Emery v. Central Oklahoma Health Care

Decision Date01 May 2007
Docket NumberNo. 102,286.,102,286.
PartiesSally EMERY, Petitioner, v. CENTRAL OKLAHOMA HEALTH CARE, Clarendon National Insurance Company, and the Workers' Compensation Court, Respondents.
CourtOklahoma Supreme Court

Certiorari to Court of Civil Appeals, Division 3.

¶ 0 Claimant, who was previously adjudicated permanently and totally disabled, presented competent evidence that she has sustained a change of condition for the worse and requires additional medical treatment. She is not, however, entitled to additional benefits for temporary total disability because there is no evidence or argument that her disability will ever be less than permanent and total. The Workers' Compensation Court, Honorable Kenton W. Fulton, correctly ordered Employer to pay for Claimant's additional medical treatment and denied Claimant's request for additional compensation at the higher rate for temporary total disability.


Walt Brune, Walt Brune, P.C., Ponca City, OK, and Fred L. Boettcher and K. Wayne Lee, Boettcher Law Office, Inc., Ponca City, OK, for Petitioner.

Gary G. Prochaska, Foshee & Yaffe, Oklahoma City, OK, for Respondents.


¶ 1 Claimant, Sally Emery, seeks certiorari review of an opinion of the Court of Civil Appeals which sustained an order of the Workers' Compensation Court denying her claim for additional temporary total disability benefits against Employer, Central Oklahoma Health Care. The Workers' Compensation Court found that Claimant had sustained a change of condition for the worse to her back and ordered Employer to provide additional medical treatment but denied further temporary total disability benefits. We hold that Claimant's status as permanently totally disabled allows for an award of additional treatment based upon proper evidence, but precludes a further award of benefits for temporary total disability.

¶ 2 Claimant sustained an injury to her lumbar back on October 16, 1997, while working as a nurse for Employer. The Workers' Compensation Court awarded her 20% permanent partial disability in May 1999. Claimant retired after the injury because of her health and began receiving social security disability benefits in 1999.1 Claimant then sustained a change of condition for the worse, for which Employer voluntarily paid temporary total disability and provided medical treatment. The court awarded Claimant an additional 12% permanent partial disability in September 2001.

¶ 3 Claimant filed a claim the next year against the Multiple Injury Trust Fund and was found to be permanently and totally disabled based on the combination of the 1997 injury and a prior injury. Claimant and the Fund later agreed to convert that benefit to a lump sum of $81,000. Their joint petition to that effect was approved by the court on April 8, 2004, and Claimant received three $27,000 payments on April 8, 2004, October 8, 2004, and April 8, 2005.

¶ 4 On November 1, 2004, Claimant filed a motion seeking additional medical benefits and temporary total disability benefits based on a change of condition for the worse. Claimant's expert stated that she was temporarily totally disabled and needed medical treatment in the form of epidural steroid injections, while Employer's expert concluded that she had not sustained a change of condition for the worse and needed only continuing medical maintenance. The court-appointed and treating physician, Michael J. Carl, M.D., determined that Claimant had suffered an aggravation of her condition and recommended epidural steroid injections to stabilize her condition. Dr. Carl did not conclude that Claimant was temporarily totally disabled but, instead, specified permanent work restrictions almost identical to those he had previously imposed.

¶ 5 The trial court determined that Claimant had sustained a change of condition for the worse and ordered Employer to provide her with additional medical treatment including the recommended epidural steroid injections. The court also required Employer to replace Claimant's lift chair. The court denied, however, Claimant's request for temporary total disability benefits. That decision was affirmed by the Workers' Compensation Court sitting en banc. See Okla. Stat. tit. 85, § 3.6(A) (2001).

¶ 6 Claimant appealed. The Court of Civil Appeals first issued an opinion vacating the Workers' Compensation Court's order and remanding for the entry of an order commencing temporary total disability payments. On Employer's petition for rehearing, however, the Court of Civil Appeals withdrew that opinion and issued a new opinion sustaining the Workers' Compensation Court's order. Claimant filed a petition for certiorari which we have previously granted.


