweifei, supra note 40 at ¶ 9 at 651. Respondent urges these cases support its contention that temporary compensation does not continue indefinitely, and it is the claimant who must bear the burden of proof for each disability period benefits are sought. This proposition, though true, is not applicable to today's controversy. In each of the cited cases either the TTD order or the court's decision not to terminate compensation was attacked within the prescribed period. That is not so here. Yeatman has not sought continued TTD benefits — beyond those awarded by the April order — for which she must bear the burden of proving disability. Because the April order stands beyond review, respondent must seek the order's pre-expiration termination to arrest TTD liability before the order’s expiration. The burden of proof hence rests on respondent.

      . The relevant portion of Rule 15(A)3 provides:
      "A. The employer may terminate temporary compensation whether begun voluntarily or by order, without a new order of the Court in the event:
      * * *3. The claimant files a permanent disability rating report; * * * "

      . Although Yeatman's motion does not include a PPD rating report, we assume that she was preparing for one in anticipation of her motion for a hearing on that issue.

      . Subsection B deals with termination based upon the report of a court-appointed independent medical examiner (IME). Although employer earlier requested the appointment of an IME, neither identification of an IME nor a requisite Form 5 was submitted with the motion to terminate. We hence do not view subsection B as applicable.

      . The text of subsection C provides:
      "In all other events, ... temporary compensation may be terminated only as follows:
      1. The employer shall file its Form 11, Motion to Terminate Temporary Compensation, with the Court and mail a copy thereof to the employee. If the employers' request to terminate is based upon the written medical report or a Form 5 of a physician who indicates the employee has been released from the physician's professional care and is able to return to work, a copy of that report or of the Form 5 shall be mailed to opposing parties. The Form 11 shall contain a statement that the report or Form 5 was mailed to opposing parties.

        2. If the employee objects to the employer’s termination of temporary compensation, the employee shall have fourteen (14) days from the date the employer’s Form 11 is filed with the court to object to the termination of temporary compensation by the filing of a Form 9, Motion to Set for Trial ... !l' * * "

      . For the text of subsection C see supra note 48.

      . Because the trial tribunal neither passed on claimant's objection to the sufficiency of the employer’s termination motion nor on the sufficiency of the rating physicians' reports, we refrain from expressing an opinion on these two matters. A reviewing court will not initially resolve- issues which the tribunal of first instance failed to determine. Jobe v. American Legion # 7, 2001 OK 75, ¶ 15, 32 P.3d 860, 865 (citing Salazar v. City of Okla. City, 1999 OK 20, ¶ 15, 976 P.2d 1056, 1062; Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶ 7, 890 P.2d 906, 913; Dyke v. St. Francis Hosp., Inc., 1993 OK 114, ¶ 11, 861 P.2d 295, 300 n. 13; Teel v. Teel, 1988 OK 151, ¶ 7, 766 P.2d 994, 999 n. 19; American Ins. Ass'n v. Indus. Com’n, 1987 OK 107, ¶¶ 7-8, 745 P.2d 737, 740 n. 15; Sandpiper North Apts. v. American Nat. Bank, 1984 OK 13, ¶¶ 28-29, 680 P.2d 983,993; Matter of Estate of Bartlett, 1984 OK 9, ¶ 13, 680 P.2d 369, 377; Davis v. Gwaltney, 1955 OK 362, ¶ 13, 291 P.2d 820, 824).
      Because today's ruling rectifies the procedural entanglements of the controversy, we need not address claimant’s reliance on the Thomas principles.


author:
WATT, Chief Justice: OPALA, V.C.J.,
      KAUGER, J.,

text:
    2004 OK 30
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Catheryn HUMMEL, Respondent.
    No. SCBD 4736.
    Supreme Court of Oklahoma.
    April 20, 2004.
   OPINION

WATT, Chief Justice:

¶ 1 The Complainant, Oklahoma Bar Association (the Bar), filed a complaint against Respondent, Catheryn Hummel, a licensed attorney in Oklahoma, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1-A., for violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch.l, App. 3-A. Counts I through Y represent grievances filed by five of Respondent’s former clients. Count VI is based on allegations raised by the Bar for her failure to respond to the grievance in Count V.

¶ 2 Respondent and the Bar stipulated as to the facts, the rules she violated in each count, and the conclusions of law. They also stipulated that her misconduct constituted grounds for professional discipline and recommended a one-year suspension of Respondent’s license and costs of the proceeding. They stipulated that she committed multiple violations of Rule 1.1, Rule 1.3, Rule 1.4, Rule 3.2; and one violation each of Rules 1.2(a) and 1.15(b), ORPC, and two violations of Rule 5.2, RGDP.

