EMERY v. CENTRAL OKLAHOMA HEALTH CARE

EMERY v. CENTRAL OKLAHOMA HEALTH CARE
2007 OK 28
158 P.3d 1052
Case Number: 102286
Decided: 05/01/2007

THE SUPREME COURT OF THE STATE OF OKLAHOMA

Sally Emery, Petitioner,
v.
Central Oklahoma Health Care, Clarendon National Insurance Company, and the Workers' Compensation Court, Respondents.

CERTIORARI TO COURT OF CIVIL APPEALS
DIVISION III

¶0 Claimant, who was previously adjudicated permanently and totally disabled, presented competent evidence that she has sustained a change of condition for the worse and requires additional medical treatment. She is not, however, entitled to additional benefits for temporary total disability because there is no evidence or argument that her disability will ever be less than permanent and total. The Workers' Compensation Court, Honorable Kenton W. Fulton, correctly ordered Employer to pay for Claimant's additional medical treatment and denied Claimant's request for additional compensation at the higher rate for temporary total disability.

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED
AND THE ORDER OF THE WORKERS' COMPENSATION
COURT IS SUSTAINED

Walt Brune, WALT BRUNE, P.C., Ponca City, Oklahoma, and Fred L. Boettcher and K. Wayne Lee, BOETTCHER LAW OFFICE, INC., Ponca City, Oklahoma, for Petitioner.
Gary G. Prochaska, FOSHEE & YAFFE, Oklahoma City, Oklahoma, for Respondents.

COLBERT, J.:

¶1 Claimant, Sally Emery, seeks certiorari review of an opinion of the Court of Civil Appeals which sustained an order of the Workers' Compensation Court denying her claim for additional temporary total disability benefits against Employer, Central Oklahoma Health Care. The Workers' Compensation Court found that Claimant had sustained a change of condition for the worse to her back and ordered Employer to provide additional medical treatment but denied further temporary total disability benefits. We hold that Claimant's status as permanently totally disabled allows for an award of additional treatment based upon proper evidence, but precludes a further award of benefits for temporary total disability.

¶2 Claimant sustained an injury to her lumbar back on October 16, 1997, while working as a nurse for Employer. The Workers' Compensation Court awarded her 20% permanent partial disability in May 1999. Claimant retired after the injury because of her health and began receiving social security disability benefits in 1999.

¶3 Claimant filed a claim the next year against the Multiple Injury Trust Fund and was found to be permanently and totally disabled based on the combination of the 1997 injury and a prior injury. Claimant and the Fund later agreed to convert that benefit to a lump sum of $81,000. Their joint petition to that effect was approved by the court on April 8, 2004, and Claimant received three $27,000 payments on April 8, 2004, October 8, 2004, and April 8, 2005.

¶4 On November 1, 2004, Claimant filed a motion seeking additional medical benefits and temporary total disability benefits based on a change of condition for the worse. Claimant's expert stated that she was temporarily totally disabled and needed medical treatment in the form of epidural steroid injections, while Employer's expert concluded that she had not sustained a change of condition for the worse and needed only continuing medical maintenance. The court-appointed and treating physician, Michael J. Carl, M.D., determined that Claimant had suffered an aggravation of her condition and recommended epidural steroid injections to stabilize her condition. Dr. Carl did not conclude that Claimant was temporarily totally disabled but, instead, specified permanent work restrictions almost identical to those he had previously imposed.

¶5 The trial court determined that Claimant had sustained a change of condition for the worse and ordered Employer to provide her with additional medical treatment including the recommended epidural steroid injections. The court also required Employer to replace Claimant's lift chair. The court denied, however, Claimant's request for temporary total disability benefits. That decision was affirmed by the Workers' Compensation Court sitting en banc. See Okla. Stat. tit. 85, § 3.6(A) (2001).

¶6 Claimant appealed. The Court of Civil Appeals first issued an opinion vacating the Workers' Compensation Court's order and remanding for the entry of an order commencing temporary total disability payments. On Employer's petition for rehearing, however, the Court of Civil Appeals withdrew that opinion and issued a new opinion sustaining the Workers' Compensation Court's order. Claimant filed a petition for certiorari which we have previously granted.

