Hill v. Am. Med. Response, Case Number: 115558

Decision Date26 June 2018
Docket NumberCase Number: 115558
Citation423 P.3d 1119
Parties Robert HILL, Petitioner, v. AMERICAN MEDICAL RESPONSE, Indemnity INS. Co. of North America, and The Workers' Compensation Commission, Respondents.
CourtOklahoma Supreme Court

Richard Bell, Norman, Oklahoma, Michael R. Green, Tulsa, Oklahoma, and Bob Burke, Oklahoma City, Oklahoma, for Petitioner.

Donald A. Bullard and H. Lee Endicott, Bullard & Associates, P.C., for Respondents.

Mithun Mansinghani, Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for the State of Oklahoma.

John N. Hermes and Andrew J. Morris, McAfee & Taft, P.C., for Amicus Curiae the State Chamber of Oklahoma.


¶ 1 The question before this Court concerns whether evidence in the underlying workers compensation proceeding should have been excluded by the administrative law judge, as well as the constitutionality of several provisions of the Administrative Workers Compensation Act (AWCA), 85A O.S. §§ 1 - 125, that require mandatory use of the Sixth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides, Sixth Edition) to evaluate permanent partial disability (PPD). This Court determines the administrative law judge did not err by admitting the challenged evidence. This Court also determines the mandatory use of the AMA Guides, Sixth Edition, for assessing impairment for non-scheduled members does not violate the Constitution.


¶ 2 Petitioner Robert Hill (Hill) was a paramedic in the employ of Respondent American Medical Response (Employer), when he injured his right shoulder on September 22, 2014, while lifting a person of large body habitus. On November 7, 2014, Hill underwent surgery to repair a torn rotator cuff. After post-operative physical therapy, Hill was released on February 5, 2015, at maximum medical improvement and given permanent restrictions.

¶ 3 Hill timely filed a CC-Form-3 on February 11, 2015. Employer admitted the injury and benefits were provided pursuant to the provisions of the AWCA. Employer was apparently unable to accommodate Hill's permanent restrictions, and so Hill is no longer employed with American Medical Response. Per Hill's testimony, he found work with a new employer and is making approximately 25% less per annum.

¶ 4 On June 30, 2016, a hearing was held before Administrative Law Judge (ALJ) Tara A. Inhofe. The issue that concerns this appeal was Hill's request for an award of PPD benefits. Hill submitted a report by Dr. Stephen Wilson, who opined that Hill sustained 8% whole person impairment pursuant to the AMA Guides, Sixth Edition, and 31.8% impairment pursuant to the AMA Guides, Fifth Edition. Dr. Wilson did not express an opinion as to which rating more accurately described Hill's PPD. Employer's evaluating physician, Dr. William Gillock, asserted in his own report that Hill sustained 4.2% whole person impairment pursuant to the AMA guides, Sixth Edition.

¶ 5 At the hearing, Hill attempted to exclude Dr. Gillock's report. Hill asserted: 1) that the report violated the requirements of Daubert v. Merrell Dow Pharms. Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; and 2) the mandatory use of the AMA Guides, Sixth Edition, for assessing impairment for non-scheduled members violates the Oklahoma Constitution. The ALJ rejected Hill's arguments and determined that Hill sustained 7% whole person impairment, equal to an award of $7,913.50.

¶ 6 Hill appealed to the Workers' Compensation Commission (Commission), which affirmed the ALJ's decision on November 18, 2016. Hill filed a Petition for Review in this Court on November 28, 2016. Hill's appeal was retained by this Court on November 29, 2016. The Court held oral argument in this matter on March 19, 2018, and the cause was assigned to this office on March 28, 2018.


¶ 7 The law in effect at the time of the injury controls both the award of benefits and the appellate standard of review where workers' compensation is concerned. Corbeil v. Emricks Van & Storage , 2017 OK 71, ¶ 9, 404 P.3d 856 ; Brown v. Claims Mgmt. Res., Inc. , 2017 OK 13, ¶ 9, 391 P.3d 111 ; Williams Co., Inc. v. Dunkelgod , 2012 OK 96, ¶ 14, 295 P.3d 1107. Hill's injury occurred on September 22, 2014. As Hills's injury occurred after the effective date of the AWCA, appellate review is governed by 85A O.S. Supp. 2013 § 78, which provides in pertinent part:

C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties. Any judgment, decision or award made by an administrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award 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.