¶ 3 Respondent was diagnosed with clinical depression. She is currently undergoing counseling and is taking medication for the condition. She testified she knows the depression contributed to her ability to represent her clients, although she did not offer it as an excuse for her behavior. She testified she began winding down her practice in September, 2001, and has not practiced since Spring, 2002.

¶4 In its Trial Panel Report, the Trial Panel of the Professional Responsibility Tribunal (the PRT) accepted the parties’ Stipulations as to the Findings of Fact, Conclusions of Law and the recommendation for discipline, except for the correction of restitution in Count V, incorrectly noted as Count IV, from $3,000.00 to $1,500.00. In reaching its recommendation of a one-year suspension, the PRT considered the mitigating factors of her depression condition, her treatment of that condition and her professed intention of making restitution. Also considered, however, were Respondent’s two previous private reprimands from the Professional Responsibility Commission (PRC) and her current suspension for failure to complete Continuing Legal Education (CLE) requirements and the failure to pay her annual Bar dues.

COUNT I

¶ 5 Jennifer Jones hired Respondent to file and complete a motion to modify custody. Respondent filed the motion and represented Jones through some pre-trial proceedings. Respondent agreed to prepare a proposed settlement offer based on a psychologist’s report required by the court, a proposed agreed order and a proposed Joint Custody Plan to opposing counsel. The proposed plan was rejected, as was the settlement. However, Respondent failed to communicate with Jones. When she finally communicated by letter, she told Jones the pretrial and trial dates had not been set because Jones had failed to answer the interrogatories filed almost a year earlier by Jones’ former husband. However, Jones testified she had completed them and faxed them to Respondent’s office shortly after receiving them. Jones also stated she tried to get in touch with Respondent from October, 2001 to March, 2002, but that Respondent never returned her phone calls. Because she was never able to get a trial date set, Jones fired Respondent and hired another attorney. Respondent’s actions in Count I constitute violations of Rules 1.1, 1.3, 1.4, and 3.2, ORPC.

COUNT II

¶ 6 Respondent was hired by George Allen in 1995 and 1996 to complete an appeal from a criminal conviction. She timely filed the appeal which was denied. In September, 1998, Allen requested Respondent to send his file to his sister so that he could begin pursuing a writ of habeas corpus. She failed to send the file. Beginning in March, 1999, Allen asked Respondent numerous times to forward his files, but she failed to respond.

¶ 7 Allen filed a grievance with the Bar which requested Respondent on November 5, 1999, to return the file in two weeks, which she failed to do. On December 15, 1999, Allen advanced Respondent $50.00 for the costs of mailing his file, with her agreement to return the excess money. As of June 8, 2000, Allen had not received his file, and the Bar asked Respondent again to communicate with Allen. However, she failed to respond, and the matter was opened for formal investigation on August 15, 2000. On November 11, 2000, she responded, stating she had to search for many of the files in storage, but would ship the files with an inventory to Allen. The Bar received a proof of mailing which it forwarded to Allen on November 30, 2000. However, he indicated on December 8, 2000, that the file he received was incomplete and that he had not received his refund. The total cost to send the file was $6.60, and the refund to Allen remains outstanding. Respondent’s actions constitute violations of Rules 1.1, 1.3, 1.4 and 1.15(b), ORPC, and Rule 5.2, RGDP.

COUNT III

¶ 8 In October, 1999, Respondent was hired by Angela Gatz to file a motion to modify visitation with her minor son. Respondent filed the motion in November, 1999. Gatz’s former husband responded and thereafter filed a motion to modify visitation, a motion for judgment for medical expense arrearage and a motion to modify child support.

¶ 9 The pre-trial conference was held a few months later. Respondent failed to appear, although Gatz was present, and Respondent’s office was called. An assistant from her office appeared but was unable to conduct the pre-trial conference. Another pre-trial conference was held six months later. Four days before the next scheduled status conference was to be held, with the trial date already set, Respondent cancelled her appointment with Gatz. Respondent appeared at the trial on February 21, 2001, but Gatz was not present. The trial court entered an order, restricting Gatz’s visitation with her son, increasing her monthly child support obligation and ordering her to be responsible for her son’s medical bills. Additionally, the order indicated Respondent withdrew Gatz’s Motion for Enforcement of Visitation Rights.

¶ 10 Gatz did not give Respondent authority to make the agreements she made on her behalf at the trial, although Gatz’s former husband alleged that Respondent advised the court she was authorized to enter into a settlement of this matter. She failed to advise Gatz of the trial and the orders. When Gatz’s son mentioned the terms of the new visitation order, Gatz called Respondent to ask about it. When Gatz finally reached Respondent after many unsuccessful attempts, Respondent denied that an order had been entered or that the trial had been held. She referred to it as a “pre-trial conference” rather than a trial, although Gatz indicated they discussed changes in her responsibility for paying child support, medical bills and insurance costs. Respondent failed to advise Gatz that a motion for attorney fees had been filed against her, and further failed to respond to it on Gatz’s behalf. A judgment was entered against her therefor in the amount of $3,323.75. Gatz terminated Respondent and hired new counsel who moved to vacate the judgment. The court denied the motion, Gatz paid the judgment, and a Release and Satisfaction of Judgment was filed. Respondent’s actions constitute violations of Rules 1.1, 1.2(a), 1.3, 1.4 and 3.2, ORPC.

