Wilcoxson v. Woodward County Ems

• Decision Date: 08 April 2010
• Docket Number: Division No. 2.,678.Released for Publication by Order of the Court,No. 106,106
• Citation: 231 P.3d 1170,2010 OK CIV APP 50
• Parties: Edith Jane WILCOXSON, Petitioner/Appellant,v.WOODWARD COUNTY EMS, Compsource Oklahoma and the Oklahoma Workers Compensation Court, Respondents/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

231 P.3d 1170

2010 OK CIV APP 50

Edith Jane WILCOXSON, Petitioner/Appellant,v.WOODWARD COUNTY EMS, Compsource Oklahoma and the Oklahoma Workers Compensation Court, Respondents/Appellees.

No. 106,678.Released for Publication by Order of the Court

of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma,

Division No. 2.

April 8, 2010.

COPYRIGHT MATERIAL OMITTED

Proceeding to Review an Order of a Three-Judge Panel of the Workers' Compensation Court; Honorable H. Thomas Leonard, Trial Judge.

SUSTAINED.

Daniel J. Talbot, Halley & Talbot, Oklahoma City, OK, for Petitioner/Appellant.

Timothy E. Lurtz, Collins, Zorn & Wagner, Oklahoma City, OK, for Respondents/Appellees Woodward County EMS and Compsource Oklahoma.

OPINION BY DEBORAH B. BARNES, Presiding Judge.

¶ 1 Edith Jane Wilcoxson (Claimant) seeks review of an order of a three-judge panel of the Workers' Compensation Court, filed on December 10, 2008, affirming in part and modifying in part the trial court's order, which awarded Claimant eight weeks of temporary total disability (TTD) benefits for a neck injury she sustained while employed by Woodward County EMS (Employer). Based on our review of the record and applicable law, we sustain the three-judge panel's order.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On May 17, 2006, while working as a medic for Employer, Claimant sustained injuries when she transferred a “morbidly obese patient from gurney to bed.” ¹ Claimant received medical therapies and treatment for her lower back for several months, but ultimately underwent surgery on May 5, 2007 ² on her lumbar spine. Michael Wright, M.D. (Dr. Wright) stated in his report, dated November 21, 2007, that Claimant reached maximum medical improvement from “surgical intervention and post-operative rehabilitation” as to her lumbar spine on November 21, 2007.³ On December 27, 2007, Claimant filed her Form 3, alleging she sustained a work-related injury to her low back, both hips, right leg, right foot, and whole body, with an anatomic abnormality.

¶ 3 On July 17, 2008, Claimant filed an amended Form 3, adding a claim for a neck injury. The medical evidence of record as to Claimant's neck includes written reports by several physicians. For example, according to the April 9, 2008, written report ⁴ of Claimant's physician, J. Arden Blough, M.D. (Dr. Blough), Claimant had “increasing pain in her back and pain in her neck” after her work-related injury on May 17, 2006. Dr. Blough further stated that her low back and neck symptoms continued to worsen “over the following months.” On March 8, 2007, she was referred for an MRI of her neck (cervical spine), which indicated “disc bulges.” Her neck pain, according to Dr. Blough, continues and her range of motion is “restricted in all planes.” Dr. Blough's opinion, contrary to the opinion of Dr. Wright,⁵ is that Claimant is and has been temporarily totally disabled since May 17, 2006, and will remain so for an “undetermined amount of time pending further medical evaluation and treatment” of her cervical and lumbar spine.⁶

¶ 4 Employer's expert, John A. Munneke, M.D., D.D.S., made findings to the contrary. As stated in his July 23, 2008, written report, Claimant “at this time exhibits no objective evidence of disability or impairment to her cervical spine as a result of her accident....” ⁷

¶ 5 The trial court held a hearing on September 9, 2008, on the issue of TTD only. For the first time, Employer raised the defense of statute of limitations, contending more than two years had elapsed between the neck injury and the filing of a claim for the neck injury, and thus a claim for benefits for a neck injury was untimely. The trial court entered an order, filed on September 15, 2008, denying Employer's statute of limitations defense and finding that Claimant had sustained an accidental personal injury, arising out of and in the course of her employment, to her lumbar back and neck, and that the neck injury entitled her to a maximum of eight weeks of TTD benefits. ⁸ The issue of permanent partial disability benefits was reserved for a future hearing, and there is no evidence in the record ⁹ indicating that Claimant had surgery on her neck or that any physician recommended neck surgery.

¶ 6 Both parties filed a Request for Review on September 25, 2008, seeking review of the trial court's order by a three-judge panel. Claimant asserted the statute of limitation defense was not only tolled, but waived as never raised or pled prior to the date of trial, and that the eight-week TTD award was erroneous. Employer asserted its statute of limitation defense was valid, that Claimant suffered no job-related injury to her neck, and that Claimant should not be awarded any TTD benefits or medical treatment for her neck.

