Oklahoma Gas & Elec. Co. v. Chronister

• Decision Date: 02 September 2004
• Docket Number: No. 100,016.,100,016.
• Citation: 114 P.3d 455,2005 OK CIV APP 32
• Parties: OKLAHOMA GAS & ELECTRIC CO., Petitioner, v. Christopher Charles CHRONISTER, The Workers' Compensation Court, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

114 P.3d 455

2005 OK CIV APP 32

OKLAHOMA GAS & ELECTRIC CO., Petitioner, v. Christopher Charles CHRONISTER, The Workers' Compensation Court, Respondents.

No. 100,016.

Court of Civil Appeals of Oklahoma, Division No. 1.

September 2, 2004.

Rehearing Denied January 11, 2005.

Certiorari Denied May 2, 2005.

Gary D. Long, Wheeler, Wheeler, Morgan, Faulkner, Long & Donaldson, Bethany, OK, for Petitioner.

Laura Beth Murphy, Murphy & Murphy, Oklahoma City, OK, for Respondent Christopher Charles Chronsiter.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

OPINION

ADAMS, Judge:

¶ 1 Oklahoma Gas & Electric Co. (Employer) seeks review of an order of a three-judge panel of the Workers' Compensation Court which modified and affirmed a trial judge's order. The order, as modified, awarded Claimant Christopher Chronister temporary total disability benefits and resolved other disputes between the parties concerning home health care reimbursement and medical apparatus. We vacate the portion of the order relating to home health care reimbursement because the present record contains no competent evidence to support the order. In all other material respects, we sustain the remainder of the order.¹

FACTS

¶ 2 Claimant, a lineman, suffered electrocution on June 5, 2002, and fell some 30 feet to the ground. He sustained injuries to his head, left leg, right leg, intestines, heart, right side ribs, thoracic spine, lumbar spine, bladder, bowel, spinal cord, and pulmonary system, with a psychological overlay, paralysis (paraplegia), and spasticity of the left arm, right arm, left hand and right hand. Claimant received extensive medical care and therapy at several facilities and had surgery on both his arms and hands and twice on his back.

¶ 3 Prior to May 27, 2003, Employer provided a rented handicap-equipped van (van) to Claimant for transportation for his many medical appointments. Claimant also used the van for other tasks and personal activities. During this same time period, Employer also provided home health care for 8 to 10 hours a day. Claimant went to Phoenix, Arizona for treatment at Neurostrength Institute on May 20, 2003, and returned to Oklahoma on June 27, 2003. Employer did not provide the van or home health care during this period.

¶ 4 After his return, rather than providing the van for Claimant's use, Employer hired Airport Express to transport Claimant to his doctor and physical therapy visits. Employer also provided home health care for four hours a day, as prescribed by Claimant's doctor. Claimant filed a request that total disability benefits (TTD) be continued and that Employer be ordered to provide the van and other medical apparatus in addition to reimbursing Claimant for his wife's services in providing home health care while Claimant was in Arizona.

¶ 5 The trial judge awarded Claimant TTD and reserved the issue of permanent disability. The trial judge also ordered Employer to provide reasonable and necessary medical care and treatment with Dr. A.J. Bisson. The trial judge ordered Employer to resume providing Claimant with the van. In addition, the trial judge found Employer owed Claimant for home health services from May 20, 2003, through June 27, 2003, and directed that Claimant receive home health services from June 27, 2003, forward "consistent with the recommendations of Dr. A.J. Bisson as expressed by way of deposition." The trial judge also found that the medical services provided by the Neurostrength Institute in Arizona were "reasonable."

¶ 6 Employer filed a notice of an en banc appeal. After what Employer characterizes as an ex parte communication between the trial judge and Claimant's counsel which occurred more than ten days and less than twenty days after the trial judge's order was filed, the trial judge filed a "nunc pro tunc" order which modified certain portions of its previous order and also directed Employer to provide Claimant with an FES bike. The bike issue was addressed during the trial but not in the trial judge's previous order.

¶ 7 After receiving a copy of the "nunc pro tunc" order and learning from Claimant's counsel that she had talked to the trial judge, Employer's counsel wrote a letter to the trial judge objecting to the issuance of the order. At a hearing thereafter, the trial judge and Claimant's counsel confirmed that more than ten days after the original order was filed, without notice to Employer, Claimant's counsel approached the trial judge with the original order and the court file and asked that the issue unaddressed by the original order be addressed.

