MCGUIRE v. N. GLANTZ & SON, LLC

MCGUIRE v. N. GLANTZ & SON, LLC
2010 OK 74
Case Number: 105948
Decided: 10/19/2010

THE SUPREME COURT OF THE STATE OF OKLAHOMA

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

CHARLES MCGUIRE, Petitioner-Appellant,
v.
N. GLANTZ & SON, LLC, NATIONAL FIRE INSURANCE COMPANY OF HARTFORD and THE WORKERS' COMPENSATION COURT, Respondents/Appellees,

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II

¶0 The claimant, Charles McGuire, seeks review of a three-judge panel's order, which vacated a trial court order awarding him temporary total disability benefits. The panel's order found that the trial court's order was contrary to law and against the clear weight of the evidence. The Court of Civil Appeals vacated the panel's order and remanded for further proceedings.

CERTIORARI PREVIOUSLY GRANTED;
THE COURT OF APPEALS' OPINION AND THE THREE-JUDGE PANEL'S
ORDER ARE VACATED; THE CLAIM IS REMANDED TO THE THREE-JUDGE
PANEL FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
PRONOUNCEMENT.

Susan H. Jones, TOON & OSMOND, P.L.L.C., Tulsa, Oklahoma for Petitioner-Appellant.
J. R. Schneider, PIERCE COUCH HENDRICKSON BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, For Respondents-Appellees.

WINCHESTER, J.

¶1 The issue in this cause is whether the three-judge panel's order is too vague for appellate review. We hold that under these facts, the panel's order does not meet the standards set out in our case law and therefore must be remanded for review by the panel.

I. FACTS AND PROCEDURE

¶2 Charles McGuire, the claimant, presented the following statement of facts. He works as a driver and sales representative for N. Glantz & Son, LLC, the employer. He traveled Tuesday through Friday in his capacity as an employee for the respondent, N. Glantz & Son. In March of 2005, he became ill and was ultimately diagnosed with acute hepatitis A. Mr. McGuire claimed he contracted the disease from a restaurant while traveling on company business. During the relevant time, he ate at restaurants only when he was on the road for his job. When he was home, he or his wife prepared their meals and all family members ate the same food.

¶3 The employer asserts that Mr. McGuire claimed he was exposed to hepatitis A and C while working as a route driver in Arkansas. The employer states he sought medical treatment on March 30, 2005, with complaints of nausea, vomiting and abdominal pain. He had markedly elevated liver function abnormalities, and after an initial diagnosis of gall bladder problems, he underwent gall bladder surgery on April 2, 2005, and was subsequently diagnosed with hepatitis A and C.

¶4 As medical evidence, Mr. McGuire submitted the deposition of his doctor, and the trial court accepted it as Exhibit A over the objection of the employer. The doctor testified that Mr. McGuire had both hepatitis A and C, and that the symptoms to those two types would be the same. The doctor testified that he believed Mr. McGuire contracted hepatitis C from his parents, who were both positive for that disease. He testified that hepatitis C may be transmitted from blood serum transfer, such as needles or transfusions, and that Mr. McGuire may have contracted the disease when he was born. The doctor explained that the hepatitis A virus is almost exclusively transmitted through an oral-fecal route. He concluded that Mr. McGuire's hepatitis C was a chronic problem and the hepatitis A was an acute episode, which usually appears within two to four weeks after the virus enters in the body. However, the doctor testified that he did not know exactly where the hepatitis A virus came from, except from his discussion with Mr. McGuire concerning his family's eating habits and the fact that his family did not contract the virus. He did testify that other food sources, such as fruits and vegetables could be carriers of the fecal matter, as well as shaking someone's hand.

¶5 In its order that awarded temporary total disability benefits, the trial court found that Mr. McGuire sustained an accidental personal injury in the nature of hepatitis A and consequential injury to the abdomen, that is, gall bladder, liver and abdominal hernia, due to surgery arising out of and in the course of the claimant's employment. The court concluded that the employer's notice defense had been overcome by testimony that Mr. McGuire's wife had given sufficient notice, and that the claimant had proven his case by a preponderance of the evidence. The order recited that Mr. McGuire had several exposures on the road while in the respondent's employ and that at least one of them had caused the injury, and that this proof was sufficient to convince the court that the claimant's incurable and infectious disease or injury resulted from an on-the-job exposure. The court further stated that the record presented no evidence that the disease could have been contracted at a place other than the place of employment.

¶6 Pursuant to Rule 60

II. STANDARD OF REVIEW

¶7 When the order of the trial court is vacated by the three-judge panel, the trial court's order stands replaced with that of the review panel, so that there is never more than one final decision to be reviewed in the appellate courts. Parks v. Norman Municipal Hospital,

III. ANALYSIS

¶8 Mr. McGuire argues that the order of the three-judge panel does not make requisite findings to enable this Court's review. He continues that the panel is required "to make specific findings of the ultimate facts responsive to the issues formed by the evidence as well as conclusions of law upon which its order is to be tested." Dunkin,

¶9 Regarding appeals to the three-judge panel, Rule 60(A)(3) of the Rules of the Worker's Compensation Court, 85 O.S.2001, ch. 4, app., provides that request for review shall include a specific statement of each conclusion of law and finding of fact urged as error, and that general allegations will not be accepted. Error not raised before the panel cannot be considered by this Court or in the Court of Civil Appeals. Bostic Tank Truck Service v. Nix,

¶10 Along with its Request for Review, the respondent/employer and its insurance carrier submitted a memorandum brief to the three-judge panel that covered the factual issues regarding whether the claimant had been exposed to hepatitis during the course of his employment, and the amount of evidence tending to prove that his exposure and disease could not be linked to his employment by either the claimant or his medical expert. The employer's brief complained that the second order issued by the trial judge was identical to the first, even though claimant had submitted his medical expert testimony by deposition and the employer's subsequent competency and evidentiary sufficiency objections were not addressed in the second order.

¶11 With two general allegations and eight specific allegations for review, the order of the three-judge panel is insufficient to inform this Court of the basis for its conclusion that the trial court's order was against the clear weight of the evidence. Did the three-judge panel reject the evidence of timely notice of injury, or that the claimant was exposed to hepatitis A during the course and scope of his employment, or that his injury was caused by hepatitis A and not hepatitis C?