¶ 11 In addition, the evidence supports a finding that Respondent misrepresented the facts to Gatz in violation of Rule 8.4(c), ORPC, although not charged in the complaint. “[A] stipulation by parties that a particular ethical violation occurred does not limit this Court’s analysis to those ethical standards recognized or cited by the parties.” State ex rel. Oklahoma Bar Association v. Bolusky, 2001 OK 26, 23 P.3d 268, n. 2 (citations omitted). The fact that the Bar did not specifically charge a violation of this rule is of no consequence. State ex rel. Oklahoma Bar Association v. Bedford, 1997 OK 83, 956 P.2d 148. If the Bar pleads sufficient facts to put the attorney on notice of the violations charged against him and allows him an opportunity to respond, this is sufficient. Id., citing State ex rel. Oklahoma Bar Association v. Johnston, 1993 OK 91, 863 P.2d 1136. Respondent told Gatz that a trial had not been held. As a result of the trial, however, judgments were entered by the court modifying visitation with her son and granting her husband’s motion for attorney fees. Rule 8.4 provides:

RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; _[Emphasis added.]

¶ 12 Only when Gatz’ son told her that her visitation had been changed did she become aware that some judicial action had been taken against her. Even when Gatz confronted Respondent to inquire, she was told something which was not true, i.e., that there had been only a pretrial conference. Additionally, she led the court to believe she was authorized to make agreements on Gatz’ behalf at the trial which ultimately led to a visitation order which was less favorable to her than the one in existence.

COUNT IV

¶ 13 Connie Wells hired Respondent to represent her in divorce proceedings which were filed by Wells’ husband. The Stipulations indicate Respondent had agreed to accept service for Wells. Respondent failed to answer the divorce petition after it was filed, and more than six months later, Wells filed a grievance with the Bar. It was opened for formal investigation on March 11, 2002. Almost three months later, Respondent filed an application in the district court to file an answer and counterclaim out of time on Wells’ behalf, claiming that “Plaintiff has never formally served Defendant with said Petition for Divorce.” The court granted the motion, granting an extension of 15 days until June 25, 2002. After the order was filed, Wells tried unsuccessfully to reach Respondent by telephone and in person at her office. Wells hired new counsel and requested her file from Respondent by certified mail, but she did not respond. A second certified letter was sent by Wells to Respondent on the day before the trial court’s deadline for filing the answer and counterclaim, but she still failed to respond. Wells’ new counsel filed an answer and counterclaim on the date they were due, June 25, 2002. Respondent never filed an answer to the divorce petition and never completed discovery. Respondent’s actions constitute violations of Rules 1.1,1.3,1.4 and 3.2, ORPC.

COUNT V

¶ 14 Cheri Brooks, now Thomas, hired Respondent to file a contempt citation against her former husband for child support arrear-age. Respondent prosecuted the contempt citation and successfully obtained $7,676.28 of unpaid child support for Thomas. She then asked Respondent to complete the adoption of Thomas’s child on behalf of her new husband. It was agreed that part of the funds received from the contempt proceeding would be used to pay Respondent’s fee for the adoption. She deposited the check into her trust account, retained $3,000.00 and wrote a check on her trust account for the remainder to Thomas. Respondent has failed to return Thomas’ phone calls, and to this date, she has neither filed the adoption nor returned the retained funds to Thomas. At the hearing, Respondent testified that part of the $3,000.00 she retained was to be applied to an outstanding fee owed by Thorn-as. The Trial Panel Report of the PRT reflects the restitution amount should be $1,500.00, rather than $3,000.00. Respondent’s actions constitute violations of Rules 1.1,1.3,1.4 and 3.2, ORPC.

COUNT VI

¶ 15 In Count VI, an alleged violation of Rule 5.2, RGDP, the Bar made two unsuccessful requests of Respondent to respond in writing to Thomas as to the circumstances in Count V. After speaking with Assistant General Counsel Nathan Lockhart, Respondent agreed to provide a response, indicating there was “nothing to the grievance”. However, she failed to respond until the Bar served her with a subpoena duces tecum, and took her deposition approximately two months after the grievance was filed. Respondent’s actions constitute violations of Rule 5.2, RGDP.