¶ 8 At that hearing, the trial judge recalled that the file had been presented to her and the request made, but stated "that there was no discussions regarding the substantive matters. Who should win, who should lose, what evidence was offered, anything of substance that would affect the judgment of the Court. No additional evidence was offered to the Court" and concluded that "there has not been an ex parte communication regarding the substance of the matter, the issues before the court." The trial judge noted that Claimant's counsel should have advised that opposing counsel had not been consulted and apologized to Employer's counsel for failing to inquire. Claimant's counsel acknowledged she should have contacted Employer's counsel, and she apologized to the trial judge.

¶ 9 The trial judge left the "nunc pro tunc" order undisturbed, and Employer supplemented its en banc appeal to raise issues concerning this order, including the medical necessity of the FES bike. After making minor modifications to the trial judge's order, the three-judge panel affirmed the order, including the provisions added and altered by the "nunc pro tunc" order, specifically concluding that Employer's request to vacate that order should be denied. Employer then filed this review proceeding.

ANALYSIS

¶ 10 In these review proceedings, Employer urges that we vacate the three-judge panel's order, arguing error in the findings which may be described as centering on three main issues: (1) Employer's obligation to provide Claimant with the van, (2) the home health services and equipment required for his condition, and (3) the communications preceding entry of a nunc pro tunc order and an award of an FES bike in that order. As to the first two issues, the parties agree that Claimant is entitled to receive what is "medically necessary," but disagree about what treatments, items, and benefits fall into that classification. We address the three issues in turn.

The Van

¶ 11 Employer argues that requiring it to provide Claimant with the van is contrary to prevailing law, that provisions of the order finding Claimant does not have the financial means to purchase a vehicle are not supported by any competent evidence, and that the finding Claimant is not required to purchase a vehicle for modification is not an accurate statement of the law. Employer claims it has no duty to supply transportation that is for Claimant's personal needs unrelated to receiving medical treatment.

¶ 12 Employer states that it provided Claimant with the van after his discharge from the hospital because he had numerous appointments for intensive treatments with doctors and physical therapists and providing the van was the most practical and efficient option (as opposed to using a van service for each appointment) at that time. Since then, Employer states, Claimant's needs have changed, and though it will provide transportation for medical treatment, it is not required to make transportation available for personal needs and discretionary travel, citing Rule 19A, Workers' Compensation Court Rules, 85 O.S.2001, Ch. 4, App., which states:

Travel expenses incurred while receiving reasonable and necessary medical treatment, vocational evaluations, and vocational retraining shall be paid to the claimant as follows: Mileage and necessary lodging expenses are limited to the provisions of the State Travel Reimbursement Act, 74 O.S., Section 500.1 et seq. .... Travel expenses paid to the claimant shall include only expenses for travel from the residence of the claimant at the time of medical treatment, not to exceed 600 miles round trip. The employer shall not be liable for travel which is wholly within the limits of the city or town of the claimant's residence. Exceptions to this rule shall be at the discretion of the Court.

¶ 13 However, Employer fails to properly consider the effect of 85 O.S.2001 § 14(A)(1), which requires an employer to "promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary after the injury." The purpose of this obligation is provide care which will "reasonably and seasonably tend to relieve and cure the injured employee from the effects of the injury" and rehabilitate the employee so that he or she "may return to the ranks of productive labor with normal capacity when possible, and when impossible to restore normal capacity then to the highest degree attainable" in addition to temporary relief. Orrick Stone Company v. Jeffries, 1971 OK 116, ¶ 5, 488 P.2d 1243, 1245, quoting McMurtry Bros. v. Angelo, 1929 OK 480, ¶ 7, 281 P. 964, 965.

¶ 14 The record contains competent medical evidence that Claimant's independence enabled by the van would not only benefit Claimant's general lifestyle but was essential to his rehabilitation and treatment of the organic brain injury and accompanying psychological overlay. Although the panel's order may sweep too broadly to the extent it suggests that any paraplegic claimant would qualify for such assistance under § 14(A)(1), the conclusion that such assistance fulfills the purpose behind § 14(A)(1) for this Claimant is supported by the medical evidence in this record.

¶ 15 Phillips Petroleum Company v. Carter, 1995 OK CIV APP 138, 914 P.2d 677,...