H.R. Hill Trucking Co. v. Hilburn
| Decision Date | 15 April 1997 |
| Docket Number | No. 1,No. 88121,88121,1 |
| Citation | 940 P.2d 238 |
| Parties | 1997 OK CIV APP 24 H.R. HILL TRUCKING CO. and the State Insurance Fund, Petitioners, v. Dennis HILBURN and Workers' Compensation Court, Respondents. Court of Civil Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
David Custar, Oklahoma City, for Petitioners.
Roger B. Hale and Phillip D. Ryan, Oklahoma City, for Respondent.
Petitioners H.R. Hill Trucking Co. and the State Insurance Fund (collectively, Employer) seek review of an order of a three-judge panel, modifying the order of the trial court denying the motion to reopen by Respondent Dennis Hilburn (Claimant), by which the appellate tribunal affirmed the trial court's finding of no change of condition for the worse, but directed Employer to provide the Claimant with additional medical treatment, "if medically appropriate." Because the Workers' Compensation Court found Claimant had sustained no change of condition, we hold the Workers' Compensation Court could not as a matter of law properly award additional medical treatment, and conclude that portion of the order of the three-judge panel to that effect should be vacated.
In October 1991, Claimant sustained an on-the-job injury to his back, requiring multi-level fusion of vertebrae with associated placement of pedicle screws. In January 1994, the Workers' Compensation Court found Claimant's injury compensable, and awarded benefits for forty-four percent (44%) permanent partial disability (PPD) and a specific sum for disfigurement.
In April 1995, Claimant moved to reopen on change of condition for the worse, and subsequently underwent evaluation by a court-appointed independent medical examiner (IME). At trial, Claimant introduced the medical report of Dr. Williams, who found Claimant had sustained a change of condition for the worse, that Claimant was again temporarily and totally disabled, and that Claimant needed additional medical treatment in the nature of an orthopedic evaluation of his back.
In opposition, Employer introduced the medical testimony of Dr. Pettigrew and Dr. Schoenhals, the IME. Dr. Pettigrew found Claimant had sustained no change of condition for the worse. Dr. Schoenhals found that by "subjective" complaints, Claimant reported a change of condition for the worse, but Dr. Schoenhals opined that Claimant would probably not reap any medical benefit from removal of the "hardware" implanted at the time of Claimant's earlier fusion surgery. 1
Based specifically on the report of the IME, the trial court found Claimant had sustained no change of condition for the worse and denied Claimant's motion to reopen. On Claimant's appeal to a three-judge panel, the appellate tribunal held:
THAT, although Claimant has not sustained a "change of condition for the worse" in law; nevertheless the [Employer] shall provide the [C]laimant with hardware removal, if medically appropriate.
Employer now appeals, alleging error of law by the three-judge panel in ordering additional medical treatment in the nature of "hardware removal" when the Workers' Compensation Court specifically found Claimant had sustained no change of condition for the worse.
Employer correctly points out that upon an adjudication of permanent disability, a claimant's right to receive medical treatment "ceases by operation of law." Bill Hodges Truck Co. v. Gillum, 774 P.2d 1063, 1066 (Okla.1989). Thereafter, a claimant may obtain further medical attention "only upon establishing recurrence of the post-award healing period in a reopening proceeding under" 85 O.S.1991 § 28. Bill Hodges Truck Co., 774 P.2d at 1066.
However, the Workers' Compensation Court, "contemporaneously with and as a part of an order awarding permanent total disability, may award medical treatment and care for as long a time as it may be needed." Orrick Stone Co. v. Jeffries, 488 P.2d 1243 (Okla.1971) (syllabus by the Court). Thus, Oklahoma law recognizes two avenues available to obtain medical care beyond the statutory period provided for medical treatment or after an adjudication of permanent disability: (1) a request for future medical treatment at the time of the adjudication of permanent disability, or (2) a reopening proceeding under 85 O.S. § 28.
Notwithstanding these authorities, Claimant argues that at least one prior decision of the Oklahoma appellate courts has recognized that a claimant...
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Pitchford v. Jim Powell Dozer, Inc., 92,261.
...disability unless specifically reserved by the Trial Court in its order awarding permanent benefits, H.R. [Hill] Trucking Co. v. Hillburn [Hilburn], 940 P.2d 238, 240 (Okl.Civ.App.1997). When permanent partial disability is adjudicated by the Trial Court, claimant's treatment and medical ma......