Thomas v. Elephant Run, 72511

• Decision Date: 09 July 1991
• Docket Number: No. 72511,72511
• Parties: Chester THOMAS, Petitioner, v. ELEPHANT RUN, American General Fire & Casualty and The Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 496

814 P.2d 496

1991 OK 72

Chester THOMAS, Petitioner, v. ELEPHANT RUN, American General Fire & Casualty and The

Workers' Compensation Court, Respondents.

No. 72511.

Supreme Court of Oklahoma.

July 9, 1991.

Certiorari to the Court of Appeals, Division III; Appeal From Three Judge Panel of the Oklahoma Workers' Compensation Court; Ben P. Choate, Jr., Trial Judge.

Petitioner brought a claim for work-related injury. After hearing on temporary total disability (TTD) the trial judge awarded a lump sum for past TTD covering about one year and for a period not to exceed 150 weeks during continuance of the TTD. A three judge panel vacated in part, taking away about 30 weeks of past TTD. The Court of Appeals (COA) initially ruled the panel decision unsupported by any competent evidence. It reinstated the trial judge's decision. On rehearing the COA reversed itself, ruling competent evidence existed to support the panel's decision apparently in the form of medical report(s) it determined might show the TTD during the relevant 30 week period was due to an injury predating the work-related injury. HELD: Certain medical reports apparently relied on by the COA to rule competent evidence existed to support the decision of the panel were never admitted into evidence and could not be considered by the panel in determining the matter under the mandate of Rule 19 of the Workers' Compensation Court Rules, 85 O.S.Supp.1987, Ch. 4, App. The only medical evidence (reports from two doctors) admitted at the TTD hearing unequivocally supported an award of TTD during the relevant time period. Although part of the evidence was objected to by respondent as not containing a history of the work-related injury the evidence was in substantial compliance with Rule 20 of the Workers' Compensation Court Rules and because it stood unrefuted by any opposing evidence from respondent no competent evidence existed supporting the panel's decision taking 30 weeks of TTD from petitioner.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; THREE JUDGE PANEL'S DECISION REVERSED IN PART, AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

Bill Settle Settle & Landrum, Muskogee, for petitioner.

Dale F. Whitten Whitten, Davies and Layman, Tulsa, for respondents Employer and Insur. Carrier.

LAVENDER, Justice:

This case requires us to answer three questions: 1) may medical reports never offered or admitted into evidence at a hearing to determine temporary total disability (TTD) be considered by a three judge panel when reviewing a trial judge's decision to award TTD; 2) was a medical report admitted into evidence to support a claim of work-related temporary total disability (TTD) from August 28, 1987 to January 15, 1988 in substantial compliance with Rule 20 of the Workers' Compensation Court Rules, 85 O.S.Supp.1987, Ch. 4, App.; ¹ and 3) if so, was there any competent evidence to support a decision of a three judge panel of the Workers' Compensation Court that petitioner was not entitled to TTD during this time period? We answer the first and third questions in the negative and the second in the affirmative.

We initially note the first two issues have not been adequately framed by the parties in their appellate submissions. We must address them, however, because the ultimate issue for review is whether the panel-substituted decision taking away TTD during the relevant time period is supported by any competent evidence. See Parks v. Norman Municipal Hospital, 684 P.2d 548, 552 (Okla.1984) (when a panel-substituted decision is tendered for corrective appellate relief, it must be reviewed by applying the any-competent-evidence test of correctness). ² To decide this issue we must determine what competent evidence was before the panel.

By order filed February 10, 1988, a trial judge found petitioner sustained a work-related injury to his right arm on August 13, 1986 while employed at Elephant Run Restaurant (respondent) and awarded TTD for a five week period in May and June 1987. A Form 10, Pretrial Stipulation Offered By Respondent, had earlier been filed which admitted petitioner sustained an accidental injury in the course of employment. Future TTD and permanent disability, if any, were reserved. ³ The February 10th order appears to have been the result of an agreement between the parties and it was not appealed. ⁴ Petitioner requested additional TTD which was heard on August 18, 1988.

Petitioner was the only witness to testify. He testified his arm was injured while working as a chef for respondent when he attempted to open a freezer door that was frozen shut. Surgery was performed on his wrist in June 1988 for what was eventually diagnosed as carpal tunnel syndrome. ⁵ Petitioner continued to work for respondent after the injury until February 1987 and had intermittent work with other employers during the summer of 1987. He did not work from August 28, 1987 until the date of hearing in August 1988.