STANDARD OF REVIEW

¶ 16 We review the evidence de novo to determine if the allegations of misconduct are established by clear and convincing evidence. Bolusky, supra. Respondent’s depression has been diagnosed and is being treated with professional counseling and medication. We commend Respondent for understanding she needed help and obtaining this treatment. Although emotional or psychological disability may serve to reduce the actor’s ethical culpability, it does not immunize one from imposition of discipline that is needed to protect the public. There must be a sufficient causal connection between the respondent’s ethical lapses and the depression. See State ex rel. Oklahoma Bar Association v. Schraeder, 2002 OK 51, 51 P.3d 570 (causal connection was shown between ethical violations and condition of “occupational burnout”). Our responsibility in a bar disciplinary proceeding is not to punish but to inquire into the lawyer’s continued fitness with a view toward safeguarding the interest of the public, the courts and the legal profession. State ex rel. Okla. Bar Ass’n v. Adams, 1995 OK 17, ¶ 4, 895 P.2d 701, 704.

¶ 17 Stipulations by the parties are considered in our review of the evidence, although our review includes an examination of the facts, stipulated or not. Bolusky, 2001 OK 26, ¶ 8, 23 P.3d at 273, n. 2, citing State ex rel. Oklahoma Bar Association v. Landman, 1989 OK 162, 784 P.2d 1064. They serve as an evidentiary substitute, subject to approval of the Court. Schraeder, 2002 OK 51, ¶ 8, 51 P.3d at 574. Findings of fact and conclusions of law of the PRT are advisory, being neither binding nor persuasive. Bolusky, 2001 OK 26, ¶ 7, 23 P.3d at 272.

¶ 18 We have reviewed the evidence and find that the stipulations, findings of fact and conclusions of law are supported by the record. Additionally, we find that Respondent’s depression was causally connected to her unethical conduct, beginning in most cases with neglect of a matter, which in turn led to more neglect. She stated, “[I] think what I did is I let my — I let my shame of the situation get in the way of my responsibility or my accountability. It was sort of like a circular thing.” She acknowledged the negative impact of the depression on herself and everyone around her, although she was not cognizant of that at first. She stated she feels a great sense of shame, guilt and remorse in letting down her clients. She will continue her treatment, not because of the complaint filed in this case, but for herself. Respondent’s psychologist also believes her condition will continue to improve, stating in a letter admitted as Respondent’s Exhibit 1, “With Ms. Hummel now actively engaged in therapy, her prognosis is good. I have no doubt that she will return to her previous high level of functioning with minimal interference from depressive symptoms. She has (by interview with family and peers) been able to function at a superior level without interference from her mood disorder.... I professionally believe, without reservation, that Ms. Hummel will be able to return to the legal profession (without impairment) in full capacity if she so desires.”

DISCIPLINE

¶ 19 After reviewing the record, including the transcript and exhibits, the Stipulations, and the Trial Panel Report, we find that Respondent violated Rules 1.1, 1.2(a), 1.3, 1.4, 1.15(b), 3.2 and 8.4(c), ORPC, and Rule 5.2, RGDP.

¶ 20 This Court has imposed discipline on lawyers for neglecting their clients’ matters, ranging from public censure to two years’ suspension. See State ex rel. Oklahoma Bar Association v. Benefield, 2002 OK 37, 51 P.3d 1198. In the present case, Respondent’s neglect of her client’s legal matters, pursuant to Rules 1.3 and 1.4, ORPC, was shown in Counts I through V of the Bar’s Complaint.

¶ 21 This Court has held that appropriate punishment for the neglect of a client’s ease, without affirmative acts of misconduct, is public censure. See State ex rel. Oklahoma Bar Association v. Brewer, 1999 OK 101, 998 P.2d 605; State ex rel. Oklahoma Bar Association v. Braswell, 1983 OK 63, 663 P.2d 1228. However, when neglect is combined with the aggravating elements noted in State ex rel. Oklahoma Bar Association v. Denney, 1980 OK 143, 617 P.2d 1351 and State ex rel. Oklahoma Bar Association v. Robertson, 1980 OK 176, 620 P.2d 382, we have ordered suspension. See Braswell, 663 P.2d 1228, 1232, which distinguished Denney and Robertson and imposed discipline only for neglect:

[TJhis case lacks the aggravating elements found present in the others. There is here no evidence that Braswell ever misrepresented anything, that he failed to return the client’s calls or that after the matter had been brought to his attention he neglected to check on its status. The record is devoid of any affirmative acts of misconduct. It reveals neither hesitancy to disclose the true facts to the client nor falsehood uttered in giving misleading or incorrect information' about the status of the claim in the lawyer’s charge. [Emphasis in original.]

