Special Indem. Fund v. Stockton

• Decision Date: 12 October 1982
• Docket Number: No. 56509,56509
• Citation: 653 P.2d 194,1982 OK 119
• Parties: SPECIAL INDEMNITY FUND, Petitioner, v. John B. STOCKTON and the Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 194

653 P.2d 194

1982 OK 119

SPECIAL INDEMNITY FUND, Petitioner, v. John B. STOCKTON and the Workers' Compensation Court, Respondents.

No. 56509.

Supreme Court of Oklahoma.

Oct. 12, 1982.

Certiorari from the Court of Appeals, Division No. 1; Patrick C. ryan, judge.

Special Indemnity Fund appeals from a judgment of the Court of Appeals which affirmed award of 100% permanent total disability of Workers' Compensation Court to claimant who was continuously engaged in post-injury employment at time of award.

CERTIORARI HAS BEEN GRANTED; OPINION OF COURT OF APPEALS VACATED; CAUSE REMANDED TO WORKERS' COMPENSATION COURT WITH DIRECTIONS.

Steven Vincent, Fred Nicholas, Jr., Oklahoma City, for petitioner.

John B. Ballard II, Oklahoma City, for respondents.

BARNES, Vice Chief Justice:

We granted certiorari in this case to examine two questions of first impression, both requiring interpretation of the Workers' Compensation Act of 1977. The specific issues addressed are:

1. Can a claimant who has worked continuously since the occurrence of a work related injury and who is still employed at the time of the compensation hearing be classified as 100% totally and permanently disabled within the meaning of 85 O.S.1981 § 3(12)?

2. When a medical report in a worker's compensation case consists only of the history of the claimant's injuries and a conclusion as to the percentage of the disability, is it supported by "competent probative evidence" under 85 O.S.1981 § 17 that is sufficient to sustain an award of 100% permanent total disability?

John Burton Stockton, claimant, is a 59 year old male with a third grade education who has worked in the oil field his entire life. Mr. Stockton has sustained injuries as far back as 1942 to his hands, left leg, and low back, and has undergone several surgeries since 1942. In 1974 he combined his injuries against the Special Indemnity Fund and received $7,000.00. The latest injury occurred in August, 1979, when both low back and left leg injuries were sustained. Mr. Stockton received compensation for the 1979 injuries and continued his employment with Astro Well Service as a driller running a brake. He testified at the hearing of September 23, 1980, that the drilling work required him to bend over and raise up and to be on his feet all day using both hands. He further testified that he "couldn't make it", stating he had cramps in his legs and elbows and that his back would "bother him all the time" and that he subsequently discontinued employment with Astro. He took a position as a driver and stated he was supposed to work seven days a week but was only able to work two-thirds of the time. His work included a 300-mile round trip auto drive between Oklahoma City and Anadarko and he stated that he had never been able to complete the entire trip in a day because he must frequently stop the car and get out so that his legs would quit cramping and his back would quit hurting. He testified that his wife was totally disabled; that he was the sole support of her; that he worked "when I can" and planned to discontinue work because he "just couldn't make it."

The medical evidence in the case consisted of two letters from the examining physicians. "Dr. M", witness for the Fund, recounted the history of Mr. Stockton's previous injuries, stating that the prior injuries, when combined with the accident of October 18, 1976, resulted in a 75% permanent partial disability to the body as a whole for the performance of ordinary manual labor, representing a 10% material increase. He further stated that claimant "injured his back" in August, 1979, and was awarded a 10% permanent impairment of the whole man and, due to the injury to the left leg, now had a 20% impairment of the left leg. "Dr. M" concluded that the combination of prior injuries and the most recent one made claimant a permanently and totally disabled person for the performance of ordinary manual labor. In a supplemental report "Dr. M" stated that the claimant is a "95% impaired man, from all causes." Counsel for the Fund later explained that "Dr. M's" earlier evaluation of the claimant as permanently totally disabled was based on the standard of the ability to perform ordinary manual labor, and that the later evaluation of 95% impairment was based on the definition currently provided in 85 O.S.1981 § 3(12).

"Dr. A", claimant's expert witness, also related the history of injuries sustained by Mr. Stockton and stated that it was his opinion that the prior injuries combined to an 85% permanent and partial impairment to the whole person. He stated that the material increase resulting from the August, 1979 injury was equal to 15% permanent partial impairment to the whole person, and by reason of combination, Mr. Stockton has sustained 100% permanent partial disability to the whole person. "Dr. A" later amended his letter to read that Mr. Stockton was "100% permanently and totally disabled," apologizing for his misstatement.

