Jennings v. EXPRESS TEMPORARY SERVICES, No. 93543.

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtREIF.
Citation999 P.2d 1115,2000 OK CIV APP 39
Decision Date08 February 2000
Docket NumberNo. 93543.
PartiesRevi JENNINGS, Petitioner, v. EXPRESS TEMPORARY SERVICES, National Union Fire Insurance, and Workers' Compensation Court, Respondents.

999 P.2d 1115
2000 OK CIV APP 39

Revi JENNINGS, Petitioner,
v.
EXPRESS TEMPORARY SERVICES, National Union Fire Insurance, and Workers' Compensation Court, Respondents

No. 93543.

Court of Civil Appeals of Oklahoma, Division No. 4.

February 8, 2000.


Walt Brune, Fred L. Boettcher, Boettcher Law Offices, Inc., Ponca City, Oklahoma, for Petitioner.

Michael Mancillas, Mancillas & Avey, Oklahoma City, Oklahoma, for Respondents.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

999 P.2d 1116
REIF, Judge

¶ 1 This case concerns a credit of $2,558.14 in temporary total disability paid to Claimant toward $2,705.17 in permanent partial disability awarded Claimant. The three-judge panel gave Employer and Insurance Carrier credit for temporary total disability that was paid to Claimant from October 29, 1997, to February 19, 1998, and from June 30, 1998, to July 8, 1998.1 At trial, Employer and Insurance Carrier had asked the court to credit a longer period of TTD beginning October 2, 1997, and ending July 8, 1998. Their counsel argued that the credit was warranted because Claimant had "no treatment from October 2, 1997, through July 8, 1998."

¶ 2 The primary basis for the request to credit the TTD period of October 1997 to February 1998 was a report from the court-appointed Independent Medical Examiner dated January 15, 1998. In this report, the IME indicated that he prescribed physical therapy for Claimant on October 2, 1997. This report also stated that the IME issued a new prescription to Claimant on October 29, 1997, because Claimant lost the initial prescription. The report further recounts the issuance of another renewal prescription on December 8, 1997, at Claimant's request. The IME recorded that Claimant had not been able to authorize her initial physical therapy. The report went on to relate that Claimant "had made [therapy] appointments several times [but] had failed to keep any of her [therapy] appointments." The IME concluded that Claimant was "noncompliant with any attempt at treatment ... and should be discharged from care and released to her regular activities." About a month later, however, on February 19, 1998, Claimant's medical expert reconfirmed that she had been "temporarily and totally disabled" since the injury.

¶ 3 The trial court gave a credit for the period of October 2, 1997, to February 19, 1998. On appeal to the three-judge panel, the credit was modified to extend from October 29, 1997, to February 19, 1998. This credit had the effect of disallowing Claimant temporary total disability for the period in question.

¶ 4 Claimant's primary proposition on review is that the workers' compensation court erred as a matter of law in giving the credit.2 The gist of Claimant's position is that the

999 P.2d 1117
IME report of January 15, 1998, does not constitute competent evidence to support the credit when considered with her testimony about her efforts to obtain physical therapy. She asserts that her problems in scheduling therapy did not involve any noncompliance with treatment that should disqualify her from temporary total disability

¶ 5 Claimant testified that she tried to get the prescribed physical therapy through the Stillwater Wellness Center. She indicated that her first attempt was unsuccessful because "they had to have an approval for payment ... and then — so I had to wait for [insurance authorization]." It appears that this first attempt to obtain therapy was after the October 29 prescription was issued in view of the fact that Claimant lost the initial prescription of October 2, 1997. Claimant further recounted that sometime "in November [1997] it was authorized, but by then the—the prescription [of October 29] was past 30 days."

¶ 6 At this point, Claimant sought and received the renewal prescription of December 8. In issuing this prescription, the IME recorded Claimant's problem in obtaining authorization. Claimant related that she eventually received an appointment for December 23, 1997, but "was ill with my pregnancy and was unable to go." She stated that when she "tried to reschedule the [December 23] appointment, and they wanted a new prescription because ... the prescription I was giving them [i.e., the December 8 prescription] was 30 days old." Claimant related that she called in January 1998 to get another renewal.

¶ 7 Claimant further testified that she was not informed by the IME that she was being released from treatment to work, but was told that the IME would reevaluate her after her pregnancy was concluded. Claimant testified that she advised her attorney of her problems in obtaining the physical therapy and the IME's postponement of a reevaluation. Counsel...

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1 practice notes
  • Thomas v. Burggraf Restoration, No. 95541.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • August 7, 2001
    ...-------- Notes: 1. Claimant did not appeal this finding. 2. See also Jennings v. Express Temporary Serv., 2000 OK CIV APP 39, ¶ 17, 999 P.2d 1115, 1119, where the evidence did not warrant a finding that the claimant's continuing temporary total disability resulted from an unreasonable refus......
1 cases
  • Thomas v. Burggraf Restoration, No. 95541.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • August 7, 2001
    ...-------- Notes: 1. Claimant did not appeal this finding. 2. See also Jennings v. Express Temporary Serv., 2000 OK CIV APP 39, ¶ 17, 999 P.2d 1115, 1119, where the evidence did not warrant a finding that the claimant's continuing temporary total disability resulted from an unreasonable refus......

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