¶ 22 In the present case, it is undisputed that Respondent failed to return her clients’ calls. In Count I, the Jones grievance, she neglected to get a trial date set on the motion to modify custody. Instead, Respondent told Jones she was waiting for Jones’ answers to interrogatories. She neglected to return her phone calls or to complete the work for which she was hired. In Count II, Allen waited for Respondent to send his file in a criminal matter for more than one year, after advancing $50.00 to Respondent for the costs of doing so. In Count III, Respondent failed to disclose the true facts to Gatz about the entry of orders for child support, visitation and attorney fees, even misrepresenting the fact that there had not been a trial in the case. In Count IV, Respondent obtained an extension of the time to file an answer in Wells’ divorce proceedings. When Wells could not reach Respondent by phone, she hired new counsel and attempted to obtain her file. After two certified letters from Wells requesting her file went unanswered, Wells’ new counsel filed the answer and counter claim on the date they were due.

¶ 23 A recurrent theme among the grievances in this case is Respondent’s failure to communicate with her clients to keep them informed of the status of their cases. Respondent’s neglect also led to her clients’ harm. Respondent entered into settlement agreements on behalf of Gatz in Count III for which she was not given authority. This violates Rule 1.2(a), ORPC. This led to the entry of judgment which was detrimental to Gatz because it increased her support obligations and restricted her visitation. Then, when asked about it, Respondent misrepresented the facts to her, violating Rule 8.4(c), ORPC. Moreover, Respondent failed to respond to a motion for attorney fees, which led to a default judgment against Gatz for more than $3,000.00, showing a lack of professional competence (Rule 1.1, ORPC) and diligence (Rule 1.3, ORPC).

¶ 24 Neglect also led to Respondent’s violation of Rule 1.15(b), ORPC, in Count II, the Allen Grievance. After repeated requests for his file, Allen agreed to advance $50.00 to Respondent for her expenses in sending the file. Respondent agreed to return the excess money to Allen. Although the costs were only $6.60, and the remaining funds were kept in her trust account, Respondent has never returned the excess money.

¶ 25 Respondent also' violated Rule 1.15(b) with regard to the Thomas grievance in Count V. She agreed to file an adoption proceeding and was paid, out of a child support award in Thomas’s favor, the amount of $3,000.00. She never filed the adoption proceeding and has never returned the retainer. She claimed part of the retainer, approximately $1,500.00, was to be applied to previous attorney fees incurred by Thomas. Although Respondent never produced evidence to substantiate that claim, she testified that she had drafted and reviewed paperwork and had made telephone calls on Thomas’ behalf. The Bar notes that Respondent was paid “at least One Thousand, Five Hundred Dollars ($1,500.00)”, which is in accord with the stipulation accepted by the PRT in its Trial Panel Report.

IMPOSITION OF PUNISHMENT

¶26 While we find that a public censure would not be sufficient punishment for the degree of neglect found in this case, neither do we find that Respondent’s conduct warrants a punishment of two years’ suspension. See Benefield, supra. Additionally, we find no grounds to warrant disbarment, although suspension of two years and one day was ordered for multiple violations of Rules 1.1, 1.3, 1.4 and 3.2, ORPC, and Rule 5.2, RGDP in State ex rel. Oklahoma Bar Association v. Minter, 2001 OK 69, 37 P.3d 763. However, we found Minter lacked fitness to practice law and had repeatedly shown contempt for the Bar and the Court by his refusal to respond to disciplinary inquiries. In the instant case, however, there is evidence of Respondent’s remorse and her wish to cooperate with the Bar, as well as to continue treating her depression condition. Moreover, her condition has been shown as a contributing factor to the neglect she showed in her clients’ representation and in her reluctance to answer the Bar complaint. Therefore, we accept the PRT’s recommendation that Respondent’s license to practice law be suspended for one year. A one-year suspension was imposed in State ex rel. Oklahoma Bar Association v. Rennie, 1997 OK 108, 945 P.2d 494, despite the fact he filed a false response to the bar complaint, misrepresented facts to a client about summary judgment and told his client that opposing counsel had “bought off’ the judge. He corrected the problems and made restitution. This Court gave great consideration to the fact that several members of the Judiciary and the local Bar testified on his behalf as to his character and honor, although recognizing the seriousness of his conduct. He also showed remorse and took action to ensure the same mistakes would not happen again. We think this is the correct approach to take in the instant case.

ENHANCEMENT

¶ 27 Respondent was privately reprimanded by the PRC in two prior Bar matters. In OBAD # 964, she neglected to answer within twenty days after the service of a grievance from the Bar, violating Rule 5.2, RGDP. In OBAD # 1378, she was reprimanded for neglecting a client’s case and for unprofessional conduct. It was stipulated that Respondent failed to respond to a motion for summary judgment resulting in a decision against her client and that she used loud and profane language in an argument with her client.

MITIGATION

28 Respondent stated her depression affected her legal practice, but that she did not offer it as an excuse for neglecting her clients. Apparently, the neglect of one matter led to another, which had a circular effect. She testified she will continue to receive treatment in the form of therapy and medication for as long as it takes. She expressed remorse for her actions and for the difficulties her clients endured because of her conduct.

