Opinion
Case No. 117,832
11-22-2019
Brittany SMITH, Petitioner, v. WHATABURGER RESTAURANT, LLC, Safety National Casualty Corporation and the Workers' Compensation Commission, Respondents.
Michael R. Green, LAW OFFICE OF MICHAEL R. GREEN, PLLC, Tulsa, Oklahoma, and Bob Burke, Oklahoma City, Oklahoma, For Petitioner Catherine C. Taylor, Anthony A. Blair, Reagan Madison Fort, PERRINE, REDEMANN, BERRY, TAYLOR & FRETTE, P.L.L.C., Tulsa, Oklahoma, For Respondents
Michael R. Green, LAW OFFICE OF MICHAEL R. GREEN, PLLC, Tulsa, Oklahoma, and Bob Burke, Oklahoma City, Oklahoma, For Petitioner
Catherine C. Taylor, Anthony A. Blair, Reagan Madison Fort, PERRINE, REDEMANN, BERRY, TAYLOR & FRETTE, P.L.L.C., Tulsa, Oklahoma, For Respondents
OPINION BY P. THOMAS THORNBRUGH, JUDGE:
¶1 Petitioner, Brittany Smith (Claimant), seeks review of a Workers' Compensation Commission order affirming an administrative law judge's (ALJ's) finding that Claimant's claim for injury to her cervical and thoracic spine, and spinal cord, is barred by the statute of limitations. For the following reasons, we reverse the Commission's decision and remand for further proceedings.
BACKGROUND
¶2 Claimant filed a CC-Form 3 on April 13, 2017, for an injury that occurred on March 9, 2017, to her low back and right hip when she slipped and fell on an ice water accumulation on the floor at her job at Whataburger (Employer). After the store manager called for an ambulance, she was taken to a local emergency room complaining of pain in her back and rib area. X-rays showed no abnormalities, but she was prescribed pain relief medication and released. She missed work for five days, after which she returned and worked in the same job for another two months, until she quit and went to work in a similar position at another restaurant.
¶3 From the outset of the case, Employer denied liability for the injury "pending discovery." It refused to pay temporary total disability (TTD), refused to pay Claimant's medical expenses, and refused to designate a treating physician. Claimant timely requested a trial date. Both parties obtained medical reports from their respective experts — Claimant in May 2017 and Employer in August 2017. Although the experts' reports — later admitted at trial — made different recommendations for further evaluation and treatment, each physician found that the sole cause of Claimant's lower back and right hip pain was the March 9, 2017, accident. Nonetheless, Employer continued to deny liability and in October 2017 requested the appointment of an independent medical examiner (IME) "to address causation."
See report of Claimant's expert, Dr. Aaron M. McGuire, dated May 9, 2017, record pp. 34-36 (stating at p. 36, "... the sole and major cause of the injuries and need for treatment to the lumbar spine ... is directly related to" the March 9, 2017, work accident); and of Employer's expert Dr. C.B. Pettigrew, dated Aug. 7, 2017, record pp. 52-55 (stating at p. 54, "the sole cause of Ms. Smith's current complaints to her lower back and right hip is the ... accident on March 9, 2017").
¶4 The ALJ appointed Dr. Benjamin White as IME. Dr. White examined Claimant in January 2018, and ordered MRIs of Claimant's cervical, thoracic, and lumbar spine based on the symptoms she reported to him of pain extending up her spine into the thoracic region, cutaneous sensitivity, and numbness in the area of her thoracic spine and in left arm. The IME's report, dated February 21, 2018, states that Claimant's MRIs had revealed that she has a large "spinal cord syrinx extending from her cervical into her thoracic spine," with an associated "Chiari malformation," and that this condition was consistent with the symptoms she had reported to him. The IME also opined "within a reasonable degree of medical certainty that [Claimant's] symptomatic syrinx is causally related to her fall at work." He recommended that Claimant undergo a "Chiari decompression," a surgical procedure with an estimated recovery time of 4 to 6 months. As for Claimant's lower back, however, the IME report stated "[h]er lumbar spine MRI is normal," and her "low back imaging is unremarkable," and recommended no further treatment for her lumbar spine.