Neither physician made any statement of compliance with the Guides for Evaluation of Permanent Impairment, published by the American Medical Association in 1977 and adopted by the Workers' Compensation Court Rules under 85 O.S.1981 Ch. 4 App., R. 23. Nor did either physician discuss the examination and testing procedures by which their conclusions were reached, as required by Rule 20, supra. Finally, neither physician acknowledged the fact that Mr. Stockton was currently employed nor made any reference to his ability to continue his employment.

The Workers' Compensation Court found Mr. Stockton to be 100% totally and permanently disabled and adjusted his compensation rate accordingly. The Court of Appeals, Division 1, affirmed the award, finding that the lower decision was reasonably supported.

I. THE FACT THAT A CLAIMANT HAS BEEN CONTINUOUSLY EMPLOYED SINCE THE TIME OF AN INJURY FOR WHICH COMPENSATION IS SOUGHT UNDER THE WORKERS' COMPENSATION ACT OF 1977 CREATES A REBUTTABLE PRESUMPTION THAT THE CLAIMANT IS NOT PERMANENTLY AND TOTALLY DISABLED WITHIN THE MEANING OF 85 O.S.1981 § 3(12).

In 1977 the Oklahoma Workers' Compensation Law underwent sweeping reforms. Among other new provisions, the legislature provided a clear definition of total permanent disability:

"Permanent total disability" means incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee is or becomes physically suited and reasonably fit by education, training or experience; loss of both hands, or both feet or both legs, or both eyes, or any two thereof, shall constitute permanent total disability." 85 O.S.1981 § 3(12).

This definition abandons the standard of ordinary manual labor or mechanical labor which had been previously utilized by the Oklahoma courts, and focuses only on the purely economic aspects of whether the employee has been removed completely from the job market by his injury. 12 Okla. City U.L.Rev. (1978). It is consistent with our previous interpretation of the philosophy of a program for compensation of injured workers. In Service Pipeline Company v. Cargill, 289 P.2d 961 (Okl.1955), we said, "The purpose of the workmens' compensation law is to indemnify the injured workman for loss of earning power and disability to work and not to indemnify him for a physical ailment." Id. at 962.

Application of the 1977 definition of permanent total disability to the facts of this case produces a result that is inconsistent and illogical on its face. The classification of Mr. Stockton as 100% permanently totally disabled, even though he has been continuously engaged in gainful employment since the August, 1979 injury is a striking contradiction to the precise language of § 3(12) which says in pertinent part: "inability ... to earn any wages in any employment." (emphasis added).

Prior to the 1977 revision by the legislature, the standard for total permanent disability was established judicially as the statutes provided no definition. This court employed a test of whether a person was able to perform ordinary manual labor. Even under this standard we utilized earning capacity as one of the criterion. "Ordinarily the disability cannot be classified as total under Workmens' Compensation Law where earning power is not wholly destroyed." Dierks Lumber and Coal Company v. Lindley, 182 Okl. 185, 77 P.2d 44 (1938). We summarized the rule and included specific exceptions in McClure v. Special Indemnity Fund and State Industrial Court, 475 P.2d 811 (Okl.1978). " 'Total permanent disability' within the terms of workers' compensation law is not synonymous with total incapacity or total dependence, but means lack of ability to follow continuously some substantially gainful occupation without serious discomfort or pain and without material injury to health or danger to life." Id at 812.

Thus, even when the standard applied was merely a question of whether an individual could perform ordinary manual labor, our courts consistently examined the retained earning capacity of the claimant. However, the range of persons eligible for classification as 100% permanently totally disabled under the old standard was significantly greater than it is under the very precise wording of the 1977 provision. Because the 1977 provision is written in terms of "any employment," those workers who are no longer capable of performing their previous duties (i.e., an oilfield driller) may be disqualified for a permanent disability rating if they are, in fact, physically suited for other employment (i.e., a driver, desk job, etc.). We have said that a court is not justified in ignoring the plain words of a statute. Allgood v. Allgood, 626 P.2d 1323 (Okl.1981). Consequently, evaluation for permanent total disability can now be accurately made only after consideration of the claimant's ability to earn any wages in any employment for which the worker is suited and reasonably fit.

Mr. Stockton testified that he...