CONCLUSION

¶ 29 Respondent’s license to practice law is suspended for one year from the date this opinion becomes final. The Bar filed an application to assess the costs of this proceeding in the amount of $1,039.82 against Respondent. The application is granted, and Respondent is ordered to pay this amount within thirty days of the date this opinion becomes final. Respondent is also ordered to pay the $43.40 owed to Mr. Allen, and $1,500.00, representing the remainder of the $3,000.00 retainer, to Mrs. Thomas, in the same time period, if she has not already done so.

WATT, C.J., LAVENDER, BOUDREAU, WINCHESTER, EDMONDSON, JJ., concur.

OPALA, V.C.J.,

with whom HODGES and HARGRAVE, JJ., Join,

Dissenting in Part:

I would hold today that upon passage of the declared suspension period respondent not become eligible for license reinstatement until, following a PRT-condueted inquiry, the tribunal should report (and recommend) that this court find her free of present impairments and once again fit to practice law.

KAUGER, J., dissents.

KAUGER, J.,

dissenting.

¶ 1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent with a series of counts of misconduct — the majority of which have a central theme of neglect and a failure to respond to inquiries both of clients and of the Bar Association in the disciplinary process. I agree that the respondent should be suspended from the practice of law. Nevertheless, because a careful review of the evidence reveals that the attorney’s misconduct arose as a result of a severe depressive condition, I would treat the matter as a Rule 10 proceeding, suspending the attorney from the practice of law until further order of the Court and imposing costs of the proceeding. Therefore, I dissent.

¶ 2 NEGLECT BEING THE GRAVAMEN OF EACH OF THE FIVE DISCIPLINARY COUNTS COUPLED WITH EVIDENCE OF THE ATTORNEY’S INCAPACITY WARRANTS TREATMENT OF THE CAUSE AS A RULE 10 PROCEEDING, SUSPENSION UNTIL FURTHER ORDER OF THE COURT, AND THE IMPOSITION OF COSTS.

¶ 3 In disciplinary matters, this Court possesses exclusive original jurisdiction. We are not bound by agreed findings, conclusions of law or recommendations for discipline. Rather, the ultimate responsibility for imposition of professional discipline is ours alone. The Court’s review is de novo in considering the record presented as well as the recommendations for discipline. Before we may impose discipline upon an attorney, the charges must be established by clear and convincing evidence.

¶ 4 Although there is evidence of misrepresentation and the failure to timely return client funds, the gravamen of each of the five disciplinary counts involves the attorney’s neglect and her failure to respond to clients’ and to the Bar Association’s inquiries. The Bar Association recognized at the hearing before the trial panel that the attorney’s problems were linked to her bouts with depression. The attorney testified that she had been suffering from depression in excess of ten years before the subject complaints were filed and that, because of her condition, she had begun to wind down her legal practice. The attorney finally sought professional assistance in September of 2001, realizing that she was suffering from the most severe and lengthy episode of depression she had experienced. Although the attorney did not impose her depression as a defense to the disciplinary action, she recognized that it had a major impact on her actions. At times, the attorney was so overwhelmed that she felt as though it was impossible for her to act. The licensed psychologist treating the attorney specifically felt that the attorney’s handling of her practice and of her response to the Bar Association was directly related to a major depression-recurrent condition.

¶ 5 In Rule 10 proceedings, the main objective is to minimize the potential risk to the public from a practitioner’s incapacity. The focus is not exclusively on the past but rather on the attorney’s present condition and its future consequences. Subsections (a) and (b) of Rule 10.1, Rules Governing Disciplinary Proceedings, define “personally incapable of practicing law” as including mental or physical illness, or a pattern of repeated neglect of legal matters. If an attorney is determined to be personally incapable of practicing law, the attorney shall be formally suspended from the practice of law until further order of the Court.

¶ 6 It is undisputed by the majority, by the Bar Association, and by the trial panel that the attorney’s performance was affected by her depressive condition. If the facts here do not warrant the attorney’s suspension on grounds that she is personally incapable of practicing law, then I cannot fathom a situation when a person should be suspended from the practice of law as mentally or physically incapable of its practice. Neglect being the gravamen of each of the five disciplinary counts coupled with evidence of the attorney’s incapacity warrants treatment of the cause as a Rule 10 proceeding, suspension until further order of the Court and the imposition of costs.

CONCLUSION

¶ 7 The nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law is solely vested in this Court. Every lawyer is presented as a person worthy of competence and honesty in the performance of professional activities. It is our difficult duty to withdraw the license to practice law if necessary to protect the interest of the public, the legal profession and this tribunal. Any other approach would rightly confuse or equate a lawyer’s state franchise with a license to cheat the public.

