Ayisi v. Sequel Youth & Family Servs., LLC

• Decision Date: 28 February 2019
• Docket Number: Case No. 117,348
• Citation: 437 P.3d 216
• Parties: Marcella AYISI, Petitioner, v. SEQUEL YOUTH & FAMILY SERVICES, LLC, Travelers Indemnity Co., and the Workers' Compensation Commission, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

437 P.3d 216

Marcella AYISI, Petitioner,

v.SEQUEL YOUTH & FAMILY SERVICES, LLC, Travelers Indemnity Co., and the Workers' Compensation Commission, Respondents.

Case No. 117,348

Court of Civil Appeals of Oklahoma, Division No. 4.

FILED: February 28, 2019

Mandate Issued: March 27, 2019

Bob Burke, Oklahoma City, Oklahoma and Jeffrey M. Cooper, Oklahoma City, Oklahoma, for Petitioner

Mia C. Rops, AYIK & ASSOCIATES, St. Paul, Minnesota, for Respondents

OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶ 1 This is the second appeal in this case.The first appeal -- Sequel Youth & Family Services LLC v. Ayisi , 2018 OK CIV APP 7, 412 P.3d 107 -- arose from an order of the Workers' Compensation Commission affirming the order of an Administrative Law Judge (ALJ) who found Marcella Ayisi(Claimant) sustained compensable injuries to both of her knees arising out of the course and scope of her employment.As explained at greater length in the prior appeal, Claimant fell on August 26, 2015, while working as a residential counselor for Sequel Youth & Family Services, LLC.She"land[ed] directly on both knees."2018 OK CIV APP 7, ¶ 2, 412 P.3d 107.The medical evidence generated after the accident revealed that the primary injury or condition in Claimant's knees is osteoarthritis.

¶ 2 As explained in the prior appeal, the pertinent statutory provisions are found in 85A O.S. Supp. 2014 § 2, and provide as follows:

9. a. "Compensable injury" means damage or harm to the physical structure of the body ... caused solely as the result of either an accident, cumulative trauma or occupational disease arising out of the course and scope of employment. ...

....

b. "Compensable injury" does not include:

...

(5) any strain, degeneration, damage or harm to, or disease or condition of, the eye or musculoskeletal structure or other body part resulting from the natural results of aging, osteoarthritis, arthritis, or degenerative process including, but not limited to, degenerative joint disease, degenerative disc disease, degenerative spondylosis /spondylolisthesis and spinal stenosis, or

(6) any preexisting condition except when the treating physician clearly confirms an identifiable and significant aggravation incurred in the course and scope of employment.

¶ 3 Regarding the exclusion of conditions "resulting from the natural results of aging, osteoarthritis, arthritis, or degenerative process," set forth in § 2(9)(b)(5), we explained that under both the Workers' Compensation Code and the Workers' Compensation Act such conditions were also excluded except where "the employment is a major cause of the deterioration or degeneration and is supported by objective medical evidence[.]"Ayisi , ¶ 14(citing85 O.S. Supp. 2010 § 3(13)(d);85 O.S. 2011 § 308(10)(c) ).We explained, among other things, that "legislative silence is rarely to be taken as clear legislative intent to abrogate an established construction,"Ayisi , ¶ 14, and we explained that an alternative construction requiring that such injuries, in effect, be "caused solely" by the employment in order to be compensable would "be untenable in light of the statute as a whole,"id.¶ 21.We concluded, in pertinent part, that Claimant's osteoarthritis -- which we explained was defined as a condition caused by the damage or breakdown of the protective joint cartilage between bones -- is therefore compensable under § 2(9)(b)(5) if her employment is found to be the major cause of her osteoarthritis.Ayisi , ¶ 14 n.2.We stated in the prior appeal that "it is the legislative intent that, in this case, Claimant's osteoarthritis, if resulting from the natural results of aging, is not compensable unless it is found that the employment is the major cause of the deterioration or degeneration and such a finding is supported by objective medical evidence."Id.¶ 27.We stated that this test "applies to both of Claimant's knees."Id.Following the issuance of the first appeal, neither party filed a petition for rehearing or a petition for certiorari.Mandate issued.

¶ 4 On remand, the ALJ determined Claimant's employment was not the major cause of her osteoarthritis in her knees and, therefore, denied compensation.Claimant sought review by the Commission which affirmed the ALJ's order.The issue arose whether Claimant should at least be found to have sustained a compensable injury to her right knee as a result of an aggravation of a preexisting condition under § 2(9)(b)(6).As articulated by the Commission, however, this Court, in the prior appeal, "expressly held that Claimant's osteoarthritis is compensable only if her employment is the major cause of the degeneration in her knees.Because Claimant failed to seek relief from that decision, [that] determination is now the settled law of the case and cannot be relitigated."¹

¶ 5We take this opportunity to clarify that § 2(9)(b)(6) is applicable to cases involving preexisting conditions where "the treating physician clearly confirms an identifiable and significant aggravation [of that preexisting condition] incurred in the course and scope of employment."²Any implication to the contrary in the prior appeal regarding the effect of § 2(9)(b)(6) is in error.

