Sitzman v. Cherokee Nation Enterprises, (2010)

• Decision Date: 08 July 2010
• Docket Number: SC-09-04
• Parties: SHEILA SITZMAN, APPELLANT/CLAIMANT, v. CHEROKEE NATION ENTERPRISES, APPELLEE/RESPONDENTS, HUDSON INSURANCE COMPANY APPELLEE/INSURANCE CARRIER.
• Court: Judicial App Tribunal Court Cherokee Nation

SHEILA SITZMAN, APPELLANT/CLAIMANT, v. CHEROKEE NATION ENTERPRISES, APPELLEE/RESPONDENTS, HUDSON INSURANCE COMPANY APPELLEE/INSURANCE CARRIER.

No. SC-09-04

Supreme Court of the Cherokee Nation

July 8, 2010

APPEAL FROM THE DISTRICT COURT OF THE CHEROKEE NATION TAHLEQUAH, OKLAHOMACV-09-86HONARABLE BART FITE, TRIAL JUDGE

Before: Darell R. Matlock, Jr., Chief Justice, Darrell Dowty Justice, Kyle B. Haskins, Justice, James G. Wilcoxen Justice, Troy Wayne Poteete, Justice Concurring: Chief Justice Darell R. Matlock, Jr., Justice Darrell Dowty Justice Kyle B. Haskins Recused: Justice James G. Wilcoxen

JUSTICE TROY WAYNE POTEETE

The Appellant/Claimant, (hereafter Claimant)Sheila Sitzman, was an employee of Respondent/Appellee(hereafter Respondent), Cherokee Nation Enterprises.On June 2, 2006, in the course and scope of her employment, she sustained an injury to her neck and spine.Claimant received medical treatment for her injuries.She gained a written evaluation of a medical expert of her own choosing which indicated a partial permanent disability of 25%.She was ultimately evaluated by the employer/Respondent's chosen medical expert who provided a written report indicating a partial permanent disability of 11%.Pursuant to Section 7(c) of THE WORKER'S COMPENSATION ACTAS AMENDED, Legislative Act 31-05, and the medical report of its chosen medical expert, RespondentCherokee Nation Enterprises, made a final decision on the compensation to be paid to the Claimant, Sheila Sitzman.Claimant did not agree with Respondent's determination of 11% partial permanent disability.Pursuant to the provisions of Section 48(A)(1) of "THE WORKER'S COMPENSATION ACTAS AMENDED", Legislative Act 31-05, Claimant timely filed her dispute and request for arbitration with Respondent's Director of Human Resources.

The dispute was tried before the Respondent's designated Arbitrator, Jim D. Filosa.The Claimant offered the written medical report of her chosen medical expert, Dr. Kenneth R. Trinidad, concerning her injuries and permanent partial disability and disfigurement claims.Respondent objected to the admission of the Trinidad report, as to the probative value concerning his finding of separate permanent impairment to the thoracic spine; no other objections were offered.The Arbitrator overruled the Respondent's objection and admitted the written report of Claimant's medical expert as Claimant's ExhibitNo. 1.

Respondent did not otherwise object to the introduction of the written report of Claimant's medical expert and the Arbitrator considered the report in making his determination.

The Arbitrator determined that Claimant had sustained 25% permanent partial disability and submitted his supplemental/corrected Order awarding benefits to the Claimant based on that determination.

The Respondent filed its Amended Petition for Judicial Review of the Arbitrator's Award in Cherokee Nation District Court on April 28, 2009.The District Court determined that the Arbitrator erred in admitting the medical report of Claimant's medical expert during the Arbitration proceeding, and entered an Order accordingly.From that Order entered by the District Court on July 31, 2009, the Claimant lodges this appeal.

Issue

We are asked to determine whether the report of the Claimant's medical expert is admissible at arbitration under Legislative Act 31-05 "THE WORKER'S COMPENSATION ACTAS AMENDED" and Legislative Act 25-03 "THE UNIFORM ARBITRATION ACT AS ADOPTED", or whether these statutes limit the consideration to the report of the medical expert, chosen by the Respondent.

Standard of Review

The question before us is one of statutory construction; whether the District court erred in its legal conclusion that "THE WORKER'S COMPENSATION ACTAS AMENDED" and Legislative Act 25-03 "THE UNIFORM ARBITRATION ACT AS ADOPTED" prohibit the Arbitrator from admitting the medical report of Claimant's medical expert.Because the question before us is one of statutory interpretation, this Court reviewed "de novo"the District Court's legal conclusions.Smith v. Election Commission SC-09-03.

Discussion

The Respondent's sole allegation of error presented in its appeal to the District Court was that the Arbitrator allowed into evidence the medical report of Claimant's medical expert, Dr. Kenneth R. Trinidad.Respondent contended that the statutes allow only consideration of medical experts chosen by the employer.The Trial Court concurred with this interpretation of the statute and entered its Order dated July 31, 2009, reversing the Arbitrator and, in effect reinstated the Respondent's final decision of compensation for the Claimant's claim for permanent partial total disability and disfigurement.

The language of Legislative Act 31-05 "THE CHEROKEE NATION WORKER'S COMPENSATION ACTAS AMENDED"Section 47(A)(3) states in pertinent part:

"A Calculation of the percentage of permanent partial disability shall be made by the designated third party administrator or the physician of the employer's choice."(emphasis added)

The Respondents request that we determine that this language prohibits the use of a second doctor's opinion when the employee exercises his or her right to an appeal under Section 48(A) of this Act, which states in pertinent part:

"A final decision madeàà..may be reviewed through arbitration pursuant to this section and the Cherokee Nation Uniform Arbitration Act."

Our decision must be guided by the overall legislative scheme set out of Legislative Act 31-05 "THE CHEROKEE NATION WORKER'S COMPENSATION ACTAS AMENDED" and Legislative Act 25-03 "THE UNIFORM ARBITRATION ACT AS ADOPTED", with particular attention to Section 15 of Legislative Act 25-03 "THE UNIFORM ARBITRATION ACT AS ADOPTED" which states in pertinent part:

"The authority conferred upon the arbitrator includes the power...