Independent School Dist. No. 1 of Tulsa County v. Albus, 50733

• Decision Date: 13 December 1977
• Docket Number: No. 50733,50733
• Citation: 1977 OK 241,572 P.2d 554
• Parties: INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, Oklahoma, Petitioner, v. Grace J. ALBUS and the State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 554

572 P.2d 554

INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, Oklahoma, Petitioner, v. Grace J. ALBUS and the State Industrial Court, Respondents.

No. 50733.

Supreme Court of Oklahoma.

Dec. 13, 1977.

Original proceeding to review order awarding compensation for permanent partial disability resulting from injury during covered employment. Yvonne Sparger, Trial Judge.

AWARD VACATED WITH DIRECTIONS.

Rosenstein, Fist & Ringold by Gene L. Mortensen and Janine H. VanValkenburgh, Tulsa, for petitioner.

Byron D. Todd, Tulsa, for respondents.

BARNES, Justice:

A trial judge awarded compensation for permanent partial disability (35%) resulting from injury to Claimant's left leg during covered employment. The order included other findings denying Petitioner's claims concerning procedural matters, and, over objections, charged Petitioner with certain items of expense as costs. Petitioner, hereafter Respondent, perfected proceeding for review directly to Supreme Court. 85 O.S.1971, § 29.

Matters summarized reflect factual basis for review. Although the transcript discloses occurrence of a prior hearing, at an unspecified time in Tulsa, Oklahoma, for settlement of any injury claim by joint petition, apparently no record was made of the proceeding, 85 O.S.1971, § 78. The transcript does disclose trial court rejection of proposed settlement because Claimant was not represented by counsel and had no medical evidence.

Claim for compensation alleged knee injury March 12, 1976, medical treatment by Respondent's Dr. V., and Claimant's release for return to work on June 3, 1976. Claim filed October 19, 1976, requested hearing be held in Tulsa County. On October 21, 1976, the trial judge ordered Claimant to report to Dr. W.J.H. in Oklahoma City on November 17, 1976, for examination at Respondent's expense.

Upon receipt of the doctor's report, Respondents objected thereto, and requested right of cross-examination either by deposition or testimony at the hearing upon two grounds: (1) not the best evidence; (2) charges by Dr. H. were excessive, unreasonable and not comparable with charges prevailing in the same community for such services. Although the trial court acknowledged receipt of Dr. H.'s report and statement of charges, neither appears in the record. However, the statement received by Respondent, and ordered paid under the order, claimed $300.00 for services, including $25.00 typing fee.

The court set the case for hearing in Oklahoma City and Respondent moved for hearing to be held in Tulsa where the parties resided. Hearing was cancelled and Claimant thereafter made letter request for hearing in Oklahoma City. The case was reset in Oklahoma City over Respondent's objections, cancelled due to Dr. H.'s illness, reset and heard February 15, 1977, without Claimant being represented by counsel. The court noted Respondent's objections to Dr. H.'s medical report and to charges for examination reflected by statement which accompanied this report.

Testimony from Dr. H. concerning cause and extent of disability, resulting from history taken and results of complete physical examination, elicited on direct examination by the court, evaluated 35% permanent partial disability from injury to left leg. Respondent cross-examined Dr. H. as to basis of evaluation and factors considered in disability evaluation. The court refused to allow cross-examination relative to reasonableness of medical charges, stating this would be done in a second proceeding at which Respondent necessarily would have to produce witnesses to give testimony concerning similar charges in this locality. Respondent sought to introduce affidavits from Tulsa physicians concerning prevailing charges in that locality, and made an offer of proof in this connection. These affidavits, and an accompanying letter, were held inadmissible, although the court read those instruments and stated their contents in the record. Counsel excepted to the court's refusal to allow any cross-examination pertaining to reasonableness of charges for medical examination.

The court re-examined Claimant to establish employment, injury and jurisdiction, and ordered medical report of the treating surgeon (Dr. V.) admitted into evidence. This report, which had not been allowed on joint petition hearing, related Claimant's injury, hospitalization, surgery for medial meniscus, and eventual evaluation of 15% permanent partial disability from residual effects of injury.