¶ 8 I would convert this matter to a Rule 10 proceeding, suspend the attorney until she can demonstrate her ability to practice to the Court; and impose costs. The majority’s failure to do so, in a situation where it recognizes that the facts warrant a finding of personal incapacity, raises the question of whether Rule 10 proceedings are ever appropriate or will be employed.

      . Rule 1.1. Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

      . Rule 1.3. Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.

      .Rule 1.4. Communication, (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

      . Rule 3.2. Expediting Litigation. A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

      . Rule 1.2. Scope of Representation.
      (a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d) and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

      . Rule 1.15(b). Safekeeping Property.
      (b). Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

      . Rule 5.2. Investigations. [Tjhe failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further- time as may be granted by the General Counsel, shall be grounds for discipline. The General Counsel shall make such further investigation of the grievance and response as the General Counsel may deem appropriate before talcing any action.

      . The PRT found Respondent received a private reprimand in 1990 from the Professional Responsibility Commission (PRC) for the failure to respond within 20 days to two letters from the Bar asking for a response to an informal grievance. The Bar subpoenaed Respondent and took her deposition. She also received a private reprimand from the PRC in a different matter involving neglect and unprofessional conduct. She failed to respond to a motion for summary judgment, resulting in a decision against her client. The PRC also found Respondent used loud and profane language in an argument with her client.

      . This allegation was made in his Motion to Settle Journal Entry.

      . Count IV of the original complaint contained allegations by the Bar against Respondent on behalf of Hastings. However, the Bar has advised this Court it does not intend to offer evidence as to the allegations regarding Hastings and has requested dismissal of the allegations. While the Bar may request a dismissal it does not possess the power to dismiss, in part, a complaint filed in this Court. See State ex rel. Oklahoma Bar Association v. Bolusky, 2001 OK 26, ¶ 16, 23 P.3d 268, 274-75. The original count IV as to Hastings is accordingly dismissed.

      . Rule 10.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A provides in pertinent part:
      "The term 'personally incapable of practicing law' shall include:
      (a) Suffering from mental or physical illness of such character as to render the person afflicted incapable of managing himself, his affairs or the affairs of others with the integrity and competence requisite for the proper practice of law;
      (b) Active misfeasance or repeated neglect of duty in respect to the affairs of a client, whether in matters pending before a tribunal or in other matters constituting the practice of law

      . Rule 10.11, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . Rule 1.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Mayes, 2003 OK 23, ¶ 17, 66 P.3d 398; State ex rel. Oklahoma Bar Ass'n v. Holden, 1995 OK 25, ¶ 1, 895 P.2d 707; State ex rel. Oklahoma Bar Ass'n v. McMillian, 1989 OK 16, ¶ 5, 770 P.2d 892.

      . State ex rel. Oklahoma Bar Ass'n v. Mayes, see note 3, supra; State ex rel. Oklahoma Bar Ass’n v. Erickson, 2001 OK 66, ¶ 14, 29 P.3d 550; State ex rel. Oklahoma Bar Ass’n v. Israel, 2001 OK 42, ¶ 13, 25 P.3d 909.

      . State ex rel. Oklahoma Bar Ass’n v. Israel, see note 4, supra; State ex rel. Oklahoma Bar Ass'n v. Bolusky, 2001 OK 26, ¶ 14, 23 P.3d 268; State ex rel. Oklahoma Bar Ass’n v. Dershem, 2001 OK 7, ¶ 12, 21 P.3d 639.

      . Rule 6.12, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass'n v. Wolfe, 1997 OK 47, ¶ 1, 937 P.2d 988; State ex rel. Oklahoma Bar Ass’n v. Holden, see note 3, supra.

      . Transcript of proceedings, June 27, 2003, opening statement of counsel for the Bar Association providing in pertinent part at p. 8:
      "... Along the way, Cathy — I think I can say this with her permission — encountered some difficulties with depression and it cause, at least, in part — probably not wholly but, at least, in part, the problems that have us before you today....”

      . Transcript of proceedings, June 27, 2003, attorney testifying in pertinent part at pp. 17 — 18:
      "... Q What led you, in September of 2001, to start winding down your practice?
      A I had — I think, over the years, actually, probably for a period of at least ten years had been experiencing bouts of what I now believe to have been clinical depression....”

      . It is worth noting that the grievances filed date between 2000 and 2002. Transcript of proceedings, June 27, 2003, attorney testifying in pertinent part:
      at pp. 18-19: "... I just — I couldn’t decide at that time because I had been experiencing what was probably the most severe episode of depression that I'd had and the lengthiest. And at that time, I determined — I couldn't decide whether life was too short or life was too long to continue doing it. I didn’t feel like that I could — that I could handle it. I wasn't handling it the way that I knew I could or should and so I just decided' — at that point, I did ask a professional colleague for a referral to a therapist and then I began attending and I do still. I am still in therapy on a weeldy basis
      at pp. 37: "... It — it did have a great impact. The periods of time when I was not in a depressive episode, I did very well as a practitioner in terms of being successful with whether it was appellate work or litigation. But- — and it — and it did negatively impact, but it's an explanation and that's all it is. And I have not sought treatment for it — I don't continue to seek treatment for it because of anything related to this complaint, these proceedings or anything of that nature. This is for me...."

