Gillispie v. Estes Express Lines, Inc.

• Decision Date: 01 October 2015
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4. ,No. 113,508.,113,508.
• Citation: 361 P.3d 543,2015 OK CIV APP 93
• Parties: O'Neal R. GILLISPIE, Petitioner, v. ESTES EXPRESS LINES, INC., New Hampshire Insurance Co., and the Workers' Compensation Commission, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

361 P.3d 543

2015 OK CIV APP 93

O'Neal R. GILLISPIE, Petitioner,

v.ESTES EXPRESS LINES, INC., New Hampshire Insurance Co., and the Workers' Compensation Commission, Respondents.

No. 113,508.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

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

Oct. 1, 2015.

Joey Chiaf, Chiaf Law Offices, P.C., Oklahoma City, Oklahoma, for Petitioner.

Nick Crews, Travis A. Fulkerson, Fellers, Snider, Blankenship, Bailey & Tippens, Tulsa, Oklahoma, for Respondents.

Opinion

P. THOMAS THORNBRUGH, JUDGE.

¶ 1 Claimant, O'Neal R. Gillispie, seeks review of an order by the Oklahoma Workers' Compensation Commission sitting en banc (Commission) affirming a decision by an administrative law judge (ALJ) that denied Claimant benefits for injury to his neck. For the reasons set forth below, we reverse the Commission's order and remand for further proceedings, to include the appointment of a treating physician for Claimant's neck pursuant to the provisions of the Administrative Workers' Compensation Act.

BACKGROUND

¶ 2 Claimant is a truck driver for Estes Express Lines, Inc. (Employer). On March 14, 2014, he filed a CC–Form–3 claiming injury to his back, neck, right shoulder, and head on March 3, 2014, when he slipped and fell as he descended an icy ramp at work, on the way to hook up his tractor trailer. Employer admitted injury to the right shoulder and back, and began providing medical treatment to those body parts. It denied the neck injury was attributable to Claimant's employment, and has not provided treatment for it.¹

¶ 3 Employer asserted as a defense that Claimant has a pre-existing neck condition as a result of a 2010 work injury for another employer. It argued the pre-existing condition removed Claimant's neck condition “outside the scope of a compensable injury” under § 2(9) of the Administrative Workers' Compensation Act, 85A O.S. Supp.2014 §§ 1through 125 (AWCA), because it was not “solely caused” by the March 3, 2014 fall.²Employer also argued Claimant was not asserting a new injury but was actually claiming aggravation of his pre-existing neck condition, and that Employer was entitled to apportionment.

¶ 4 An ALJ heard the matter on July 7, 2014. Claimant testified that he had injured his neck in 2010 while working for another employer, but fully recovered and had experienced no further problems with his neck until after his recent fall. He submitted supporting medical evidence, including a report from his medical expert, Dr. Blough, who made the following observations:

Physical examination of the cervical spine

reveals tenderness to palpation in the bilateral paraspinal musculature. Cervical range of motion is restricted in all planes. Cervical pain radiates into the right upper extremity with numbness and tingling. Weakness against resistance is demonstrated in the cervical flexors and extensors. Weakness is also demonstrated in the shoulders, elbows and wrists against resisted flexion and extension. Jamar dynamometertesting reveals 38 pounds of force produced with the right hand and 49 pounds of force produced with the left hand. Decreased sensation to monofilament testing is noted in the upper extremities.

¶ 5 Dr. Blough found that Claimant had sustained “acute traumatic injury to [his] cervical spine” with “anatomical abnormalities

consistent with multiple disc bulges” attributable to the March 2014 accident, and recommended that Claimant undergo diagnostic testing, including an MRI and evaluation of his neck by the same spine specialist who is currently treating Claimant's low back, Dr. Robert Remondino. Employer submitted a medical report from its expert, Dr. LeRoy Young, who obtained and reviewed x-rays of Claimant's cervical spine that showed “moderate to severe disc space narrowing at C5–6 and C6–7,” and “[h]ypertrophic degenerative changes.” Dr. Young opined that “the major cause of [Claimant's] current complaints to his cervical spine and headaches is not the accident of March 3, 2014,” and that Claimant had sustained “no permanent partial impairment to the body as a whole for injuries to the heador cervical spine as a result of the above stated accident....” Dr. Young did not address whether Claimant's neck needed further treatment, nor did he opine further as to the cause of Claimant's neck condition.