An order awarded compensation for 35% (61.25 weeks) disability to the left leg, payment of accrued compensation ($1,900.00), and ordered balance of this award paid at rate of $100.00 per week. Respondent was ordered to pay Dr. H.'s charges for independent medical examination per statement rendered, and also ordered payment of $150.00 to the doctor as an expert witness fee.

Numerous contentions are presented as grounds for modification of this order. The cause must be remanded for further proceedings for reasons discussed hereafter. For this reason we do not consider whether consistent appointment of an independent medical examiner and sua sponte transfer of the cause to the city of the examiner's residence is proper exercise of judicial discretion, when qualified experts are available where the claim arose and the parties reside. Attention is directed, however, to our recent decision in National Zinc Co. v. Sparger, 560 P.2d 191 (Okl.1977), holding sua sponte transfer of a cause from Tulsa County to Oklahoma County was an abuse of judicial discretion.

Important questions arise from the production of Claimant's medical evidence. In workmen's compensation cases a Claimant must assume the burden of establishing cause and extent of disability. Where medical evidence is essential to establish disability resulted from accidental injury, this evidence must be proved by testimony of skilled professional people. Carpenter v. Douglas Aircraft Co., 420 P.2d 911 (Okl.1966); Chief Freight Lines, Inc. v. Rines, 395 P.2d 799 (Okl.1964). Where Claimant inadvertently omits production of this proof, opportunity must be afforded Claimant to supply such omission in interests of justice. Carpenter v. Douglas Aircraft Co., supra,

In this posture, the inquiry is whether Claimant's medical evidence was produced within confines of established rules governing compensation claims. We hold it was not. Claimant was required to adduce medical evidence to support claim for compensation. In event the Claimant had no medical evidence when the claim was heard, opportunity to offer evidence and preserve her rights would have obtained under the Carpenter decision. Without waiting for Claimant to assume the requisite burden, however, the court appointed an independent medical examiner. Respondent had nothing to do with this appointment, which was made without presence of any factor, i. e., disparity of medical testimony, which justified independent medical examination.

We have not considered the exact problem. Recently, however, in Largent v. State Industrial Court, 556 P.2d 262 (Okl.1976), a similar question was invoked by denial of a Claimant's motion to tax deposition costs and expert witness fees. The charges were incurred by reason of Claimant's need for additional medical evidence. Claimant's theory was that deposition expenses were proper items of cost to be allowed the prevailing party when a final order is entered against Respondent. We held deposition costs and witness fees were not allowable simply because a final order awarded compensation against Respondents when cross-examination was necessitated by Claimant's need for medical testimony.

Respondent did nothing to cause appointment of an independent medical examiner, as this was accomplished solely upon the trial court's authority. Approval of this action would create a vehicle by which Claimant's burden of proof would be removed in every case. Simply by filing claim and awaiting trial court appointment of an examining doctor, both the burden of proof and necessity for producing expert testimony to support the claim would be shifted to Respondent. The discretion accorded State Industrial Court in appointment of independent medical examiners does not contemplate changing settled law by removing necessity for counsel and initial production of medical evidence to show cause and extent of disability.

Further matters involved in appointment of the "neutral" medical examiner require attention. Both arise out of trial court rulings relative to testimony of Dr. H., who was not subpoenaed, and was present to testify in another case. The first inquiry concerns trial court's refusal to allow cross-examination of the doctor as to reasonableness of his fees. At outset of the hearing, counsel was advised Respondents had no right to object to reasonableness of charges, as this would have to be done by offering evidence that the doctor's charges were too high. The trial court then examined the doctor in respect to conduct of examination and evaluation based upon findings and reasons therefor.

Upon cross-examination, counsel sought to interrogate the doctor concerning charges appearing in his statement. The court again advised cross-examination would have to be based upon evidence as to similar charges in Oklahoma City in order to show Dr. H.'s charges unreasonable. Counsel sought to introduce affidavits of Tulsa specialists concerning charges for such examinations. The court properly denied admission of affidavits into evidence. The statutes and State Industrial Court Rules prescribe methods for production of deposition testimony. Ex parte statement of a physician cannot be considered as evidence unless agreed to by the opposing party. Standard Coal Co. v. State Industrial Commission, 139 Okl. 269, 281 P. 966. We do not, however, understand this failure to properly offer evidence showing unreasonableness of charges, by producing evidence concerning charges for the same examination in this...