      . Transcript of proceedings, June 27, 2003, attorney testifying in pertinent part at pp. 19-20:
      "... Q Can you see now, and where we are today, that your depression — what your depression had to do with the individual cases that we have before us?
      A Yes. I don't think that — not for a minute do I think — I don't think my depression, my illness is an excuse, is excusable. It is an explanation and it certainly — it heavily impacted, but I would never think to say that, in total, that it was all to blame. You know, I certainly have had, I think, complicity in it, even if it was a failure to seek treatment or a failure to know when to cut and run, you know, from a case. But yes, it impacted it.... ”

      . Transcript of proceedings, June 27, 2003, attorney testifying in pertinent part:
      at pp. 19-20: "... But yet, it just — it just became — now, it wasn't realistically impossible but it felt impossible to do one more thing, even something as simple as filing an answer in a counterclaim when you can't even find the other party ... ”;
      at p. 40: "... And there's an art to knowing when to stay and when to go, and I overstayed, you know, my welcome. I should have — when I felt an inability to do the most minimal thing, I mean, I needed to back — I needed to back out at that time and I didn’t....”

      . Respondent's exhibit 1 is a letter dated June 24, 2003, from Maribeth Spanier, Ph.D., directed to the Bar Association. It provides in pertinent part:
      "... Ms. Hummel initially sought treatment in August of 2001. She presented with a long history of Major Depression-Recurrent as evidenced by erratic sleep patterns, appetite disturbance, poor concentration and memory, volatile moods, apathy, amotivation, poor stress tolerance, hopelessness, and avoidance of stressful situation and people. By history, Ms. Hummel has experienced episodes of such depression for several years without treatment. Upon further evaluation, her report of her performance in her professional and personal life confirmed a recurrent pattern to her Depression.
      Ms. Hummel’s Depression has significantly impaired her ability to respond to the Bar Association's complaints against her. Her response has been consistent with that of a person suffering Depression — overwhelmed, avoidant, and self-defeating. These are the same responses she had been demonstrating in her other professional and person endeavors....”

      . State ex rel. Oklahoma Bar Ass’n v. Adams, 1995 OK 17, ¶¶ 12-13, 895 P.2d 701; State ex rel. Oklahoma Bar Ass'n v. Donnelly, 1992 OK 164, ¶ 15, 848 P.2d 543.

      . Rule 10.1, Rules Governing Disciplinary Proceedings, see note 1, supra.

      . Id.

      . See, opening statement of counsel for the Bar Association, note 6, supra. The majority opinion provides in pertinent part:
      in ¶ 18: "... We have reviewed the evidence and find that the stipulations, findings of fact and conclusions of law are supported by the record. Additionally, we find that Respondent’s depression was causally connected to her unethical conduct, beginning in most cases with neglect of a matter, which in turn led to more neglect....";
      in ¶ 26: "... Moreover, her condition has been shown as a contributing factor to the neglect she showed in her clients' representation and in her reluctance to answer the Bar complaint....”
      The trial panel report, filed on July 28, 2003, provides in pertinent part:
      at p. 7: "... Based on the testimony of the Respondent and Respondent's Exhibit No. 1 the Trial Panel finds that the Respondent has had a history of major depression which has impaired her ability to respond to the bar complaints against her. She has been in treatment with a clinical psychologist and continues treatment at this time...."
      at p. 4: "... The Respondent suffers from major depression-recurrent, a medical condition, and is taking steps to treat that condition. ...”

      . Rule 10.1, Rules Governing Disciplinary Proceedings, see note 1, supra.

      . Rule 10.11, Rules Governing Disciplinary Proceedings, see note 2, supra.

      . State ex rel. Oklahoma Bar Ass’n v. Holden, see note 3, supra; State ex rel. Oklahoma Bar Ass'n v. Farrant, 1994 OK 13, ¶ 8, 867 P.2d 1279; Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, ¶ 4, 624 P.2d 1049.

      . State ex rel. Oklahoma Bar Ass’n v. Raskin, 1982 OK 39, ¶ 22, 642 P.2d 262.

      . State ex rel. Oklahoma Bar Ass’n v. Miskovsky, 1992 OK 40, ¶ 15, 832 P.2d 814.

      . Rule 10.11, Rules Governing Disciplinary Proceedings, see note 2, supra.

      . Id.