Maxwell v. Sprint PCS

• Citation: 369 P.3d 1079
• Decision Date: 12 April 2016
• Docket Number: 114,161.,113,941,113,811,113,898
• Parties: Theresa MAXWELL, Petitioner, v. SPRINT PCS, American Casualty Co. of Reading Pennsylvania, and the Workers' Compensation Commission, Respondents, and Damien Lequint Smith, Petitioner, v. Baze Corp. Investments, Inc. and Compsource Mutual Ins. Co., Respondents, and Jerry D. Hoffman, Petitioner, v. Tulsa Gas Technologies, Inc., and Commerce & Industry Insurance Co., Respondents, and Delano Majors, Petitioner, v. Accent Staffing, Inc., Compsource Mutual Ins., Co., and The Workers' Compensation Commission, Respondents.
• Court: Supreme Court of Oklahoma

369 P.3d 1079

Theresa MAXWELL, Petitioner,

v.SPRINT PCS, American Casualty Co. of Reading Pennsylvania, and the Workers' Compensation Commission, Respondents,andDamien Lequint Smith, Petitioner,

v.Baze Corp. Investments, Inc. and Compsource Mutual Ins. Co., Respondents,andJerry D. Hoffman, Petitioner,

v.Tulsa Gas Technologies, Inc., and Commerce & Industry Insurance Co., Respondents,andDelano Majors, Petitioner,

v.Accent Staffing, Inc., Compsource Mutual Ins., Co., and The Workers' Compensation Commission, Respondents.

113,898

113,811

113,941

114,161.

Supreme Court of Oklahoma.

April 12, 2016.

Bob Burke, Oklahoma City, Oklahoma, for Petitioner Theresa Maxwell and Petitioner Damien Smith.

Gary Prochaska, Oklahoma City, Oklahoma, for Petitioner Damien Smith.

Bret A. Unterschuetz, Law Offices of Arthur H. Adams, P.C., Tulsa, Oklahoma, for Petitioner Jerry Hoffman.

Michael R. Green, Valerie L. Sparks, Law Offices of Michael R. Green, Tulsa, Oklahoma, for Petitioner Delano Majors.

John A. McCaleb, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Oklahoma, for Respondents Sprint PCS and American Casualty Co. of Reading, PA.

Preston G. Hanner, Caldwell, Russell, Thompson & Hanner P.C., Oklahoma City, Oklahoma, for Respondents Baze Corp. Investments and Compsource Mutual Insurance Company.

Kevin E. McCarty, McCarty & Associates, PLLC., Oklahoma City, Oklahoma, for Respondents Tulsa Gas Technologies, and Commerce and Industry Insurance Company.

David J.L. Frette, Anthony A. Blair, Perrine, Redemann, Berry, Taylor & Sloan, P.L.L.C, Tulsa, Oklahoma, for Respondent Accent Staffing Inc., and Compsource Mutual Insurance Company.

E. Scott Pruitt, Patrick R. Wyrick, Sarah A. Greenwalt, Jared B. Haines, Office of the Attorney General, Oklahoma City, Oklahoma.

Rabindranath Ramana, Calvert Law Firm, Oklahoma City, Oklahoma, for Amicus Curiae Oklahoma Coalition for Workers' Rights.

V. Glenn Coffee, Denise K. Davick, Glenn Coffee & Associates, Oklahoma City, Oklahoma, for Amicus Curiae State Chamber of Oklahoma.

GURICH, J.

Facts & Procedural History

¶ 1 On February 2, 2014, Petitioner Theresa Maxwell suffered an injury to her knee while working for her Employer, Respondent Sprint PCS. She promptly notified her Employer and timely filed a CC–Form–3 with the Workers' Compensation Commission on March 18, 2014. The Employer admitted Petitioner's injury to her knee was compensable, and she had surgery to repair a tendon in her knee. Petitioner also received temporary total disability benefits from February 6, 2014, until February 24, 2014. After reaching maximum medical improvement on July 2, 2014, she returned to her pre-injury position with her employer earning her pre-injury wages. On September 24, 2014, Petitioner Maxwell filed a request for a contested hearing on the issue of permanent partial disability.

¶ 2 A hearing was held on December 8, 2014, and the ALJ, relying on the AMA Guides 6th Edition, concluded that Petitioner sustained 2% permanent partial disability to the body as a whole as a result of the injury to her knee and that the rate of compensation was $323.00 for a total award of $2,261.00. However, because she returned to her pre-injury position and pay, the ALJ ordered the award of benefits be deferred at a rate of $323.00 beginning July 2, 2014, for every week Petitioner worked in her pre- injury or equivalent job according to 85A O.S. Supp.2013 § 45(C)(5). Petitioner appealed the order, and the Workers' Compensation Commission sitting en banc affirmed on April 24, 2015. Petitioner Maxwell appealed to this Court on May 4, 2015, and we retained the case. On October 6, 2015, this case was made a companion case with the above-styled and numbered causes.¹

Standard of Review

¶ 3 Section 78 of Title 85A provides:

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.

