Howard v. ACI DISTRIBUTION SOUTH
| Citation | 229 P.3d 565,2009 OK CIV APP 95 |
| Decision Date | 12 November 2009 |
| Docket Number | No. 105,496. Released for Publication by Order of the Court of Civil Appeals of Oklahoma,Division No. 4.,105 |
| Parties | Mitch W. HOWARD, Petitioner, v. ACI DISTRIBUTION SOUTH, Travelers Indemnity Company of America and The Workers' Compensation Court, Respondents. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Jack Zurawik, Tulsa, OK, for Petitioner.
David P. Reid, Perrine, McGivern, Redemann, Reid, Berry & Taylor, P.L.L.C., Tulsa, OK, for Respondents.
¶ 1 Claimant Mitch Howard seeks review of a Workers' Compensation Court three-judge panel order that affirmed the trial court's order denying his request for medical treatment to his left shoulder. Based on our review of the record on appeal and applicable law, we vacate the order appealed and remand the case for further proceedings consistent with this Opinion.
¶ 2 Claimant worked as a utility driver for Employer ACI Distribution South. He sustained a work-related injury on July 21, 2004, when, while working with a trainee to load an 8' × 10' piece of glass onto a truck, he attempted to keep the glass from dropping and breaking after the trainee lost his grip. Claimant continued to work for Employer until August 2004, approximately two or three weeks after his accident. He then went to work for City Glass Company, where he drove a truck and performed "light installation" that included lifting up to forty pounds. Claimant filed his Form 3 on September 1, 2004, alleging that he had sustained injury to his neck, back, shoulders and "the whole left side of his body" as a result of his July 21, 2004 injury. Employer admitted that Claimant sustained injury to his neck and back but denied the remaining alleged injuries. This appeal only concerns Claimant's shoulder injury claim.
¶ 3 On March 21, 2005, the trial court appointed Dr. Thomas as an independent medical examiner (IME) to evaluate Claimant and provide his opinion regarding (1) whether Claimant was temporarily totally disabled as a result of injury to his neck, left shoulder, low back and middle back; (2) whether Claimant had reached maximum medical improvement (MMI) or was in need of additional medical treatment; and (3) the recommended treatment, if any. Dr. Thomas provided his opinion and was subsequently deposed. It was the opinion of Dr. Thomas that Claimant suffered from "cervical degenerative disk disease with cervical and left shoulder pain" but was not temporarily totally disabled. Dr. Thomas found that Claimant sustained "an acute injury in sic top of chronic degeneration of his cervical spine creating aggravation in not only the posterior neck, but into the left shoulder." He recommended "therapeutic epidural steroid injection into the C-6 interspace of the cervical spine" followed by a course of physical therapy. This diagnosis was based on Dr. Thomas's determination that Claimant's "main complaint" was his cervical spine and that his left shoulder complaints and "intrascapular pain" were "most likely generated from his cervical spine."
¶ 4 On March 8, 2006, the trial court appointed Dr. Bradford Boone as IME to provide his opinion on the causation of Claimant's left shoulder complaints, to refer Claimant for additional testing if necessary, and to determine whether Claimant was in need of additional medical treatment for his left shoulder. After he provided his written report, Dr. Boone was also deposed by the parties. Dr. Boone testified:
I think Claimant is nonphysiologie and a lot of his complaints don't make any sense. I think he does have a shoulder problem, it's more degenerative in nature. He's got a little bone spur osteophyte on the undersurface of his AC joint, which is why his shoulder is sore, but it's hard to relate that to his work scenario.
Further, Dr. Boone stated that "most impingements are not traumatic in nature and are degenerative and age-related." However, Dr. Boone acknowledged that Claimant's shoulder "needs to be worked up further," to be certain that his shoulder injury was not work related. Nonetheless, Dr. Boone did not refer Claimant for further medical testing and evaluation.1
¶ 5 Claimant filed a Form 9 seeking authorization for medical treatment in the form of diagnostic testing for his left shoulder and referral to an orthopedic surgeon. The matter was set for trial on March 5, 2007. At the trial, Claimant testified that he first sought treatment for his injuries on July 27, 2004, six days after his accident. His initial treatment records admitted as history indicate a diagnosis of lumbar strain but also note that he complained of pain running from the lumbar area into the left shoulder and neck. Claimant also testified regarding an August 2001 work-related injury to his left shoulder, neck and back before being employed by ACI, but stated that he had recovered from that injury. In addition to the medical evidence from IMEs Thomas and Boone, the trial court also admitted conflicting medical reports from Claimant's expert Dr. Hastings and Employer's expert Dr. Hallford.