¶ 7 In an order filed on December 10, 2008, a three-judge panel modified in part and affirmed in part the trial court's order. It found that Employer “failed to plead the Statute of Limitations defense prior to trial and the defense is waived.” ¹⁰ The three-judge panel also found that Claimant's amended Form 3, adding the neck, was timely filed. The rest of the trial court's order-including the eight-week TTD benefit award-was affirmed.

¶ 8 Claimant seeks this Court's review, alleging the three-judge panel erroneously affirmed the trial court's award of only eight weeks of TTD benefits. We sustain.

STANDARD OF REVIEW

¶ 9 When this Court examines a Workers' Compensation Court's factual findings, we apply the any competent evidence standard of review. Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001 (citing Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548). Under the any competent evidence standard, this Court must simply “canvass the facts, not with an object of weighing conflicting proof to determine where the preponderance lies, but only for the purpose of ascertaining whether those facts support the tribunal's decision.” Oklahoma Gas & Electric Co. v. Black, 1995 OK 38, ¶ 6, 894 P.2d 1105, 1107 (citation omitted). “Record proof, on the basis of which the trier could have reached a contrary conclusion, has no legal impact upon the review process by which a workers' compensation court's finding is tested. It is only the absence of competent evidence that makes a tribunal's decision erroneous (as a matter of law) and hence amenable to appellate vacation.” Pauls Valley Travel Center v. Boucher, 2005 OK 30, ¶ 6, 112 P.3d 1175, 1179-1180 (footnotes omitted). Huffman v. General Motors Corp., 1991 OK CIV APP 17, ¶ 6, 811 P.2d 106, 108, citing Parks, notes that the trial judge's decision, once altered by the three-judge panel's reexamination, loses its viability and stands replaced by the decision which altered it. The three-judge panel's decision then becomes the order in the case and the only one subject to review by this Court.

¶ 10 Questions of law are reviewed de novo by this Court. American Airlines v. Hervey, 2001 OK 74, ¶ 11, 33 P.3d 47, 50. Under this standard, we have plenary, independent and non-deferential authority to determine whether the lower court erred in its legal rulings. Id.

ANALYSIS

I. Application of 85 O.S. Supp.2005 § 22(3)(d)

¶ 11 Claimant argues that her injury is not subject to the eight-week “nonsurgical soft tissue injury” limitation found in 85 O.S.2001 and Supp.2005 § 22(3)(d),¹¹ and, therefore, limiting her TTD benefits to eight weeks was contrary to law. We disagree.

¶ 12 The three-judge panel affirmed the trial court's award of eight weeks of TTD for injury to Claimant's neck. The record reveals that Claimant's neck injury occurred to her cervical spine and, specifically, to the spinal disks in her cervical spine.¹² Section 22(3)(d) states that “ ‘[s]oft tissue injury’ does not include any of the following: (1) Injury to or disease of the spine spinal disks, spinal nerves or spinal cord where corrective surgery is performed....” (Emphasis added.) In other words, the legislature specifically excluded from the definition of soft tissue injury injuries to the spinal disks where corrective surgery is performed. “[T]he Legislature will not be presumed to have done a vain and useless act in the promulgation of a statute, nor will an inept or incorrect choice of words be applied or construed in a manner to defeat the real or obvious purpose of a legislative enactment.” Wylie v. Chesser, 2007 OK 81, ¶ 19, 173 P.3d 64, 71 (quoting TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15). Therefore, the obvious import of this exclusionary language is that the legislature intended to include within the definition of soft tissue injury those injuries to the spinal disks where corrective surgery is not performed.¹³ Therefore, because corrective surgery was not performed to Claimant's neck,¹⁴ the injury is included within the definition of a soft tissue injury.

¶ 13 In Bed Bath & Beyond v. Bonat, 2008 OK 47, ¶ 12, 186 P.3d 952, 955, the Oklahoma Supreme Court stated in relevant part: “Section 22(3)(d) limits benefits to eight weeks for nonsurgical soft tissue injuries.” Therefore, the eight-week TTD award was properly made pursuant to the nonsurgical soft tissue injury limitation set forth in § 22(3)(d) and Bed Bath & Beyond v. Bonat.

II. Specificity

¶ 14 Claimant next argues that because the three-judge panel awarded eight weeks of TTD benefits without stating whether the award was being made pursuant to the soft tissue injury limitation under § 22(3)(d), the three-judge panel's order lacks the specificity required by 85 O.S. Supp.2005 § 26(B).¹⁵

¶ 15 Where the findings of fact and conclusions of law are too indefinite and uncertain for judicial interpretation, this Court, on appeal, will vacate the order for further proceedings. Dunkin v. Instaff Personnel, 2007 OK 51, ¶ 14, 164 P.3d 1057, 1061. However, “[m]eaningful review is facilitated” by an order of the Workers' Compensation Court where “the specific basis for its decision ... can be determined.” Dunkin, at ¶ 15, 164 P.3d at 1061....