On cross-examination testimony was elicited that appears to show petitioner was seen in an emergency room on August 2, 1986 and by Dr. R.P. (petitioner's treating physician) on August 6, 1986 with complaints of pain in his right arm, shoulder and leg. The testimony was elicited by questions referring to a medical report of Dr. R.P. dated August 21, 1987, never admitted into evidence, but contained in the workers' compensation court file, as an attachment to a form previously filed by petitioner. The circumstances surrounding the apparent visit to an emergency room are never explained in the evidence, nor in any other material contained in the record. It is impossible to determine whether the emergency room and Dr. R.P. visits were, in actuality, related to a prior episode unrelated to petitioner's job or whether the testimony elicited merely reflects a mistake as to the date petitioner had the accident at his job while trying to open the freezer door.

All medical evidence at the hearing was submitted by petitioner. It included two reports of Dr. R.P., one dated March 9, 1988 and one July 21, 1988. Also submitted was a report dated January 15, 1988 of a Dr. S.P., a physician petitioner was referred to by Dr. R.P. Respondent offered no medical evidence. ⁶

Respondent objected to the two reports of Dr. R.P. as not containing any history of the work-related injury. In that only the report dated March 9, 1988 gives an opinion petitioner was TTD during the relevant time period we need not consider whether the objection to the other report of Dr. R.P. dated July 21, 1988 was valid. No such objection was interposed to the report of Dr. S.P. and respondent agrees here the report of Dr. S.P. suffices to support an award of TTD after January 15, 1988, the date of the report. Respondent voluntarily began paying TTD on June 10, 1988, the date of petitioner's surgery.

Intertwined with the objection to the reports of Dr. R.P. was the argument the August 21, 1987 report of Dr. R.P., contained in the court file, but never offered or admitted at the August 18th hearing on TTD, somehow raised the question of whether petitioner's TTD during the relevant time period (August 28, 1987 to January 15, 1988) was caused by the unexplained event which apparently necessitated a trip to the emergency room on August 2, 1986. The trial court admitted all of petitioner's medical evidence, taking note of the objection. Although no specific ruling was made by the trial judge the objection was obviously rejected because the trial judge awarded TTD during the relevant time period.

Respondent then sought review from the panel. Although never once mentioned during the hearing of August 18, 1988 and, consequently, never offered or admitted at the hearing before the trial judge, respondent attached to its review papers a November 17, 1987 report of Dr. R.P. contained in the court file, which respondent argues here also raised the same question whether TTD during the relevant time period was caused by the earlier unexplained event. ⁷ Respondent also attached to its review papers submitted to the panel the unadmitted August 21, 1987 report of Dr. R.P.

Initially, we must determine whether either of these reports could properly be considered in the determination of whether to award TTD during the relevant time period. The answer is found in Rule 19 of the Workers' Compensation Court Rules. Rule 19, in part, provides that medical reports sought to be used as evidence in a hearing before a trial judge be attached by a party to an appropriate form (e.g. Form 9, Motion of Claimant to Set for Trial or Form 10, Pretrial Stipulation Offered by Respondent). ⁸ Rule 19 further provides in pertinent part, "[t]he attached medical report shall not be considered as part of the evidence before the Court unless it is admitted at the subsequent trial. " We have generally indicated in regard to the 1981 version of Rule 19 [85 O.S.1981, Ch. 4, App.], "[a]bsent an agreement or waiver, evidence in a workers' compensation case must be taken according to the rules." Howard v. T.G. & Y. Stores, Inc., 725 P.2d 1262, 1263 (Okla.1986). The record reflects no agreement to consider the unadmitted reports and we fail to see how there could be a waiver in this situation. Therefore, the reports could not be considered as part of the evidence in the case, unless their attachment to respondent's review papers to the three judge panel somehow allowed consideration notwithstanding Rule 19.

Review by a three judge panel of a trial judge's decision is required to be on the record made before the trial judge. 85 O.S.Supp.1986, § 3.6(A). The review does not authorize introduction of additional evidence. Parks v. Norman Municipal Hospital, supra, 684 P.2d at 550 f.n. 7. McSperitt v. Sooner Service, Inc., 431 P.2d 443, 444-445 (Okla.1967). Rule 28(A), specifically provides in part, "[a]ppeals to the three judge panel shall be strictly on the record made before the trial judge. No new evidence shall be allowed." ⁹...