Special Indem. Fund v. Estill, 87695

• Decision Date: 08 July 1997
• Docket Number: No. 87695,87695
• Citation: 1997 OK 99,943 P.2d 606
• Parties: SPECIAL INDEMNITY FUND, Petitioner, v. Richard S. ESTILL and The Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 606

943 P.2d 606

1997 OK 99

SPECIAL INDEMNITY FUND, Petitioner, v. Richard S. ESTILL and The Workers' Compensation Court, Respondents.

No. 87695.

Supreme Court of Oklahoma.

July 8, 1997.

Georgiana Peterson, Henry A. Meyer, III, Oklahoma City, for Petitioner.

W.C. Doty, Norman, for Respondents.

ALMA WILSON, Justice:

¶1 The question presented on certiorari is whether the evidence was sufficient to prove that the claimant was a physically impaired person by an obvious and apparent loss of use of a major member of the body pursuant to 85 O.S.1991, § 171. We answer in the affirmative. We vacate the opinion of the Court of Civil Appeals and affirm the Workers' Compensation Court award against the Special Indemnity Fund.

¶2 Richard S. Estill, respondent (Estill), was eight years old in 1951 when he was diagnosed with polio. Five years later, when Estill was thirteen years of age, his legs and feet would drag when he walked, he had trouble with his speech, and he had difficulty with his hand and arm coordination. Notwithstanding the polio-caused condition, Estill worked for the Oklahoma Department of Human Services for twenty-six years, primarily as a tractor-trailer truck driver hauling commodities.

¶3 During the course of employment, Estill suffered two on-the-job injuries that were adjudicated by the compensation court. ¹ The first injury occurred in February, 1991, when Estill was standing on the tire of a semi-truck tightening a bolt under the hood and fell on his left side. After this injury, Estill suffered greater pain in his left leg, greater loss of use of his left arm and the trembles in his left arm worsened to a shaking, resulting in a 2.16% permanent partial disability to the body as a whole. The second occurred in July, 1991, when Estill fell on his right shoulder and wrist in the commodity warehouse. After this injury, Estill suffered loss of use of his right arm, resulting in a 4.3% permanent partial disability to the body as a whole.

¶4 Estill's polio-caused impairments seriously worsened after the two injuries in 1991, and he had to retire from the Department of Human Services in 1993 because of his inability to perform any duties. By 1995, Estill had difficulty eating solid foods, needed a walker to walk, and had a substantial loss of use of his arms and hands. He filed a claim for permanent total disability against the Special Indemnity Fund, petitioner (Fund). At trial, Estill presented a lay witness who testified that after Estill had polio she observed that his legs and feet would drag when he walked and that he had difficulty with his speech and his hand and arm coordination and that his polio-caused impairments have worsened substantially since 1991. ² Estill also presented medical evidence that the loss of use of his left arm and left leg caused by his childhood polio was obvious and apparent and pre-existed his work-related injuries and that because of his polio-caused impairment he has a 50% disability to the body as a whole. ³ The Fund presented medical evidence that Estill has a 15% disability to the body as a whole due to his polio-caused impairment to his left leg, arm and hand, but the impairment is not obvious and apparent. ⁴ The Workers' Compensation Court awarded Estill benefits from the Special Indemnity Fund for permanent and total disability and a three-judge panel of the compensation court affirmed the award. ⁵

¶5 The Court of Civil Appeals found that there was little evidence that the polio-caused impairments were obvious and apparent before the work-related injuries and that the evidence was more supportive of the fact that the polio symptoms were aggravated by the work-related injuries and only became obvious and apparent thereafter. The Court of Civil Appeals held the evidence was insufficient to establish that Estill was a physically impaired person by reason of his loss of use of his left arm and leg that would be obvious and apparent to an ordinary lay person and reversed the award.

¶6 On certiorari, Estill asserts that the Court of Civil Appeals totally disregarded the lay testimony that he had an observable disease-caused physical impairments, as well as the medical evidence that his childhood polio caused permanent disability to the body as a whole. Estill argues that the any-competent-evidence test in Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okla.1984), ⁶ governs this matter, but even under the independent-review test in Special Indemnity Fund v. Scott, 652 P.2d 278 (Okla.1982), the Court of Civil Appeals may not totally ignore the evidence and facts. The Fund responds that the question on certiorari is whether the Court of Civil Appeals "made an appropriate 'weighing evidence' review." Citing Special Indemnity Fund v. Choate, 847 P.2d 796 (Okla.1993) and Special Indemnity Fund v. Scott, supra, the Fund contends that the Court of Civil Appeals correctly considered and weighed Estill's lay testimony and that the evidence supports a finding that the polio symptoms were not obvious and apparent until after the 1991 adjudicated injuries, hence Estill had no pre-existing obvious and apparent impairment and the Fund had no liability.