¶ 6 On March 8, 2007, after both parties rested and the trial was concluded, the trial court entered the following order:
THAT on or about JULY 21, 2004, claimant was employed by ACI Distributing and such employment was subject to and covered by the provisions of the Workers' Compensation Act of the State of Oklahoma; and on said date claimant sustained accidental personal injury to the NECK, LEFT SHOULDER, and BACK arising out of and in the course of claimant's employment.
In this order, the trial court also directed Employer to furnish Claimant with an independent medical examination of his left shoulder with Dr. Dukes. The trial court reserved Claimant's request for additional medical treatment for future hearing.
¶ 7 The trial court entered a separate order on March 12, 2007, appointing Dr. Dukes as an IME and directing him to provide his opinion regarding the causation of Claimant's left shoulder complaints and whether they were work related. The trial court also requested Dr. Dukes, if he found the complaints to be work related, to determine whether Claimant was in need of additional medical treatment to his left shoulder and to make specific recommendations regarding any treatment.
¶ 8 IME Dr. Dukes examined Claimant on May 3, 2007, and determined that his shoulder had been injured, and that Claimant's symptoms were probably the result of a "lifting-type injury ... consistent with a work injury." He advised the trial court that he was unable to state an opinion regarding Claimant's need for additional medical treatment without further diagnostic treatment, specifically an MRI arthrogram. Dr. Dukes re-examined Claimant following the MRI and stated that in his opinion Claimant "has a left shoulder rotator cuff tendinitis and acromioclavicular AC joint arthropathy," requiring treatment in the form of "a left shoulder arthroscopy with subacromial decompression and distal clavical excision."
¶ 9 At a hearing on October 1, 2007, Claimant requested authorization for surgery to his left shoulder by Dr. Dukes and TTD from the date of surgery. Employer denied any need for shoulder treatment related to Claimant's on-the-job injury and argued that his shoulder complaints were the result of pre-existing condition, i.e., the 2001 injury, and intervening injury resulting from agerelated degeneration and Claimant's three years of subsequent employment after leaving ACI. The only evidence introduced at the October hearing in addition to that contained in the record of the March 2007 trial was (1) The report of Claimant's expert Dr. Hastings dated June 2007, wherein he again concluded that the work-related incident on July 21, 2004, was the major cause of Claimant's shoulder injury and that Claimant needed further evaluation and medical treatment, including the surgery recommended by Dr. Dukes; (2) the two reports from IME Dr. Dukes previously discussed, and, (3) the deposition of Dr. Dukes. In his deposition, Dr. Dukes confirmed the findings of injury stated in his post MRI report, testified that the injury was consistent with the work-related injury described by Claimant, and, stated his medical opinion that this July 21, 2004, injury accounted for at least part of Claimant's current shoulder complaints. The trial court advised the parties that it would consider the new evidence as well as the record made at the March 2007 trial.
¶ 10 On October 4, 2007, the trial court entered a one-page order denying Claimant's request for surgery to his left shoulder by Dr. Dukes. Paragraph one of the order, the only substantive paragraph, states:
THAT claimant's request for surgery to his LEFT SHOULDER with Dr. Dukes is denied as it is not as a result of claimant's JULY 21, 2004 injury.
Claimant appealed to a three-judge panel, which affirmed the trial court's order without modification, after finding it to be neither contrary to law nor against the clear weight of the evidence. Claimant now seeks review in this Court.
¶ 11 Issues of causation and need regarding requested medical treatment are questions of fact for the Workers' Compensation Court. Berg v. Parker Drilling Co., 2004 OK 72, ¶¶ 12-13, 98 P.3d 1099, 1101. On review, this Court must sustain an order of the Workers' Compensation Court if it is supported by any competent evidence. Id. at ¶ 13, 98 P.3d at 1099. See also Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 552 (). Appellate review of the Workers' Compensation Court's legal rulings is de novo. Conaghan v. Riverfield Country Day Sck, 2007 OK 60, ¶ 7, 163 P.3d 557, 560 ().
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