THOMAS v. BURGGRAF RESTORATION

THOMAS v. BURGGRAF RESTORATION
2001 OK CIV APP 110
31 P.3d 402
72 OBJ 2767
Case Number: 95541
Decided: 08/07/2001
Mandate Issued: 09/06/2001
DIVISION IV
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

ESTHER THOMAS, Petitioner
v.
BURGGRAF RESTORATION, STATE INSURANCE FUND and THE WORKERS' COMPENSATION COURT, Respondents

PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT

HONORABLE RICHARD L. BLANCHARD, TRIAL JUDGE

SUSTAINED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS

James E. Lowell, Tulsa, Oklahoma, for Petitioner
Candace Johnson, Tulsa, Oklahoma, for Respondents

RAPP, Judge

¶1 Claimant, Esther Thomas, appeals an order of a three-judge panel partially vacating the trial court's order and sustaining the motion to terminate temporary total disability benefits of Employer, Burggraff Restoration, Inc.

BACKGROUND

¶2 It is undisputed that Claimant sustained a work-related injury to her right leg (knee) and left leg (knee) on April 1, 1998, while employed by Employer. Employer commenced payment of temporary total disability on approximately June 8, 1998. The trial court appointed an independent medical examiner, Dr. James Griffin, on September 22, 1998, to determine whether Claimant was temporarily totally disabled and needed additional medical treatment, and to make recommendations regarding treatment.

¶3 Dr. Griffin opined in his November 3, 1998, medical report that Claimant was temporarily totally disabled and in need of additional medical treatment. He also noted that she had a mass on her right thigh but was uncertain as to its origin. Dr. Griffin began treating Claimant and determined she was in need of arthroscopic surgery. During the preoperative tests, the hematologist determined Claimant had thrombocytopenia or a low platelet count. Dr. Griffin postponed the scheduled knee surgery on August 26, 1999, because of this medical condition and stated in his August 26, 1999, notes that once the hematologist "feels it is safe to go ahead with surgery, we will plan on going ahead with arthroscopy at that point."

¶4 Claimant had at least four office visits with Dr. Griffin after the August 26, 1999, examination.

¶5 Employer filed its Form 11, Motion to Terminate Temporary Compensation, as required by Rule 15(C)(1), of the Workers' Compensation Court Rules, 85 O.S. Supp. 2000, ch. 4, app., on August 28, 2000, stating [31 P.3d 404] Claimant was receiving treatment for an unrelated condition and requesting overpayment of temporary total disability from August 26, 1999. Employer also denied it was responsible for benefits attributable to Claimant's thrombocytopenia.

¶6 After a hearing on June 27, 2000, the trial court determined Claimant was still temporarily totally disabled and sustained Claimant's objection to Employer's motion to terminate temporary total disability benefits. The trial court reserved the issue of permanent disability, if any, for a future hearing. The trial court also ordered Employer to provide Claimant with the necessary medical care and treatment to her right leg (knee) and left leg (knee), including surgery. The trial court also held that Employer was not responsible for the medical expenses associated with Claimant's thrombocytopenia or the cyst on her right thigh.1

STANDARD OF REVIEW

¶8 The material facts presented here are not in dispute and therefore this case presents a question of law. Rhea v. Southwest Cupid,

ANALYSIS

¶9 The issue presented is whether a medical condition not caused by a claimant that postpones a claimant's ability to receive medical treatment for the work-related injury precludes a claimant from receiving previously awarded temporary total disability benefits. This Court answers in the negative.

¶10 Claimant argues she is unable to work and therefore temporarily totally disabled because of her work-related injury, and not because a subsequently discovered medical condition prevented her from having surgery. Thus, Claimant contends the three-judge panel erred in terminating her temporary total disability. Employer argues that Claimant is no longer entitled to temporary total disability benefits because her intervening medical condition, thrombocytopenia (low platelet level), is preventing her from obtaining the medical treatment needed to reach maximum medical improvement. Employer does not assert that Claimant caused the condition preventing treatment.

¶11 Although the Oklahoma Supreme Court has not directly addressed this issue, it has refused to terminate temporary total disability benefits when a claimant's pregnancy prevented her from having or continuing her medical treatment. In Macklanburg-Duncan Co. v. Wimmer,

¶13 Temporary total disability benefits are awarded during the worker's "healing period, or that period of time following an accidental injury when an employee is totally incapacitated for work due to illness resulting from injury." Bodine v. L. A. King Corp.,

¶14 The undisputed evidence before this Court shows that Claimant is in need of surgery due to the work-related injury and that she is and will be temporarily totally disabled until she has this surgery. Employer has failed to present any evidence that Claimant is not temporarily totally disabled. It is also important to note that the three-judge panel did not have any evidence before it that Claimant's refusal to accept the offered medical treatment was arbitrary or unreasonable. In fact, all the evidence was to the contrary.

¶15 This Court finds that Claimant's medical condition, discovered while attempting to submit to Employer's offered medical treatment, does not relieve Employer from its statutory responsibility for paying the temporary total disability benefits that the work-related injury caused. Her work-related injury caused her to need the surgery and to be temporarily totally disabled, not the subsequently discovered medical condition. Employer did not adduce any evidence that Claimant arbitrarily or unreasonably refused the offered treatment, but rather the evidence shows she was acting upon advice of the court-appointed independent medical examiner.

¶16 This Court reverses the three-judge panel's Order to the extent it sustains Employer's motion to terminate temporary total disability and remands to the three-judge panel with instructions to reinstate the trial court's order granting temporary total disability. The remainder of the three-judge panel's order affirming the trial court's order is sustained.

¶17 SUSTAINED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

¶18 STUBBLEFIELD, P.J., and TAYLOR, J., concur.

FOOTNOTES

1Claimant did not appeal this finding.

2See also Jennings v. Express Temporary Serv., 2000 OK CIV APP 39, ¶ 17, 999 P.2d 1115, 1119, where the evidence did not warrant a finding that the claimant's continuing temporary total disability resulted from an unreasonable refusal to submit to a simple plan of treatment. Thus, the Court of Civil Appeals found it was error to terminate the temporary total disability during the employee's pregnancy and remanded to the three-judge panel for an award of the full amount of her permanent partial disability and the temporary total disability.