¶7 The basic rules governing awards against the Special Indemnity Fund, and appellate review thereof, have been in place for half a century. The Special Indemnity Fund Act ⁷ is remedial in nature and its provisions are liberally construed to effectuate the legislative purpose. ⁸ The provisions of the Special Indemnity Fund Act may be invoked where the claimant has a pre-existing condition that caused a loss of use of a member of the body and there is proof that the loss of use is sufficiently pronounced that an ordinary person could discover it. ⁹ Whether a claimant is a physically impaired person within the meaning of the Special Indemnity Fund Act is a question of fact to be determined by the compensation court from all the evidence. ¹⁰ Competent lay testimony alone or in conjunction with competent expert medical proof that the claimant had an obvious and apparent loss of use of a specific member of the body is sufficient evidence to prove the fact that the claimant is a physically impaired person under the Special Indemnity Fund Act. ¹¹ Where the claimant presents competent evidence that the pre-existing unadjudicated impairment affected, either in whole or in part, the use of a specific member of the body, the compensation court has jurisdiction to award Special Indemnity Fund benefits. ¹² And, all the evidence tending to prove the fact of physical impairment will be independently reviewed by the appellate courts to determine if the claimant is a physically impaired person. ¹³

¶8 The definition of "a physically impaired person" is set out in 85 O.S.1991, § 171, which reads:

For the purpose of Sections 171 through 176 of this title, the term "physically impaired person" is hereby defined to be a person who as a result of accident, disease, birth, military action, or any other cause, has suffered the loss of sight of one eye, the loss by amputation of the whole or a part of a major member of his body, or the loss of use or partial use of a major member such as is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession, or any disability which previously has been adjudged and determined by the Workers' Compensation Court including all separately adjudicated injuries and adjudicated occupational diseases even though arising at the same time.

(Emphasis added.)

¶9 Some fifty years ago, Special Indemnity Fund v. Keel, 196 Okla. 315, 164 P.2d 996 (1945), delineated the lay evidence needed to prove the fact that loss of use of a major member is obvious and apparent--it must be specific evidence directed to the fact. ¹⁴ Keel had been involved in an automobile accident in 1937, injuring his left shoulder and an on-the-job accident in 1943, injuring his right shoulder. During the proceedings on Keel's claim for compensation for the job-related injury, the Industrial Commission brought the Fund in as a party. Finding the prior injury to Keel's left shoulder impaired the use of his left arm, the Commission entered an award against the Fund. On appeal, the Fund contended the evidence did not bring Keel within the definition of "physically impaired person." The Keel Court agreed with the Fund, saying:

Two witnesses testified that he complained frequently of pain in his left shoulder while working and that they had observed a knot on his shoulder, although, on cross examination, they revealed they did not remember on what shoulder the knot existed. One of the witnesses was present and on the witness stand when claimant removed his shirt and exhibited his injured shoulder, but the witness could not determine on which shoulder he had previously seen the knot. They did not testify that they had noticed either by observation or examination that claimant had lost any use of said arm ... While we think it was proper for the Trial Commissioner to permit the exhibition of claimant's injury to him in aid of the testimony of other witnesses, yet such exhibition, standing alone, in this case involving a loss of use of a specific member by reason of an injury to the body, is not sufficient to take the place of specific evidence directed to this point.

(Emphasis added.)

¶10 Shortly after Keel, Special Indemnity Fund v. Hunt, 200 Okla. 1, 190 P.2d 795 (1948), explained that the Industrial Commission, an administrative fact finding board, must determine its jurisdiction and show the existence of jurisdiction of record; ¹⁵ and that definition of "physically impaired person" is a precedent to the Industrial Commission's jurisdiction over the Fund and, on appeal, the evidence thereon will be weighed and determined independently of the Commission's general finding of "physically impaired person"; ¹⁶ but, on appeal, the sufficiency of the evidence on...