¶ 6 With regard to Claimant's left knee, however, we explained in the prior appeal that the ALJ concluded there was no "preexisting condition as defined in the AWCA[.]"Ayisi , ¶ 15.³Thus, we concluded, at least impliedly, that the lower court erred in awarding compensation for the left knee under § 2(9)(b)(6).We further concluded that Claimant could still receive compensation for her left knee under § 2(9)(b)(5) if the major cause of her osteoarthritic condition in her left knee was her employment.Because the trial court's determination on remand that the major cause of Claimant's osteoarthritis is not work-related is supported by substantial evidence, we conclude compensation for Claimant's left knee was appropriately denied on remand.SeeGillispie v. Estes Exp. Lines, Inc. , 2015 OK CIV APP 93, ¶ 15, 361 P.3d 543(On fact questions, this Court will review the record to determine if there is substantial evidence to support the decision.).

¶ 7The trial court also determined on remand that the major cause of Claimant's condition in her right knee is not work-related, and this determination is also supported by substantial evidence.However, the ALJ previously determined that, regarding the right knee, Claimant suffered an aggravation of a preexisting condition.The finding that there was a preexisting condition in Claimant's right knee at the time of the accident is based on the fact that Claimant had an anthroscopic procedure performed on her right knee approximately sixteen years before the accident.Regardless of the distance in time between the accident and this procedure, however, the findings that Claimant had a "preexisting condition" in her right knee at the time of the accident, and that this is the condition for which treatment was provided, are supported by substantial evidence.⁴

Moreover, it is undisputed the treating physician confirmed an identifiable and significant aggravation occurred to that condition in the course and scope of Claimant's employment.Consequently, regarding Claimant's right knee, the ALJ appropriately found that, under § 2(9)(b)(6), Claimant sustained a compensable injury.⁵To the extent the prior appeal is at odds with this analysis, that portion of the prior appeal is overruled.Although Claimant failed to file a petition for rehearing or a petition for certiorari following this Court's issuance of the prior appeal, we conclude that a failure to reverse course would "result in a gross or manifest injustice."Acott , 2011 OK 56, ¶ 11, 260 P.3d 1271.⁶

¶ 8 For these reasons, we sustain that portion of the Commission's order finding Claimant did not suffer a compensable left knee injury, but we vacate that portion of the Commission's order finding Claimant did not sustain a compensable injury to her right knee.We remand this case to the ALJ for further proceedings consistent with this Opinion.⁷

¶ 9SUSTAINED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS .

WISEMAN, V.C.J., and THORNBRUGH, J. (sitting by designation), concur.

1The Oklahoma Supreme Court has explained:

The doctrine of the settled law of the case ... provides that issues which are litigated and settled on appeal, or which could have been settled in that appeal, may not be the subject of further litigation between the parties in that case and are deemed settled.It is a rule of judicial economy designed to prevent an appellate court from twice having to deal with the same issue.

Acott v. Newton & O'Connor , 2011 OK 56, ¶ 10, 260 P.3d 1271(internal quotation marks omitted)(citations omitted).The Acott Court explained there is an

exception to the rule when the prior decision is palpably erroneous and ... failure to reverse it will result in a gross or manifest injustice. ...Thus, under the settled law of the case doctrine, an issue may not be asserted on remand, or in a second or subsequent appeal, if the issue (1) was addressed in the first appeal, (2) could have been raised in the first appeal, or (3) the issue asserted was determined by implication in the first appeal.

Id.¶ 11(internal quotation marks omitted)(citations omitted).

2As quoted above, § 2(9)(b)(6) provides that the term "compensable injury" does not include "any preexisting condition except when the treating physician clearly confirms an identifiable and significant aggravation incurred in the course and scope of employment."(Emphasis added.)See alsoStiles v. Okla. Tax Comm'n , 1987 OK 85, ¶ 13, 752 P.2d 800("In Oklahoma[,] disability resulting from the aggravation of a pre-existing disease or condition is compensable."(footnote omitted) );ITT Continental Baking Co. v. Ware , 1980 OK 167, ¶ 8, 620 P.2d 1308("[I]t has long been recognized in this jurisdiction that aggravation of a pre-existing condition or disease is...