Shepard v. Okla. Dep't of Corr.

• Decision Date: 24 February 2015
• Docket Number: 113,033.
• Citation: 2015 OK 8,345 P.3d 377
• Parties: Barbara SHEPARD, Petitioner, v. The OKLAHOMA DEPARTMENT OF CORRECTIONS, Compsource Oklahoma and the Oklahoma Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

345 P.3d 377

2015 OK 8

Barbara SHEPARD, Petitioner

v.The OKLAHOMA DEPARTMENT OF CORRECTIONS, Compsource Oklahoma and the Oklahoma Workers' Compensation Court, Respondents.

113,033.

Supreme Court of Oklahoma.

Feb. 24, 2015.

Richard A. Bell, David Custar, The Bell Law Firm, Norman, OK, for Petitioner.

W. Jeffrey Dasovich, Oklahoma City, OK, for Respondents.

Opinion

EDMONDSON, J.

¶ 1 An insurance carrier sought review of a previous award of the Workers' Compensation Court that provided an injured worker with continuing necessary medical treatment in the form of prescriptions for pain management. The physicians for both sides to this dispute agreed that guidelines for treatment authorized by former 85 O.S.2011 § 326(G) did not provide for prescriptions as treatment for this worker's chronic pain. We conclude that the worker's statutory right under a former statute to necessary medical treatment that became a court award prior to the effective date of both 85 O.S.2011 § 326(G) and its incorporated guidelines, could not be extinguished by a retroactive application of the statute/guidelines to the worker without violating Art. V § 54, Okla. Const., which provides that “The repeal of a statute shall not ... affect any accrued right ... by virtue of such repealed statute.¹

I.

¶ 2 In November 2005, Shepard was working for the Oklahoma Department of Corrections when she was injured. The Workers' Compensation Court found that Shepard sustained an injury to her neck, lumbar back, left shoulder, right shoulder, and left arm. The court determined that she had sustained a permanent partial disability. The court ordered the respondent and/or insurance carrier “to provide the claimant with reasonable and necessary continuing medical maintenance limited to prescription medications and four (4) visits per year to monitor same with Dr. M. This provision shall be reviewed by the Court upon application of either party for good cause shown.” O.R. at p. 62. There was no limit imposed on the doctor's exercise of a medical judgment as to which prescriptions were needed by Shepard, except those that were medically reasonable and necessary. The court also directed payment of reasonable and necessary medical expenses incurred by Shepard as a result of her injury.

¶ 3 In 2010, Shepard moved to reopen her claim based upon a change of condition for the worse. In 2011, the Workers' Compensation Court reopened the claim and determined that Shepard had a change of condition for the worse and allowed additional compensation for the worsening of her left shoulder. The court also determined that she had no change of condition to her lumbar spine. The order of the Workers' Compensation Court en banc stated that respondent/insurance carrier “shall pay all reasonable and necessary medical expenses incurred by claimant as a result of said injury through the date of this order.” The previous award of continuing medical maintenance was not disturbed by the order that reopened her claim.

¶ 4 The order on reopening was appealed to the Court en banc which affirmed in part and modified in part the previous order. In 2011, the Court en banc modified a provision relating to temporary total disability, and two provisions of attorney's fees. The award of reasonable and necessary medical expenses was not modified. The previous award of continuing medical maintenance was not disturbed.

¶ 5 In 2012, Respondents sought a hearing to “discuss prescriptions.” They objected to Dr. M.'s medical report dated August 20, 2012. The court ordered Shepard to submit to a medical examination by Dr. Y., and directed this doctor to determine whether Shepard needed pain management and the nature and extent of necessary continuing medical maintenance. The order also directed Dr. Y. to determine if Shepard's current continuing medical maintenance by Dr. M. was within the Oklahoma Treatment Guidelines. The court also directed Dr. Y. to determine whether Shepard's continuing medical maintenance was within the Oklahoma Treatment Guidelines; and if not, was her continuing medical maintenance in her best interest?

