Orrick Stone Co. v. Jeffries, 43417

CourtSupreme Court of Oklahoma
Citation1971 OK 116,488 P.2d 1243
Docket NumberNo. 43417,43417
PartiesORRICK STONE COMPANY and State Insurance Fund, Petitioners, v. Lawrence P. JEFFRIES and the State Industrial Court of the State of Oklahoma, Respondents.
Decision Date21 September 1971

Syllabus by the Court

1. The word 'compensation', as used in 85 O.S.1961, § 22, as amended, refers to compensation to be paid to an employee for loss of earnings, whereas medical treatment and attendance, nursing services, etc., as used in 85 O.S.1961, § 14, means the care that the Industrial Court finds, under competent evidence is necessary and required by the employee.

2. In a proper case the expression, 'medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches and apparatus as may be necessary,' as used in § 14, of the Workmen's Compensation Act may include home-nursing care. The type and character of medical care authorized for an employee during the 60-day period following an industrial accident (85 O.S.1961, § 14) is not diminished as a matter of law subsequent to the 60-day period.

3. In such a case, the time during which medical treatment, attendance, and nursing service, etc. must be provided under § 14 is not limited to the 300-week period of temporary total disability fixed by § 22(2) of the Act.

4. When the maximum compensation for temporary total disability of an employee has been paid pursuant to the provisions of 85 O.S.1961, § 22, as amended, it is the duty of the Industrial Court, upon proper application, to determine the existence, if any, of permanent disability.

5. The State Industrial Court, contemporaneously with and as a part of an order awarding permanent total disability, may award medical treatment and care for as long a time as it may be needed. Anything said in Okla. Planning & Resources Board v. Herren, Okl., 341 P.2d 599 (1959) of contrary effect is specifically overruled.

Original proceeding to review an order of the State Industrial Court; A. R. Swank, Jr., Trial Judge.

The trial tribunal awarded medical care, deferred determination of permanent disability and retained continuing jurisdiction of claim. Award sustained but cause remanded for further proceedings.

Sam Hill, Moraul Bosonetto, Oklahoma City, for petitioners.

Harry R. Palmer, Jr., Oklahoma City, for respondents.

WILLIAMS, Justice.

Claimant in the Industrial Court was rendered practically immobile in both his arms and both his legs as a result of the industrial accident which was the basis of his claim. After he had been hospitalized at length and had been paid three hundred weeks temporary total disability benefits, he sought an order for further nursing and medical attention. The employer resisted on the theory that claimant is either permanently and totally or permanently and partially disabled and entitled only to an order for permanent benefits. The order made awarded such medical treatment but deferred adjudication as to permanent disability. Employer and insurance carrier seek a review in this original proceeding. For reasons hereinafter discussed we affirm the award.

Counsel for claimant in brief filed here-in now concedes that 'the evidence disclosed that the claimant was permanently and totally disabled for the performance of ordinary manual labor.' A detailed recitation of the evidence of the medical witnesses is not deemed essential to our decision.

The order entered by the trial judge, affirmed by the State Industrial Court, en banc, in pertinent part, found and ordered that claimant was in need of continuing medical treatment, attendance, nursing service, etc., and ordered that respondents 'provide the necessary medical attention which the claimant requires, and until further Order of the Court,' and retained jurisdiction.

Respondents present herein three propositions of alleged error. They first say there was no medical evidence to support the trial court's order awarding continuing medical care and attendance, nursing services, etc. and that the award thereof should be vacated. They argue that at the time of the entry of the order herein sought to be reviewed, claimant was suffering from none of the conditions described as likely to occur in the future, that he was not shown to then be in need of treatment, that when and whether he would need treatment was 'unpredictable and conjectural,' that the care claimant needs is home-nursing care only, 'someone * * * generally to be hands and feet for him,' not medical attendance or treatment as intended in the statute. We do not agree.

