Farm Fresh, Inc. v. Bucek

• Decision Date: 09 May 1995
• Docket Number: No. 82854,82854
• Citation: 895 P.2d 719,1995 OK 44
• Parties: FARM FRESH, INC., Petitioner, v. Charles BUCEK and the Workers' Compensation Court, Respondent.
• Court: Oklahoma Supreme Court

Page 719

895 P.2d 719

1995 OK 44

FARM FRESH, INC., Petitioner, v.Charles BUCEK and the Workers' Compensation Court, Respondent.

No. 82854.

Supreme Court of Oklahoma.

May 9, 1995.

On Certiorari to the Court of Appeals, Division No. 3.

A proceeding by employer to review an order of a three-judge panel of the Workers' Compensation Court which adopted the trial judge's award of permanent total disability.The Court of Appeals sustained the panel's order.On certiorari previously granted.

THE COURT OF APPEALS' OPINION IS VACATED AND THE REVIEW PANEL'S ORDER IS SUSTAINED.

Charles S. Plumb, Benjamin J. Chapman, Doerner, Stuart, Saunders, Daniel, Anderson & Biolchini, Tulsa, for petitioner.

Art G. Mata, Mata & Mata, Lawton, for respondent.

OPALA, Justice.

The dispositive issues presented on certiorari are: Does the 85 O.S.1991 § 17(D)¹ requirement--that a trial tribunal's deviation of more than 10% from the impairment rating by an independent court-appointed physician be specifically identified--apply to evaluation of permanent total disability? and if not Is the trial tribunal's award of permanent total disability supported by competent evidence?We answer the first question in the negative and the second in the affirmative.

ITHE ANATOMY OF LITIGATION

The claimant, Charles Bucek[claimant or Bucek], was employed as a maintenance engineer for Farm Fresh Bakery [employer].While repairing a bun oven on October 1 1989, he slipped on an oil-slick floor, sustaining injuries to his neck, back and left shoulder.The trial tribunal ordered the claimant's examination by an independent medical expert [Dr. H. or IME].

At the August 24, 1993 hearing several medical reports and records were admitted.The claimant's rating physician, Dr. E., concluded that Bucek had sustained 85% permanent partial impairment to the whole person and as a result was permanently totally disabled.The employer's rating physician, Dr. C., stated that the claimant had sustained 16% permanent partial impairment to the body.Dr. H., the court-appointed physician, who had been the claimant's treating physician, opined that Bucek had sustained 11% permanent partial impairment to the whole person.According to Dr. H., the claimant could return to work.

The trial tribunal entered an award for permanent total disability, ² which gave no explanation for its 89% in impairment deviation from the rating in the IME report.On appeal to a three-judge review panel, the employer argued that, in light of the IME's 11% permanent partial impairment assessment, the trial tribunal's determination of the claimant's permanent total disability had no support in the record or in compensation law.By its December 21, 1993 decision the review panel adopted the trial tribunal's award of permanent total disability.This proceeding for corrective relief, brought by the employer, followed.

The Court of Appeals sustained the panel's decision, holding that (a) the question whether claimant is permanently totally disabled is one of fact to be reviewed by the familiar standard of competent medical proof, and (b) the § 17(D)³ requirement--that a trial tribunal's deviation of more than 10% from the IME impairment rating be specifically identified--applies only to evaluations of permanent impairment and not to a permanent total disability rating.⁴

Although we reach the same result as the Court of Appeals, we vacate that court's opinion to provide a more extensive guidance for the distinction between impairment and disability in the post-1977 benefits regime.

II

THE "IMPAIRMENT" AND "DISABILITY" DISTINCTION IN THE 1977

WORKERS' COMPENSATION ACT

The employer urges that the trial judge impermissibly deviated more than 10% from IME's impairment rating because he failed to provide the explanation required by § 17(D) of the compensation law.⁵This issue calls for an analysis of the conceptual distinction between disability and impairment embodied in the 1977 Workers' Compensation Act [1977 Act].⁶When examining the impact of this legislation, it is helpful first to explore Oklahoma's pre-1977 benefits regime.