STANDARD OF REVIEW

¶7 We are bound by stare decisis to apply the any-competent evidence standard of review to the factual determinations of the Workers' Compensation Court sitting en banc. Parks v. Norman Mun. Hosp.,

DISCUSSION

¶8 The record contains competent evidence to support the Workers' Compensation Court's determination that Claimant has suffered a change of condition for the worse and needs additional medical benefits in the form of epidural steroid injections. Employer has not appealed from that determination. In addition, the record supports the court's factual conclusion that, despite her change of condition for the worse, Claimant has not established an additional period of temporary total disability.

¶9 The dispositive issue, however, is whether additional medical treatment due to a change of condition for the worse and temporary total disability status are inexorably linked as a matter of law.

¶10 The statutory basis for an increase in benefits is found in section 28 of the Workers' Compensation Act, which permits the Workers' Compensation Court to stop, increase, or decrease a claimant's compensation if there is a change of condition. Okla. Stat. tit. 85, § 28 (2001).

A permanent disability award constitutes a solemn adjudication that the worker's healing period has come to an end and his condition or state of health has reached the very optimum that is then medically attainable. The law assumes that a condition of health, once adjudged to be permanent, is stationary. Stationary conditions generally require no medical care or maintenance. The moment permanent disability begins, the right to receive medical treatment ceases by operation of law except, of course, for certain limited, tightly structured and explicitly authorized situations. Permanent disability, partial or total, is presumed to continue until recurrence of temporary disability is established. In contrast, temporary disability, once shown, is not presumed to extend for any length of time; its duration must be proved from the beginning to its very end. Once adjudged to have permanent disability, a worker is entitled to medical attention only upon establishing recurrence of the postaward healing period in a reopening proceeding. . ..

Bill Hodges Truck Co. v. Gillum,

¶11 Despite its broad language, Hodges is not directly applicable to this case for two reasons. First, the procedural posture of Hodges was quite different. Although the claimant in that case had been adjudicated permanently totally disabled and was seeking additional medical benefits in the form of a heart transplant, he had made no attempt to establish a change of condition. Instead, the claimant argued that he was entitled to the additional medical benefits under the order which adjudicated him permanently disabled and required the employer to continue to pay for "reasonable and necessary medical expenses." The Court's statement was directed to the claimant's assertion that he should be entitled to significantly greater medical benefits than those originally contemplated without establishing a change of condition for the worse.

¶12 Second, the holding in Hodges was based on cases involving claimants whose permanent level of disability had not yet been determined or who were only partially permanently disabled.

¶13 It is sufficient to say that, despite the absolute language employed in Hodges, we have rarely applied it as unconditionally as its language would appear to dictate. Nevertheless, the language remains and has created the situation before us now. The unfortunate result of the emphasized passage in Hodges is that its literal application in a situation like this - where the claimant is permanently totally disabled with no indication that she will ever again be anything other than permanently totally disabled - results in either (1) a complete denial of additional and needed medical treatment or (2) the absurdity of declaring a claimant temporarily totally disabled just because she is in need of medical attention.

¶14 The Court of Civil Appeals has twice been confronted with this issue, with diametrically opposed results. In the first case, Lamphear v. B.F. Goodrich,

¶15 In Lamphear, the Court of Civil Appeals held that a permanently totally disabled claimant who had established a change of condition for the worse and a need for additional medical treatment was entitled to benefits at the higher temporary totally disabled rate for the duration of his "temporary" total disability. The Court concluded that the fact that Claimant was receiving benefits for permanent total disability from the Special Indemnity Fund did not preclude him from establishing additional periods of temporary total disability and, ultimately, an additional level of permanent disability against his employer. The Court described this as a "lateral modification."

While one purpose of the Special Indemnity Act, which is intended to encourage employment of physically impaired workers, is to protect employers from liability for combination of old and new disabilities, that Act does not relieve employers of responsibility for an employee's disability resulting from his last injury. Holding Employer liable for Claimant's temporary total disability, which resulted from recurrence of the back injury sustained while working for Employer, is consistent with the purposes of the Workers' Compensation Act, specifically that part concerning Fund.

Id.

