Special Indem. Fund v. Choate

• Decision Date: 23 February 1993
• Docket Number: No. 69981,69981
• Citation: 1993 OK 15,847 P.2d 796
• Parties: SPECIAL INDEMNITY FUND, Petitioner, v. Troy F. CHOATE, and the Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 796

847 P.2d 796

1993 OK 15

SPECIAL INDEMNITY FUND, Petitioner, v. Troy F. CHOATE, and the Workers' Compensation Court, Respondents.

No. 69981.

Supreme Court of Oklahoma.

Feb. 23, 1993.

Certiorari to The Court of Appeals, Division IV, Proceeding to Review an Order of the Oklahoma Workers' Compensation Court; Bill V. Cross, Trial Judge.

Worker obtained separate awards against employer for two cumulative trauma injuries (hearing and respiratory impairment). A claim was then filed against the Special Indemnity Fund (Fund) asserting combination of the injuries resulted in a material increase in impairment, which was awarded. Fund appealed claiming lack of jurisdiction for an award against it asserting worker was not a physically impaired person under pertinent statutes by virtue of the purported fact both injuries occurred simultaneously, that the two injuries initially should have been combined against the employer, the trial tribunal order was fatally defective because no ruling was made on a statute of limitation defense and the trial tribunal erred by sustaining an objection to its medical evidence. The Court of Appeals modified the award downward ruling workers' medical evidence was not competent to support the amount of the award because it failed to comply with the AMA Guides. Worker petitioned for certiorari contending error in modifying the award. Held: Based on the facts shown by this record and applicable law the trial tribunal had jurisdiction, the injuries could be combined against the Fund and no reversible error occurred in regard to Fund's limitation defense. However, error occurred in sustaining the objection to Fund's medical evidence and we must, therefore vacate and remand for reconsideration. Further, the Court of Appeals erred in mandating use of the AMA Guides.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; WORKERS' COMPENSATION COURT ORDER VACATED AND CAUSE REMANDED.

John R. Schneider, Jim Seasholtz, Oklahoma City, for petitioner.

Richard A. Bell, Norman, for respondent Choate.

LAVENDER, Vice Chief Justice.

We hold in this case a trial tribunal of the Oklahoma Workers' Compensation Court (OWCC) had jurisdiction over a claim brought by, Troy F. Choate (Choate) against the Special Indemnity Fund (Fund) to combine two cumulative trauma injuries against it for a material increase, the two injuries were combinable against the Fund and no reversible error occurred because the trial tribunal did not expressly determine a statute of limitation defense. However, we hold the trial tribunal erred by sustaining an objection to Fund's medical evidence. Thus, we must vacate the order awarding a material increase against the Fund and remand to the trial tribunal for reconsideration. We also hold the Court of Appeals erred in ruling Choate's medical evidence was not competent for failure to comply with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). ¹

I. FACTS AND PROCEDURAL HISTORY ²

On October 16, 1985 Choate filed a claim for respiratory injury against his employer. In the form filed Choate answered "yes" to the question of whether he was a physically impaired person, claiming a hearing loss from 1983. A hearing loss case was also filed about the same time. ³ The two matters were heard together and resulted in separate awards against the employer of 15% permanent partial disability to the body as a whole due to injury to the respiratory system and 15% binaural hearing loss. ⁴ Both orders of the trial tribunal reflect the last date of exposure to noise or respiratory irritants was on August 28, 1983. The transcript of the hearing between Choate and his employer reflects a statute of limitation defense was raised by employer and the two orders awarding compensation show the trial tribunal ruled neither claim was barred by the statute of limitation.

In regard to the statute of limitation defense litigated in the context of the separate claims against the employer the evidence was conflicting. On the one hand evidence offered by Choate was to the effect he did not become aware problems with his respiratory system and hearing were permanent or work related until a few weeks prior to seeing his present attorney and being examined by a physician retained by his attorney. The record reflects the examination by this physician took place on September 26, 1985. On the other hand evidence was presented by employer to the effect Choate was aware or should have been aware his problems were work related at a much earlier time through purported knowledge garnered through workplace physical examinations. As we view the evidence submitted by the employer it is somewhat equivocal as to just what information was actually imparted to Choate concerning his condition(s) or their work-relatedness. Obviously, the trial tribunal who tried the matters against the employer viewed the evidence similarly because he resolved the factual dispute against the employer by ruling the claims were not barred by the applicable statute of limitation.