¶ 8 When considering the constitutionality of a statute, courts are guided by well-established principles and a heavy burden is placed upon those challenging the constitutionality of a legislative enactment. Lee v. Bueno , 2016 OK 97, ¶ 7, 381 P.3d 736 ; Douglas v. Cox Ret. Properties, Inc. , 2013 OK 37, ¶ 3, 302 P.3d 789 ; Thomas v. Henry , 2011 OK 53, ¶ 8, 260 P.3d 1251. All presumptions are to be indulged in favor of a statute's constitutionality. Lee , 2016 OK 97 at ¶ 7, 381 P.3d 736 ; Douglas , 2013 OK 37 at ¶ 3, 302 P.3d 789 ; Thomas , 2011 OK 53 at ¶ 8, 260 P.3d 1251. A legislative act is presumed to be constitutional and will be upheld by this Court unless it is clearly, palpably and plainly inconsistent with the Constitution. Lee , 2016 OK 97 at ¶ 7, 381 P.3d 736 ; Rural Water Sewer and Solid Waste Mgmt. v. City of Guthrie , 2010 OK 51, ¶ 15, 253 P.3d 38 ; Kimery v. Public Serv. Co. of Okla. , 1980 OK 187, ¶ 6, 622 P.2d 1066.

¶ 9 We have previously explained that this Court's examination of a statute's constitutional validity does not extend to policy:

The nature of this Court's inquiry is limited to constitutional validity, not policy. It is not the place of this Court, or any court, to concern itself with a statute's propriety, desirability, wisdom, or its practicality as a working proposition. Douglas , 2013 OK 37, ¶ 3 ; In re Assessments for Year 2005 of Certain Real Property Owned by Askins Properties, L.L.C. , 2007 OK 25, ¶ 12, 161 P.3d 303 ; Fent [v. Oklahoma Capitol Imp. Authority] , 1999 OK 64, ¶ 4 . A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the legislative provision and a court's function extends no farther in our system of government. Douglas , 2013 OK 37, ¶ 3 ; Edmondson v. Pearce , 2004 OK 23, ¶ 17, 91 P.3d 605 ; Fent , 1999 OK 64, ¶ 4 .

Lee , 2016 OK 97 at ¶ 8, 381 P.3d 736.

A. The ALJ did not err by admitting the report of Employer's treating physician.

¶ 10 Hill first asserts that the report of Employer's expert, Dr. William Gillock, relying on the AMA Guides, Sixth Edition, is not relevant to establishing the nature and extent of Hill's permanent partial disability, and thus violates the standards of Daubert v. Merrell Dow Pharms. Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As this Court noted in Christian v. Gray , 2003 OK 10, ¶¶ 7-9, 65 P.3d 591, the Daubert decision sets forth several criteria a trial judge must consider when determining the admissibility of expert testimony under Federal Rule of Evidence 702, 28 U.S.C.A. We explained:

Daubert provided a list of factors for the trial judge to consider when determining the admissibility of evidence. They include: 1. Can the theory or technique be, or has it been, tested; 2. Has the theory or technique been subjected to peer review and publication; 3. Is there a "known or potential rate of error ... and the existence and maintenance of standards controlling the technique's operation;" and 4. Is there widespread acceptance of the theory or technique within the relevant scientific community. Daubert , 509 U.S. at 593-594 . The inquiry is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate. Id . 509 U.S. at 595 .
The evidence must also "assist the trier of fact to understand the evidence or to determine a fact in issue." This requirement "goes primarily to relevance." Daubert , 509 U.S. at 591 . Rule 702 thus "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Daubert , 509 U.S. at 592 .

Christian, 2003 OK 10, ¶¶ 8-9, 65 P.3d 591.

¶ 11 Federal Rule of Evidence 702 was amended in direct response to Daubert and its progeny, and currently provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Federal Rule of Evidence 702, 28 U.S.C.A. The requirements of Rule 702, and hence the Daubert standard, have been incorporated directly into the AWCA by the Legislature through 85A O.S....

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