Phillips Petroleum Co. v. Carter

• Decision Date: 14 November 1995
• Docket Number: No. 2,No. 85667,85667,2
• Citation: 914 P.2d 677,1995 OK CIV APP 138
• Parties: 1995 OK CIV APP 138 PHILLIPS PETROLEUM COMPANY, Own Risk, Petitioner, v. Gertrude CARTER and Workers' Compensation Court, Respondents. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 677

914 P.2d 677

1995 OK CIV APP 138

PHILLIPS PETROLEUM COMPANY, Own Risk, Petitioner, v.Gertrude CARTER and Workers' Compensation Court, Respondents.

No. 85667.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 2.

Court of Appeals of Oklahoma Division No. 2.

Nov. 14, 1995.

Rehearing Denied June 16, 1996.

Certiorari Denied March 27, 1996.

T. Shane Curtin, Wiles & Curtin, Oklahoma City, for Petitioner.

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

REIF, Judge.

Own Risk Employer seeks review of the trial court order directing Employer to "provide claimant with an under-vehicle wheelchair lift and related necessary equipment."Claimant sought a wheelchair lift that could be mounted on a van to transport the express mobility vehicle that Employer had previously provided.In the order the court noted that a prior order adjudicating a job-related injury to Claimant"established all the jurisdictional issues herein."

Employer contends that Claimant failed to meet the burden placed upon her under Zwahlen v. B.F. Goodrich, 755 P.2d 658, 659(Okla.1988), to "present competent evidence which demonstrates that the requested medical care [apparatus] is necessary."Employer asserts that the fatal deficiencies in Claimant's evidence were (1)Claimant's failure to testify concerning the need for any wheelchair lift, let alone the type ordered; (2) the failure of Claimant's medical report and "prescription" for the wheelchair lift to comply with Workers' Compensation CourtRule 20, 85 O.S.1991, ch. 4, app.; and, (3) the failure of the medical report and prescription to expressly state that a wheelchair lift was "necessary" and to recommend or prescribe the particular wheelchair lift that was ordered.Claimant takes the position that (1) the issue of necessity of a medical apparatus is a question that requires expert medical evidence rather than lay testimony; and, (2) that Rule 20 applies only to medical reports relating to injury and impairment, and not to an issue such as the necessity of an apparatus under 85 O.S.1991 § 14(A).¹

Upon review, we hold that Rule 20 applies to all medical reports for use in evidence, including those that concern the need for medical equipment and apparatus.We further hold that Claimant's medical report was sufficient under Rule 20, along with other evidence, to support the award of a wheelchair lift.

"Where an ... injury necessitates the modification or substitution of an automobile in order to accommodate a wheelchair or artificial member and to restore in part a claimant's former ambulatory ability, such costs may be awarded as 'other apparatus.' "Fidelity and Casualty Co. v. Cooper, 382 So.2d 1331, 1332(Fla.Dist.Ct.App.1980)(citations omitted).This rule has been followed by other courts in holding that specially equipped vans are compensable medical treatment/apparatus under statutes similar to section 14(A).SeeTerry Grantham Co. v. Indus. Com'n, 154 Ariz. 180, 741 P.2d 313(Ct.App.1987);see alsoMeyer v. North Dakota Workers' Compensation Bureau, 512 N.W.2d 680(N.D.1994).

Given the fact that Claimant in the instant case has been provided and uses an express mobility vehicle (similar to a motorized wheelchair) as her primary means of ambulatory ability, the addition of a lift to her van to transport the express mobility vehicle is similarly a necessary apparatus contemplated by section 14(A).As pointed out in Rieger v. Workmen's Compensation Appeal Board, 104 Pa.Cmwlth. 42, 521 A.2d 84, 87(1987), "if a wheelchair is necessary, then it logically follows that minor modifications needed to facilitate the use of the appliance must also be considered a necessity."Rieger held that modifications to the claimant's house and van were "orthopedic appliances" and "supplies" under Pennsylvania's workers' compensation act.Accordingly, a claimant's lay testimony is not essential to establishing a need for an apparatus, such as the lift, where that need is apparent from other undisputed, attendant circumstances and medical evidence is offered concerning the need.

We must next decide what medical evidence is required on this issue.A "medical doctor's ... recommendation for [equipment or apparatus] indicates a reasonable medical necessity for their being made available."Zwahlen, 755 P.2d at 659.In the instant case, Claimant presented the "recommendations" of two doctors--one by declared report and one by prescription--concerning the necessity of the requested wheelchair lift.As previously noted, Employer contends that neither of these complied with Rule 20 and, therefore, they are insufficient to support the order directing Employer to provide the lift.In addressing this issue, we begin by noting that we agree with Employer's general contention that expert medical testimony that is submitted in writing must comply with the requirements of Rule 20 governing signed, verified/declared reports.However, we do not agree that a verified or declared report must address each of the seven points listed in subsection B of the rule, but only those which are applicable to the medical issue about which the physician is giving testimony or rendering...