Hughes Drilling Co. v. Morgan
| Decision Date | 22 June 1982 |
| Docket Number | No. 56702,56702 |
| Citation | 648 P.2d 32 |
| Parties | HUGHES DRILLING COMPANY and U.S.F. & G. Company, Appellants, v. Ronald Lee MORGAN and Workers' Compensation Court, Appellees. |
| Court | Oklahoma Supreme Court |
Proceeding to Review a Decision of the Workers' Compensation Court.
Proceeding to review a decision of Workers' Compensation Court sitting en banc awarding compensation to claimant and denying insurance carrier's motion for appointment of a third examining physician to evaluate claimant's disability where divergence exists in evaluations made by examining doctors for claimant and respondent.
SUSTAINED.
Carl E. Moslander, Oklahoma City, for appellants.
Fred L. Boettcher, Ponca City, for appellees.
This is an appeal brought by the insurance carrier in a workers' compensation case. The trial court awarded claimant compensation for permanent partial disability resulting from a work-related injury. The court en banc modified the order of the trial court in part by deleting paragraph 7 of the order which states: ; and substituting therefore: "That respondent's motion for independent examination of the claimant is overruled." In all other respects, the order of the trial court was affirmed by the court en banc.
Claimant's injuries were evaluated by two examining doctors.
Dr. G. evaluated claimant's injuries as follows: Lumbar back injury, 25% whole man impairment; left hip injury, 14% whole man impairment; disability to left knee, 55% to the left leg; and disability to right foot, 20%, being 20% disability to the right foot.
Dr. M. found no disability due to injury to claimant's back, left hip or right foot, but found 30% permanent impairment of the whole left leg.
By reason of the disparity in the two doctors' findings, respondent filed a written motion for the selection of a third examining physician pursuant to 85 O.S.Supp.1977, § 17 1 and Rule 22 of the Workers' Compensation Court rules. 2
The sole issue presented for review on appeal is whether the trial court committed reversible error in its refusal to appoint a third examining physician as authorized and directed by 85 O.S.Supp.1977, § 17 and Rule 22 of the Workers' Compensation rules.
It is apparent that Rule 22 does not purport to confer a new right to the appointment of a third examining physician independent from that conferred by 85 O.S.Supp.1977, § 17 and that the procedures prescribed therein are intended to be supplemental to those set forth in § 17. It is further apparent that when the procedural and substantive conditions have been met and complied with, then, and only then, it becomes the mandatory duty of the trial court to appoint a third examining physician. The statutory clause in paragraph B of § 17 that "the Court shall appoint the third physician" leaves no doubt as to its meaning. In the construction of statutes, "shall" is usually given its common meaning of "must." It is interpreted as implying a command or mandate. 3
Appellant insurance carrier contends that in determining the legislative intent in interpreting the meaning of: "When the medical testimony to be introduced on behalf of the employee and employer is divergent by more than thirty percent ...," as set forth in § 17A where multiple injuries occur to various parts of the body, the combined and cummulative disability may be considered in determining whether the divergence is more than 30%. Appellee claimant urges that only the evaluation of the disability to the separate areas of trauma may be considered. It appears to us that it is the disparity of more than 30% between the comparison of like parts of the body or between the evaluation of disability to the body as a whole that is to be considered in determining whether the divergence exceeds 30% within the clear legislative intent of the statute. Therefore, since in the case before us, the divergence between the doctors' opinions as to the extent of disability to the body as a whole exceeded 30%, the first requirement of § 17 was here present.
There is no room for construction or provision for further inquiry when the Legislature plainly expresses its intent. 4
The prescribed conditions which must be met under § 17 and Rule 22 as a prerequisite to the right to the appointment by the court of a third examining physician are as follows:
1. The medical testimony of the examining physicians must be divergent by more than 30% as to like parts of the body or as to the body as a whole.
2. The challenging party must give written notice to all other parties and to the Administrator of his challenge to the medical testimony.
3. Upon receipt of the notice both the challenging and the challenged party must select a third physician.
4. The trial judge shall allow the parties 10 days from the date of the challenge in which to notify the judge as to whether the parties are able to agree on the selection of the third physician by notice in the form of a letter which may be written by either party.
5. Within ten days following the letter notice, the court shall appoint a third physician.
6. Within five days following the receipt of the court order appointing the third physician, either party may file an objection in writing, or such objection shall be deemed to have been waived.
7. Upon receipt of the third physician's report, either party has the right to object to the introduction into evidence of the report. Such objection must be by written notification to all the parties and to the court within 5 days following the receipt of the report.
We will next consider whether the appellant insurance carrier has met the conditions thus imposed as a prerequisite to its right to require the trial court to appoint a third examining physician.
Where, as here, a statutory right is created which did not exist at the common law and the same statute fixes the conditions upon which the right may be asserted, the conditions are an integral part of the right thus granted-are substantive conditions, the observance of which is essential to the assertion of the right. 5
Appellant attempted to invoke § 17 and Rule 22 by the filing in the court below of a motion for the appointment of a third examining physician. Having failed to follow the procedures which are a prerequisite to its assertion of a right to compel the trial judge to appoint a third examining physician, the appellant has no justiciable status to complain of the trial court's failure to grant it statutory relief under a legislative enactment which fixes the prerequisite conditions to the assertion of that claimed right, which conditions appellant failed to meet.
It is a well settled rule that when a...
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