The Pre-1977 Disability-Based Compensation Scheme

When first enacted in 1915, Oklahoma's regime for delivery of benefits to an injured worker was designed to restore lost earnings for compensable harm from "hazardous employment".⁷This institutional design established four categories of disability-based benefits (permanent total, temporary total, permanent partial and temporary partial).⁸The key term "disability" was not defined by statute.The court eventually came to measure it by a worker's capacity to perform "ordinary manual or mechanical labor".⁹An injury to a specific, scheduled member of the body (a classified disability) was measured by the number of weeks in the member schedule, ¹⁰ while one to an "unclassified part of the body" fell under the "other cases" clause of § 22¹¹ and was compensated on the basis of percentage disability to the body as a whole.¹²

The 1977 Act's Disability-Based and Impairment-Related

Benefits Regime

The 1977 Act made two significant changes in the compensation law.It extended coverage to nearly all Oklahoma employees (not just to those in "hazardous employment") and introduced a mixed impairment -related and disability -based benefits regime.The terms disability and impairment were given distinct meanings.

Disability is designed to measure an employee's capacity for work, i.e., the degree to which an injury affects a person's ability to perform any task for which the worker is reasonably suited by training, education and experience.¹³The purpose of disability-related compensation in the 1977 Act is to replace the incapacitated worker's lost earnings ¹⁴ for injury to the limbs based on the number of weeks assigned as a maximum for each limb.The Act left intact this (pre-1977) wage-replacement concept of disability but confined its application solely to (1) temporary (temporary total and temporary partial) and (2) permanent total benefits.¹⁵Permanent total disability is defined as "[i]ncapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee is or becomes physically suited and reasonably fitted by education, training or experience."¹⁶In short, a permanently and totally disabled worker within the meaning of the Act is one eligible for wage replacement because of lack of capacity to earn any wages.

Impairment, on the other hand, is a medical condition; it refers to the effect of the injury upon a person's ability to perform basic life functions.¹⁷The term permanent impairment is defined as "any anatomical or functional abnormality or loss after reasonable medical treatment has been achieved, which abnormality or loss the physician considers to be capable of being evaluated at the time the rating is made."¹⁸Permanent partial disability means "permanent disability" and is the "same as permanent impairment."¹⁹This definition not only signifies a complete departure from the old theory of ordinary manual or mechanical labor, but also introduces a new and more specific concept for evaluating permanent partial disability by placing it on a footing absolutely equal with permanent impairment, i.e. loss of bodily function.

The American Medical Association Guides to the Evaluation of Permanent Impairment [AMA Guides]²⁰ provides helpful insight into the impairment-disability dichotomy.An impairment is viewed as a "medical matter", whereas disability is deemed to "arise out of the interaction between impairment and external demands."²¹As used in the AMA Guides, (a) impairment means "an alteration of an individual's health status that is assessed by medical means," and (b) disability, "which is assessed by nonmedical means, means an alteration of an individual's capacity to meet personal, social, or occupational demands, or to meet statutory or regulatory requirements."²²With the sole exception of scheduled member losses, total or partial, the AMA Guides must be used for rating permanent impairment.²³In short, permanent partial disability, as distinguished from other payout classes, contemplates recompense for lost physical fitness, though the amount paid the worker must be measured by a percentage of wages he(or she) would have earned but for the covered injury.²⁴

The terms of § 17(D)²⁵ require that a trial tribunal specifically identify the reason for its award's deviation of more than 10% from the impairment rating by an independent court-appointed physician.Section 17(D), construed together with §§ 3(11) AND (13)²⁶²⁷--the latter two of which define the terms permanent impairment and permanent partial disability--indicates that it is intended to deal with medical permanent partial impairment ratings.

The issue of permanent total disability turns on the evaluation of the worker's present capacity "to earn any wages in any employment for which he is presently suited or fitted by education, training or experience."²⁸The determination of a claimant's disability-based benefits presents a fact question for the trial tribunal.²⁹Its finding in this case declared Bucek to be totally and permanently disabled.Because § 17(D) has no application to disability -related benefits, the trial tribunal neither grounded its award in the AMA Guides nor was it statutorily required to explain why that award deviated (by 89%) from the IME's impairment rating.³⁰

III

THE TRIAL TRIBUNAL'S PERMANENT TOTAL DISABILITY AWARD IS

SUPPORTED BY COMPETENT EVIDENCE

While the panel's review of the trial tribunal's findings is governed by a clear-weight-of-the-evidence test, ³¹this court, when examining that tribunal's factual resolutions, applies the any-competent-evidence standard.³²If supported by competent evidence, the panel's findings may not be disturbed on review.³³

A.

The employer's expert evidence, consisting mostly of medical reports and records,...