85A O.S. Supp.2013 § 78(C).

Analysis

Scheduled Members Are Exempt From the AMA Guides Under the AWCA

¶ 4 The issue of whether scheduled members are exempt from the AMA Guides under the AWCA is an issue of statutory interpretation. Statutory interpretation presents a question of law which we review under a de novo standard. Such review is plenary, independent, and non-deferential.

State ex rel. Protective Health Servs. State Dep't of Health v. Vaughn, 2009 OK 61, ¶ 9, 222 P.3d 1058, 1064.

¶ 5 Petitioner Maxwell and Respondent Employer Sprint PCS both agree that Petitioner Maxwell's injury to her knee was an injury to her leg. Under 85A O.S. Supp.2013 § 2(40), a leg is considered a " ‘scheduled member’ or ‘member’ " along with "hands, fingers, arms, feet, toes, and eyes."² Section 45(C)(1), which addresses permanent partial disability, provides in part that "[a] physician's opinion of the nature and extent of permanent partial disability to parts of the body other than scheduled members must be based solely on criteria established by the current edition of the American Medical Association's ‘Guides to the Evaluation of Permanent Impairment.’ "³ Respondent Employer Sprint PCS concedes⁴ the AMA Guides do not apply because the statutory language specifically exempts scheduled members from the AMA Guides.⁵

¶ 6 The language exempting scheduled members from the AMA Guides was inserted into the workers' compensation statutes in 1977 and has remained in each and every version of the statute since that time.⁶

This Court, for nearly forty years, has interpreted such language to mean exactly what it says—scheduled members are exempt from the AMA Guides.⁷ "Unless a contrary intent clearly appears or is plainly expressed, the terms of amendatory acts retaining the same or substantially similar language as the provisions formerly in force will be accorded the identical construction to that placed upon them by preexisting case law. "⁸ Petitioner Maxwell's knee injury was exempt from evaluation under the AMA Guides.⁹

¶ 7 Additionally, because Petitioner Maxwell's injury was to a scheduled member, the permanent partial disability award should have been to the leg and not to the body as a whole. Section 46(A) provides:

A. An injured employee who is entitled to receive permanent partial disability compensation under Section 45 of this act shall receive compensation for each part of the body in accordance with the number of weeks for the scheduled loss set forth below.

1. Arm amputated at the elbow, or between the elbow and shoulder, two hundred seventy-five (275) weeks;

2. Arm amputated between the elbow and wrist, two hundred twenty (220) weeks;

3. Leg amputated at the knee, or between the knee and the hip, two hundred seventy-five (275) weeks;

4. Leg amputated between the knee and the ankle, two hundred twenty (220) weeks;

5. Hand amputated, two hundred twenty (220) weeks;

6. Thumb amputated, sixty-six (66) weeks;

7. First finger amputated, thirty-nine (39) weeks;

8. Second finger amputated, thirty-three (33) weeks;

9. Third finger amputated, twenty-two (22) weeks;

10. Fourth finger amputated, seventeen (17) weeks;

11. Foot amputated, two hundred twenty (220) weeks;

12. Great toe amputated, thirty-three (33) weeks;

13. Toe other than great toe amputated, eleven (11) weeks;

14. Eye enucleated, in which there was useful vision, two hundred seventy-five (275) weeks;

15. Loss of hearing of one ear, one hundred ten (110) weeks;16. Loss of hearing of both ears, three hundred thirty (330) weeks; and

17. Loss of one testicle, fifty-three (53) weeks; loss of both testicles, one hundred fifty-eight (158) weeks.¹⁰

The parts of the body listed in § 46(A) include arm, leg, hand, foot, fingers, toes, eyes, ears (loss of hearing), and testicles. Except for the testicles, the body parts listed in the § 46(A) schedule are the same body parts defined as scheduled members. Additionally, arms, legs, hands, feet, fingers, toes, and eyes have been classified as scheduled members since the inception of the system in 1915.¹¹ The "other cases" provision in § 46(C) by its terms applies only to "an injury to a part of the body not specifically covered by the foregoing provisions of this section," i.e., § 46(A). 85A O.S. Supp.2013 § 46(C). The "other cases" provision has also applied to "all other cases" since 1915.¹²

¶ 8 While amputations to parts of the body listed in § 46(A) are compensated for the number of weeks listed, § 46(B) goes on to state that "[t]he permanent partial disability rate of compensation for amputation or permanent total loss of use of a scheduled member specified in this section shall be seventy percent (70%) of the employee's average weekly wage, not to exceed Three Hundred Twenty-three dollars ($323.00), multiplied by the number of weeks as set forth in this section, regardless of whether or not the injured employee is able to return to his or her pre-injury job." 85A O.S. Supp.2013 § 46(B) (emphasis added). Additionally, § 46(G) provides that "[c]ompensation for permanent total loss of use of a member shall be the same as for amputation of the member. " 85A O.S. Supp.2013 46 § (G) (emphasis added). The use of the word "amputated" in the schedule in § 46(A), by further definition, actually means amputations OR "permanent total loss...