¶ 7 We are bound by stare decisis to apply the any-competent evidence standard of review to the factual determinations of the Workers' Compensation Court sitting en banc. Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 2, 684 P.2d 548, 549. Under this standard, we review the facts only to determine whether the record contains any competent evidence to support the court's decision, not whether the preponderance of the evidence supports the decision. Id. ¶ 12, 684 P.2d at 552. We review questions of law, however, de novo. Mangrum v. Fensco, Inc., 1999 OK 78, ¶ 4, 989 P.2d 461, 462.


¶ 8 The record contains competent evidence to support the Workers' Compensation Court's determination that Claimant has suffered a change of condition for the worse and needs additional medical benefits in the form of epidural steroid injections. Employer has not appealed from that determination. In addition, the record supports the court's factual conclusion that, despite her change of condition for the worse, Claimant has not established an additional period of temporary total disability.

¶ 9 The dispositive issue, however, is whether additional medical treatment due to a change of condition for the worse and temporary total disability status are inexorably linked as a matter of law.2 Claimant contends that they are and that the court erred when it failed to award temporary total disability benefits along with the additional medical benefits.3 Employer, on the other hand, contends that Claimant cannot be more than permanently totally disabled and that she is not entitled to additional temporary total disability benefits when there is no evidence that her change in condition has left her other than permanently and totally disabled.

¶ 10 The statutory basis for an increase in benefits is found in section 28 of the Workers' Compensation Act, which permits the Workers' Compensation Court to stop, increase, or decrease a claimant's compensation if there is a change of condition. Okla. Stat. tit. 85, § 28 (2001).4 Section 28 requires no particular combination of factors to support an award for increased benefits, but this Court has held that, once a claimant's permanent disability has been established, the claimant is not normally entitled to any additional medical treatment beyond that originally ordered unless he or she establishes a change of condition for the worse because the "healing period" of temporary total disability has recurred.

A permanent disability award constitutes a solemn adjudication that the worker's healing period has come to an end and his condition or state of health has reached the very optimum that is then medically attainable. The law assumes that a condition of health, once adjudged to be permanent, is stationary. Stationary conditions generally require no medical care or maintenance. The moment permanent disability begins, the right to receive medical treatment ceases by operation of law except, of course, for certain limited, tightly structured and explicitly authorized situations. Permanent disability, partial or total, is presumed to continue until recurrence of temporary disability is established. In contrast, temporary disability, once shown, is not presumed to extend for any length of time; its duration must be proved from the beginning to its very end. Once adjudged to have permanent disability, a worker is entitled to medical attention only upon establishing recurrence of the postaward healing period in a reopening proceeding. . . .

Bill Hodges Truck Co. v. Gillum, 1989 OK 86, ¶ 6, 774 P.2d 1063, 1065-66 (footnotes omitted).

¶ 11 Despite its broad language, Hodges is not directly applicable to this case for two reasons. First, the procedural posture of Hodges was quite different. Although the claimant in that case had been adjudicated permanently totally disabled and was seeking additional medical benefits in the form of a heart transplant, he had made no attempt to establish a change of condition. Instead, the claimant argued that he was entitled to the additional medical benefits under the order which adjudicated him permanently disabled and required the employer to continue to pay for "reasonable and necessary medical expenses." The Court's statement was directed to the claimant's assertion that he should be entitled to significantly greater medical benefits than those originally contemplated without establishing a change of condition for the worse.

¶ 12 Second, the holding in Hodges was based on cases involving claimants whose permanent level of disability had not yet been determined or who were only partially permanently disabled.5 That holding, therefore, was not made in contemplation of the kind of scenario before us now. Indeed, if Hodges was the only case we could consider, even medical care in the form of prescriptions to maintain a claimant's condition would be authorized only rarely. Nevertheless, we have recognized numerous conditions that require ongoing and evolving medical maintenance. Medical treatment for the purposes of maintenance is routinely authorized, as it has been in the case before us today. For example, in ...

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  • Multiple Injury Trust Fund v. Harper
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • August 29, 2008
    ...of the Workers' Compensation Court sitting en banc. Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 2, 684 P.2d 548, 549." Emery v. Central Oklahoma Health Care, 2007 OK 28, ¶ 7, 158 P.3d 1052, 1054-1055. (Emphasis original.) "Under this standard, we review the facts only to determine whether the......

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