On March 11, 1987 Choate filed a claim against Fund asserting he was a physically impaired person by virtue of a 1983 hearing loss at the time of his latest injury to the respiratory system. The date of last exposure was asserted to be August 25, 1983. Fund's answer raised the following pertinent defenses: 1) denial of physically impaired person status, 2) if Choate was physically impaired, the two injuries were not combinable against it, 3) combination of the two injuries resulted in no material increase in impairment, and 4) a statute of limitation defense.

At the hearing on November 2, 1987 Fund stipulated to the two previous awards against the employer and the relevant percentages of the awards. It also raised the limitation defense allegedly based on the fact the claim was filed more than two years after last exposure. ⁵ Fund also denied previously impaired person status, asserting the two injuries occurred simultaneously.

Choate was the sole live witness. He testified he was fifty-eight years old and to continuing hearing and respiratory problems. He stated he worked on his small farm, he was otherwise not gainfully employed and although he had applied for other employment he had obtained none. No evidence was presented concerning when Choate was aware or should have been aware of a causal connection between his injuries and the workplace.

Choate offered the medical report of Dr. G.C.M., which was admitted over a probative value objection. The basis of the objection was the report "fails to state an opinion as to what [Choate's] current state of impairment might be". Fund offered the report of Dr. L.Y. over probative value and competency objections based on the assertion the report did not indicate pulmonary function tests were conducted. The report was admitted subject to the objection(s), which were taken under advisement.

Dr. G.C.M. opined the earlier 15% impairment ratings to the respiratory system and hearing were "fair and reasonable at the time" and combination of the two resulted in a 15% material increase in impairment. Dr. G.C.M. also opined the "first injury [ ] was to the lungs and upper respiratory system" and the "second injury [ ] was to [the] ears". Dr. L.Y. opined Choate sustained 15% permanent partial disability to the body as a whole due to his "first injury" to the lungs and upper respiratory system and "[d]ue to the latest injury" Choate sustained a 15% binaural hearing loss. He, however, believed combination of the two resulted in a 24% permanent partial impairment to the body as a whole, which represented no material increase in impairment to that already awarded against the employer.

In his order the trial tribunal awarded a 15% material increase in permanent partial impairment to the body as a whole. Even though both doctors' reports opined the first injury was to the respiratory system, the trial tribunal ruled Choate was a physically impaired person by virtue of the hearing loss. He also sustained the competency and probative value objections to Fund's medical report.

On appeal Fund raised six issues: 1) because of the purported fact the two injuries occurred simultaneously Choate did not meet the statutory requirements for filing a claim against Fund, which mandated one of the injuries be subsequent to the other, 2) this failure to meet the statutory requirements deprived the OWCC of jurisdiction and deprived Fund of due process because an award was entered without jurisdiction, 3) the OWCC was required to make findings establishing the dates of the two impairments and in the absence of such findings, failed to establish its jurisdiction, 4) Choate improperly split his claim against his employer and the two injuries should have been combined against the employer, 5) the order of the trial tribunal was fatally defective because there was no ruling on the limitation defense, and 6) error occurred in sustaining the objection to Fund's medical evidence. ⁶

In its opinion the Court of Appeals recited the parties stipulated the two injuries occurred simultaneously. Our review of the record shows no such stipulation was made. The Court of Appeals then apparently determined simultaneous injuries were combinable against the Fund, citing 85 O.S.Supp.1988, § 171 in a footnote which embodied a 1986 amendment to the definition of physically impaired person. It otherwise did not rule on the issues raised by Fund. Instead, it determined Choate's medical evidence was incompetent because it did not conform to the Combined Values Chart of the AMA Guides and that Choate had a 28% impairment as a result of combining the two injuries using said Chart. ⁷ The Court of Appeals did so even though no party raised an issue concerning the use or non-use of the Combined Values Chart nor an appellate issue concerning the competency or probative value of Choate's medical evidence. Choate...