¶ 6 Respondents then sought an order that would have the effect of terminating Shepard's medical prescriptions. In June 2014, the Workers' Compensation Court of Existing Claims ordered that Dr. M. “shall provide continuing medical maintenance to the claimant in accordance with the Oklahoma Treatment Guidelines (OTG) and the Official Disability Guidelines (ODG).” In July 2014, Shepard sought review of this decision by filing a petition in this Court. We retained the review proceeding on the Court's own motion.²

¶ 7 Shepard's first argument is that the Workers' Compensation Court of Existing Claims committed legal error by applying statutes and publications to control her medical treatment when those statutes and publications did not exist at the time of her injury. Her second argument is that if the Official Disability Guidelines and the Oklahoma Treatment Guidelines are applied to restrict the choices of prescriptions her physician may prescribe for her, then the Guidelines' application are the unauthorized practice of medicine.³

¶ 8 Respondents filed a response brief. They argued that (1) the Official Disability Guidelines and the Oklahoma Treatment Guidelines “are fully in effect and are the last will of the People;” and (2) medical treatment is a benefit and 85 O.S. § 326.G “merely directs how the benefit should be provided.” Their brief cites Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452, in support of their arguments.⁴ Their brief concludes with the assertion that the Court must determine “the effective date of Title 85 § 326.G.”

¶ 9 The controversy before us is an adjudication of statutory intent concerning the trial tribunal's retroactive application of a statute. An issue involving the existence of a legislative intent to make a statute retroactive is a question of law examined de novo and independently of the trial tribunal's ruling.⁵

II.

¶ 10 Shepard argues that the respondents have made an impermissible retroactive application of a new workers' compensation law. Respondents argue that application of the new law to medical benefits currently being provided is not a retroactive application. They also argue that even if the application is a retroactive application of a statute, then such application is permissible.

¶ 11 We must first determine whether the parties are correct that a change in the substance of the statute has occurred resulting in new law.⁶ The dispute is presented by the parties as a conflict between 85 O.S.Supp.2005 § 14(A)(1), in effect on Shepard's date of injury on November 9, 2005,⁷ and 85 O.S.2011 § 326(G), allegedly in effect for the review of Shepard's continuing medical award.⁸ Section 14(A)(1) states as follows.

A. 1. 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 after the injury. The treating physician shall supply the injured employee and the employer with a full examining report of injuries found at the time of examination and proposed treatment, this report to be supplied within seven (7) days after the examination; also, at the conclusion of the treatment the treating physician shall supply a full report of the treatment to the employer of the injured employee.

The newer statute, codified at 85 O.S.2011 § 326(G), states as follows.

G. Effective March 1, 2012, the scope and duration of medical treatment shall be provided in accordance with the current edition of the “Official Disability Guidelines”, as published by the Work Loss Data Institute. For medical treatment not addressed by the Official Disability Guidelines or addressed but not recommended in the ODG section in regard to injuries to the cervical, thoracic, or lumbar spine, the Physician Advisory Committee shall adopt the Oklahoma Treatment Guidelines as provided in Section 73 of this act. Medical treatment provided by or at the direction of the treating physician in accordance with the current edition of the Official Disability Guidelines or Oklahoma Treatment Guidelines is presumed to be reasonable and necessary medical care. The employer or insurance carrier shall not be responsible for charges for medical treatment not provided in accordance with the current edition of the Official Disability Guidelines or Oklahoma Treatment Guidelines unless the medical treatment was provided in a medical emergency, the medical treatment was preauthorized by the employer or insurance carrier, or the medical treatment is approved by the Court upon a finding based on clear and convincing evidence provided by a qualified independent medical examiner that medical treatment provided according to either the ODG or OTG is not in the best interest of the employee.

85 O.S.2011 § 326(G).

Shepard states that pursuant to § 14 she is entitled to medical treatment “as may be necessary.” However, pursuant to § 326 medical treatment pursuant to the Official Disability Guidelines (ODG) or the Oklahoma Treatment Guidelines (OTG) has a mandatory evidentiary presumption that only treatment pursuant to the ODG or OTG qualifies as reasonable and necessary care except for three instances: (1) medical treatment provided in a medical emergency, (2) medical treatment preauthorized by the employer or insurance carrier, or (3) medical treatment that was approved by the Court upon a finding based on clear and convincing evidence provided by a qualified independent medical examiner that medical treatment provided according to either the ODG or OTG is not in the best interest of the employee. Shepard argues that the express language of § 326(G) prevents her treating physician from providing testimony concerning her needed medical care in that the statute limits the nature of the evidentiary proof to the report of an independent medical examiner when treatment is sought that is not...