Hammons v. Oklahoma Fixture Co.

• Decision Date: 04 February 2003
• Docket Number: No. 97,262.,97,262.
• Citation: 2003 OK 7,64 P.3d 1108
• Parties: Otis HAMMONS, Petitioner, v. OKLAHOMA FIXTURE COMPANY and the Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

64 P.3d 1108

2003 OK 7

Otis HAMMONS, Petitioner, v. OKLAHOMA FIXTURE COMPANY and the Workers' Compensation Court, Respondents.

No. 97,262.

Supreme Court of Oklahoma.

February 4, 2003.

William T. McKee, Law Offices of William T. McKee, PLC, Tulsa, OK, for Petitioner. Larry C. Brawner, R. Dean Lott, Brawner Law Office, Oklahoma City, OK, for Respondent.¹

OPALA, V.C.J.

¶ 1 The dispositive issues on certiorari are whether the Court of Civil Appeals [COCA] (1) was correct in implicitly declaring a failure of competent proof to support the panel's order that denied claimant's quest for permanent total disability [PTD] and (2) erred in directing that on remand benefits be awarded to the claimant (based on his evidence) without first affording the employer an opportunity to supply the COCA-found void in its medical proof. We answer both questions in the affirmative.

I THE ANATOMY OF LITIGATION

¶ 2 Otis Hammons (claimant) was adjudicated in 1997 permanently partially disabled from an injury to his lungs while working for Oklahoma Fixture Company (employer).² On claimant's 1997 and 1999 motions to reopen the claim, the trial tribunal awarded him increased permanent partial disability [PPD] benefits.³ In 2001 claimant pressed for PTD status. At the hearing he interposed a probative-value objection to employer's lone medical report. The trial judge overruled claimant's objection and denied his PTD quest. Because he found that claimant had a significant pre-existing component of lung-related impairment occasioned by smoking, the trial judge ruled claimant was not permanently totally disabled as a result of his work-related injury alone.⁴ This order was adopted by a three-judge review panel. Claimant then sought corrective relief from the panel's order. Vacating that order, COCA (a) concluded there was no competent proof to support the panel's finding that claimant's pre-existing impairment from smoking is so significant in its effect on the PTD status as to defeat his quest and (b) remanded the claim to the trial tribunal with directions to enter a PTD award (to be based on claimant's expert proof in the record).

¶ 3 On certiorari granted upon the employer's petition, we now vacate COCA's opinion as well as the panel's and the trial judge's orders and, for the reasons to be stated, remand the claim for further proceedings before the trial judge.

II

AN ORDER OF THE WORKERS' COMPENSATION COURT WHICH RESTS ON A CRITICAL FINDING OF FACT THAT IS UNSUPPORTED BY COMPETENT EVIDENCE ADDUCED BEFORE THE TRIAL TRIBUNAL MUST BE VACATED ON REVIEW AS UNRESPONSIVE TO THE PROOF DEVELOPED IN THE COURSE OF PROCEEDINGS

A. The Statutory Mandate

¶ 4 The issues to be resolved in compensation cases are ordinarily formed by the evidence,⁵ as well as by the required written materials⁶. The Workers' Compensation Court is required to make specific, on-the-record⁷ findings of ultimate facts responsive to the issues shaped by the evidence upon which its order is to be rested.⁸85 O.S.Supp.2001 § 26. When an order rests on a critical fact that is unsupported by competent evidence adduced before the trial tribunal, (a) it must be vacated on review as unresponsive to the proof developed during the proceedings and (b) the claim must be remanded for proceedings that will ultimately culminate in an order which meets the law's standards for a judicially acceptable decision.⁹

B. The Panel's Order Cannot Stand for Want of a Crumby Finding

¶ 5 The Workers' Compensation Court's finding that denies the claimant a PTD status is based on the presence of pre-existing conditions unrelated to the accidental harm in contest which militate against conferring a PTD award. COCA's opinion correctly concludes there is here no competent medical evidence to support the panel's order of PTD denial. This is so because entirely missing from the employer's medical report is a rated assessment of the effect, if any, upon the claimant's alleged capacity status (PTD) from the interplay of his compensable harm with the unrelated pre-existing conditions.¹⁰ By "effect" we refer to that component of claimant's total disability from pre-existing impairments which may (or may not) contribute to his current condition and which has an effect on (or does not affect) his present capacity for work. That element of the evaluation process is known in the language of the compensation bar as a Crumby finding.¹¹