The section of our statute under which claimant seeks to sustain the award sought to be reviewed herein is 85 O.S.1961, Sec. 14 (now 85 O.S.Supp.1970, § 14), which requires the employer to furnish medical and nursing care to an injured employee. In pertinent part, it provides:

'The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary during sixty (60) days after the injury or for such time in excess thereof as in the judgment of the Court may be required. * * *'

The medical and nursing care provided for in the statute 'is such as will reasonably and seasonably tend to relieve and cure the injured employee from the effects of the injury,' rehabilitate him 'in order that he may return to the ranks of productive labor with normal capacity when possible, and when impossible to restore normal capacity then to the highest degree attainable' 'together with temporary relief.' McMurtry Bros. v. Angelo, 139 Okl. 236, 281 P. 964, 965 (1929). The purpose is to secure a prompt restoration. Mattingly v. State Ind. Court, Okl., 382 P.2d 125, 128 (1963). These cases emphasize that the treatment to be provided is that which is necessary.

Here, it is true that no present need for an operation or other treatment in a hospital or by a physician was shown. And it is also true that whether and when claimant may need that particular character of treatment is rather uncertain, unpredictable or conjectural in the sense that such need might not arise for a long time or, in fact, ever. 99 C.J.S. Workmen's Compensation § 271, Right to Operation, p. 924, note 16.

In our opinion, however, this is not conclusive as to the correctness of respondents' proposition. For the testimony is that claimant 'still needs around-the-clock nursing care, as he is for all practical purposes an invalid;' 'that he has a continuing daily nursing care need and he has--he will have a periodic, probably, medical meed;' that claimant, being a quadriplegic (even with such around-the-clock nursing care) in the future probably will develop pulmonary and genito-urinary infections or stones, bed-sores and possibly calcified mass accumulation at the left elbow requiring an operation to remove it. The question of when medical treatment should cease or whether an operation is reasonably necessary is one of fact to be resolved by the State Industrial Court. That Court, if supported by sufficient evidence, may direct treatment in the future. Douglas Aircraft Co. v. Titsworth, Okl., 356 P.2d 365 (1960).

We hold that the home-nursing care claimant needs and that is being furnished to him by respondents pursuant to the subject order is medical treatment, attendance and nursing service, etc., within the meaning of § 14, supra.

Respondents, in their second proposition, state that they have no responsibility to furnish further (medical) treatment to claimant because his condition has reached the ultimate (degree) of recovery. They present two arguments under this proposition. One is based on the fact situation already discussed herein. Respondents say claimant's permanent disability should be determined and an appropriate order issued. In the treatment of respondents' last proposition we consider the responsibility of the trial court to determine claimant's permanent disability.

Respondents also argue that medical treatment is one of the 'benefits' under § 22(2) of the Workmen's Compensation Act and that it is limited to the 300-weeks period in excess of which temporary total compensation payments may not be required. Commercial Casualty Ins. Co. v. Brock, 176 Okl. 348, 55 P.2d 788. They urge that the jurisdiction of the State Industrial Court to award medical treatment is 'ancillary to its jurisdiction to award compensation to the injured employee,' citing Black Gold Petroleum Co. v. Hirshfield, 182 Okl. 634, 79 P.2d 566.

It, of course, is elementary that any court must have jurisdiction in three well-known aspects before it can render an effective judgment. It also is true that 'medical treatment allowed by statute is merely an allowance in the nature of compensation in addition to scheduled compensation,' Williams v. Central Dairy Products Co., 205 Okl. 266, 236 P.2d 984 (1951); McMurtry Bros. v. Angelo, supra, and Hanna Lumber Co. v. Penrose, 154 Okl. 210, 7 P.2d 164 (1932).

Our statute relating to the payment of 'temporary total disability' to an injured employee eligible under the Act, being 85 O.S.1961 (now Supp.1970) Sec. 22(2), provides:

'2. Temporary Total Disability. In cases of temporary total disability, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages shall be paid to the employee during the continuance thereof, but not in excess of three hundred (300) weeks, except as otherwise provided in this act.'

The thrust of respondents' effort is an attempt to work a combination of the provisions of sections 14 and 22(2), supra, of effect that the 300-week limitation on payment of scheduled compensation for temporary total disability would apply to limit to the same period the time during which medical treatment must be furnished. The argument is that the 300-week period is a 'healing period' during which temporary compensation must be paid, if required so long, but beyond termination of which neither scheduled compensation,...

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