¶ 6 The ALJ denied Claimant's request for treatment, finding he had failed to prove by a “preponderance of the evidence” that he suffered a “compensable injury,” as defined in AWCA § 2(9), to his neck. Claimant appealed to the Commission en banc, which heard oral arguments by the parties in November 2014. On motion but without discussion, the Commissioners voted unanimously in open session to affirm based on findings that the ALJ's order was neither against the clear weight of the evidence nor contrary to law, and issued an order accordingly. Claimant seeks review here.

STANDARD OF REVIEW

¶ 7 This Court “may modify, reverse, remand for rehearing, or set aside” a judgment, decision, or award of the Commission only if it was:

1. In violation of constitutional provisions;

2. In excess of the statutory authority or jurisdiction of the Commission;

3. Made on unlawful procedure;

4. Affected by other error of law;

5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence;

6. Arbitrary or capricious;

7. Procured by fraud; or

8. Missing findings of fact on issues essential to the decision.

85A O.S. Supp.2014 § 78(C).

¶ 8 The parties agree that the above-quoted statute is the appellate court standard of review that was in effect when Claimant's injury occurred in March 2014, and that the standard applies here. They also agree that Claimant has asserted subsections (C)(5)(that the Commission's decision was clearly erroneous) and (C)(8)(that the decision fails to make findings on essential issues) in support of reversal.

¶ 9 The parties differ, however, as to how review under (C)(5) should be applied to the Commission's factual determination that Claimant did not sustain a compensable injury to his neck and was not entitled to medical treatment.³Employer argues the Legislature intended to invoke the deferential “any competent evidence” standard set out in Parks v. Norman Municipal Hospital,1984 OK 53, 684 P.2d 548, and applicable to injuries occurring prior to November 1, 2010. Claimant argues that the proper interpretation of subsection (C)(5) requires this Court to reverse or modify a Commission order not supported by the “clear weight of the evidence,” and cites the Supreme Court's decision in Peoplelink, LLC v. Bear,2014 OK 65, –––P.3d ––––, in support of his argument that the Commission's decision was clearly erroneous. Significantly, neither party's argument recognizes the Commission's status as an administrative agency.

¶ 10 As specified in the AWCA, the Commission is an executive agency of the State of Oklahoma, 85A O.S. Supp.2014 § 19(A), and is subject to the Oklahoma Administrative Procedures Act (OAPA), 75 O.S.2011 and Supp. 2014 § 250 et seq., with regard to rulemaking. See85A O.S. Supp.2014 § 19(C). As to “appeals and disputes arising from Commission actions,” the AWCA, rather than the OAPA, applies.⁴85A O.S. Supp.2014 § 19(F). Even so, the review criteria set forth in AWCA § 78(C)are virtually identical to those set forth in the OAPA at 75 O.S.2011 § 322(1)⁵with three notable exceptions, one of which is found in AWCA § 78(C)(5).⁶

Review Pursuant to AWCA § 78(C)(5)

¶ 11 The OAPA equivalent to AWCA § 78(C)(5)is OAPA § 322(1)(e), which provides that an appellate court may reverse an agency decision if the decision is:

(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in [75 O.S.2011 § 310], including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question [sic] of fact....(Emphasis added).

The language italicized above (1) incorporates OAPA § 310, which directs agencies in how to treat certain types of evidence and evidentiary privileges in agency proceedings generally; and (2) prohibits a court from substituting its judgment for the agency's as to the weight of the evidence on fact issues. Similar language was not included by the Legislature in AWCA § 78(C)(5).

¶ 12 Why the Legislature would not have incorporated a reference similar to OAPA § 310 in the AWCA is likely because such a reference would be of little practical use in workers' compensation proceedings. Workers' compensation practice has its own unique set of procedural and evidentiary rules, particularly with regard to medical evidence and the release of medical information (including physician testimony). Attempting to incorporate a reference similar to OAPA § 310into the workers' compensation appellate review standard would be impractical. Moreover, the Legislature made clear in AWCA § 72(A)(1)that the Commission and ALJs are not “bound by technical or statutory rules of evidence or formal rules of procedure” unless required by the AWCA itself.

¶ 13 Less obvious is the reason why the Legislature did not include a direction to appellate courts similar to the one made in OAPA § 322(1)(e), that a reviewing court should not substitute its judgment for an agency decision “as to the weight of the evidence.” We do not, however, consider the lack of such specific prohibitory language in AWCA § 78(C)(5)as evidencing legislative intent for this Court to reweigh the evidence or to substitute our judgment for that of the Commission's fact finding. Had the Legislature intended for this Court to conduct a “reweighing of the evidence” identical to that conducted by the Commission, it could certainly have said so, as it did, for example, in 85 O.S. Supp.2010 § 3.6(C), or 85 O.S.2011 § 340(D). It did not.

¶ 14 We find it likely that the...