¶ 6 The employer's lone medical report (admitted in evidence) notes that claimant had been awarded PPD in 1997, 1998 and 2000.¹² The text then opines that claimant had sustained neither a change of condition for the worse nor any impairment "over and above" that which had been previously awarded,¹³ concluding that claimant is not permanently and totally disabled (based on his age, education, training and work experience) and may return to work.¹⁴ The report's vice lies not in providing defective proof but rather in its utter failure of showing the extent of claimant's prior (unrelated) disability and the compensable injury's impact, if any, on the claimant's prior impairments.¹⁵ Because the panel's decision, now on review, is based on an underlying (trial judge's) order that lacks support in competent proof, the panel's order cannot stand.¹⁶

C. COCA Erred in Directing That on Remand an Award Be Made To Claimant for PTD Benefits

¶ 7 Employer argues on certiorari that COCA's vacation of the panel's order and the claim's remand with directions to award claimant PTD benefits (for want of employer's medical evidence to support the panel-ordered denial) constitutes an impermissible "Perlinger jackpot award."¹⁷ Relying on the teachings of Gaines v. Sun Refinery and Marketing,¹⁸ employer urges that, at the very least, the claim should be remanded for proceedings before the trial judge. According to claimant, the relief employer seeks would amount to another opportunity for its medical expert to rewrite the report in order to provide the missing link necessary to meet the arguments now raised on review.

¶ 8 When COCA implicitly declared (contrary to the decision by the trial judge and that of the panel) the employer's medical proof insufficient to support the trial judge's denial of PTD and directed that on remand an award be entered for the claimant (based solely on the latter party's medical proof), it gave the claimant the advantage of a so-called "Perlinger jackpot award."¹⁹Perlinger sanctions the practice that once allowed a party to defer interposing its specific objection to the opposing party's medical evidence until the decision's intra-court re-examination (by appeal to the panel) or until the review stage of the proceedings (before an appellate court). If the objecting party's challenge was successful on review, its own medical proof would be deemed the only competent expert evidence in the record, which would then be utilized in disposing of the claim.²⁰ The demise of this practice came with the teaching of Gaines.²¹ COCA's direction to enter, on this cause's remand, an award for the claimant clearly resurrects the now-defunct "jackpot rule." The latter no longer constitutes a correct exposition of Oklahoma's compensation jurisprudence. The employer is most assuredly entitled to an opportunity to rehabilitate its medical evidence by supplying the probative link which COCA implicitly found to be absent.

¶ 9 We accordingly hold that in this case the § 26 mandate together with the teachings of Gaines and Crumby require that (a) the claim be remanded for further proceedings before the trial judge and (b) the employer be extended the opportunity to rehabilitate its COCA-condemned medical report by replacing it with one that would prove defect-free.²²

III SUMMARY

¶ 10 A finding of ultimate facts that are responsive to the adduced evidence is an indispensable prerequisite for an order (or award) by the Workers' Compensation Court. Because the trial judge's critical finding is unsupported by competent evidence developed in the course of the claimant's PTD-quest hearing, the panel's order may not stand.

¶ 11 Critical but entirely missing from the employer's medical report is a rated assessment of the effect, if any, upon the claimant's alleged capacity status (PTD) from the interplay of his compensable harm with the unrelated pre-existing conditions. When, on COCA's review, the employer's lone medical report was correctly declared to be insufficient and the panel's order vacated, the employer should have been afforded a post-remand opportunity to (a) produce a detailed evaluation of the effect, if any, claimant's compensable disability may (or may not) have had on his pre-existing condition and (b) explain the compensable as well as noncompensable impairment's impact on the claimant's present capacity for work. COCA's direction that on remand claimant be awarded PTD benefits solely upon his medical report in the record offends the teachings of both Gaines and Crumby.

¶ 12 On certiorari granted upon the employer's petition, the Court of Civil Appeals' opinion as well as the trial judge's and the three-judge panel's orders are vacated; the claim is remanded for further proceedings before the trial judge to be conducted in a manner consistent with today's pronouncement.

¶ 13 ALL JUSTICES CONCUR.

1. Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

2. The trial judge issued his 28 January 1997 order for 22% PPD to the body as a whole from a work-related injury to the lungs sustained 1 March 1996 ("over and above" an 11% impairment from claimant's smoking).

3. On 23 January 1998 claimant was found to have suffered a change of condition for the worse, resulting in an increase of 5% PPD to the lungs.

On 20 March 2000 claimant was found to have suffered another change of condition for the worse, resulting in increased PPD-17% PPD to the lungs "over and above" the 27% previously awarded (for a total of 44% PPD for...