¶16 In his dissent in Lamphear, Judge Buettner made a cogent, fact-based argument:

There does not appear to be any rationale or legal basis to change the status of a claimant from permanently totally disabled to temporarily totally disabled because his condition has worsened. There is no dispute that Claimant was permanently totally disabled since 1990. There is no argument that the additional medical treatment that Claimant sought and received in September 1991 would change that status. Even though Claimant did undergo additional surgeries and required healing time, he was paid benefits during the entire time because he was permanently totally disabled. There was no expectation that his total disability would be temporary rather than permanent.

Id.

¶17 Claimant, who was previously adjudicated permanently and totally disabled, presented competent evidence that she has suffered a change of condition for the worse and is in need of additional medical benefits. That fact, however, does not mandate that she also receive additional benefits for temporary total disability. Temporary incapacity is necessary to obtain temporary total disability benefits because these benefits must cover a defined period and end when permanent disability can be determined. Bama Pie, Inc. v. Roberts,

¶18 Permanent total disability is the "incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience . . .." Okla. Stat. tit. 85, § 3(20) (Supp. 2005); Mangrum,

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED
AND THE ORDER OF THE WORKERS' COMPENSATION
COURT IS SUSTAINED

CONCUR: Winchester, C.J., Edmondson, V.C.J., Watt, Taylor, Colbert, JJ.

CONCUR IN RESULT: Lavender, Opala, Kauger, JJ.

CONCURS IN PART; DISSENTS IN PART: Hargrave, J.

FOOTNOTES

1 Claimant's retirement is mentioned only to provide a full account of the procedural history; we may not consider retirement in determining workers' compensation benefits. Okla. Stat. tit. 85, § 45 (2001); see also City of Duncan v. Bingham, 1964 OK 165, 394 P.2d 456; Crane Carrier v. Ray, 1993 OK CIV APP 120, ¶ 21, 857 P.2d 826, 829.

2 The Workers' Compensation Court's reason for denying temporary total disability benefits - because Claimant's work restrictions were unchanged - was flawed. Okla. Gas & Elec. Co. v. Black, 1995 OK 38, ¶ 8, 894 P.2d 1105, 1107. We will affirm a correct judgment, however, even if it is based on an incorrect legal analysis. Harvey v. City of Okla. City, 2005 OK 20, ¶ 12, 111 P.3d 239, 243.

3 Temporary total disability benefits would be $389.01 per month, while permanent total disability benefits through the Multiple Injury Trust Fund are $213.00. If Claimant was awarded temporary total disability benefits, therefore, she would receive the difference for the period of her temporary total disability. See Lamphear v. B.F. Goodrich, 1998 OK CIV APP 85, ¶ 16, 970 P.2d 615, 618.

4 This statute has been amended since Claimant's initial injury and adjudication, but the relevant language was unchanged.

5 See Hondo Petroleum Co. v. Piearcy, 1962 OK 216, 376 P.2d 1012 (permanent partial disability); Capitol Well Servicing Co. v. Levescy, 1962 OK 118, 271 P.2d 905 (permanent partial disability); Collins Const. Co. v. Berry, 1962 OK 67, 370 P.2d 11 (temporary disability); Pruitt v. Mid-Continent Pipe Line Co., 1961 OK 96, 361 P.2d 494 (temporary disability).

6 Armstrong presented a factual "wrinkle" in that the original award did not reflect the claimant's uncontested request for continuing medical maintenance, but the employer paid for his prescriptions for six years anyway, reflecting the parties' apparent understanding that the court had intended that result. Part of this Court's reasoning, therefore, was that the claimant was not asking for anything to which he was not already entitled. Armstrong v. Unit Drilling, 2002 OK 17, 43 P.3d 383.

7 We recognize, however, that there may be situations where a claimant's level of permanent disability may have improved. Okla. Stat. tit. 85, § 28 (2001). It is conceivable, therefore, that a claimant who has been previously adjudicated permanently totally disabled could be subsequently adjudicated as less than permanently totally disabled and in need of additional medical treatment and an additional healing period, warranting an award of additional temporary total disability benefits. See Okla. Stat. tit. 85, § 22 (Supp. 2006). Our holding today, therefore, should not be interpreted as precluding an award of additional temporary total disability benefits in all cases where a claimant has been adjudicated permanently totally disabled.

Opala, J., with whom Lavender and Kauger, JJ., join, concurring in result