White's initial report, dated Jan. 2, 2018, and his supplemental report, dated Feb. 21, 2018, are attached to his June 12, 2018, deposition, which was admitted as Commission's Exhibit 1 at trial.
According to the National Institute of Neurological Disorders and Stroke website, https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-Sheets/Chiari-Malformation-Fact-Sheet (last viewed Nov. 22, 2019):
Chiari malformations are structural defects in the base of the skull and cerebellum, the part of the brain that controls balance. Normally the cerebellum and parts of the brain stem sit above an opening in the skull that allows the spinal cord to pass through it (called the foramen magnum). When part of the cerebellum extends below the foramen magnum and into the upper spinal canal, it is called a Chiari malformation (CM).... Most often [CM] is caused by structural defects in the brain and spinal cord that occur during fetal development.
As explained by the IME during his deposition, Claimant's is a "Chiari Type I malformation" of which Claimant was unaware prior to this incident, and which was asymptomatic until her fall at work in March 2017. The fall caused the malformation to become symptomatic, and the development of a "spinal cord syrinx," also called a syringomyelia, which is an accumulation of spinal fluid extending from Claimant's cervical into her thoracic spine. The IME said the condition is "potentially a dangerous problem" that if left untreated, can lead to loss of function in both of Claimant's arms and legs.
¶5 During his deposition in June 2018, the IME further explained that, although he found no "structural abnormality" in need of treatment in Claimant's lumbar, cervical, or thoracic spine, he felt her continued complaints of worsening pain in her low back stemmed from the "anatomic problem [that] is in her spinal cord," which was in need of treatment. During cross examination, on being further pressed to explain what mechanism of injury could be causing Claimant's continued lower back pain, he stated:
A. [by the IME] Again, I think that the low back is a bit of a red herring. I think she likely hurt her low back, you know, not in a way that needs surgery or any type of medical treatment, but again, I am far less concerned about her mechanical pain in her low back and even in her neck and thoracic spine, than in the neurologic symptoms she developed in the intervening weeks and months.
* * *
A. Remember, all the signals that go through the low back, those nerves, they get irritated by ruptured discs, bulging discs, all that dreaded stuff that we see in patients who injure themselves, those signals also have to go up the spinal cord.
When the spinal cord starts being stretched, the signals can get mixed up, and so you can get numbness, you can get
pain, you can get paresthesias or tingling, odd sensations, and spinal cord syrinxes can cause very odd sensations and can be in all extremities.
In untreated and progressive cases, you can even see paralysis.
Q. Was she having symptoms — Did she complain of symptoms to you other than in her low back?
A. Yes, she did. She complained of symptoms in her arms — weakness in her arms and legs. She complained of kind of upper thoracic pain. She complained of areas in her trunk of cutaneous sensitivity or funny feelings when you touched areas of her trunk.
So she complained of pretty much at least sensory symptoms in all four extremities and in her trunk.
Q. What nervous system would that be related to?
A. The spinal cord. The tracks, the tracks of fibers that carry information up back to the brain....
.....
The spinal cord has got 15 or 20 different tracks, with fibers that carry different information up and down, and all of them can be affected. That's why you can get really bizarre symptoms from syrinx and a Chiari.
White deposition at pp. 33-35.
¶6 Employer paid the expenses of the IME and diagnostic testing as required by 85A O.S. Supp. 2014 § 112(G). However, it continued to deny liability and refused to approve any other medical expenses or treatment.
¶7 On June 18, 2018, within a week of the IME deposition but more than a year after her March 2017 date of injury, Claimant filed an amended CC-Form 3, adding, as injured body parts, her cervical and thoracic spine and her spinal cord. Employer denied the claim and raised the affirmative defense of the statute of limitations at 85A O.S. Supp. 2014 § 69(A), which bars a claim unless filed within one year from the date of injury.
¶8 Claimant argued the one-year period had been tolled by § 69(B)(1) of the 2014 statutes, which extends the limitations period for a claim for "additional compensation" in a case in which "any compensation, including disability or medical, has been paid on account of injury." Title 85A O.S. Supp. 2014 § 69(B)(1) bars a claim for additional compensation unless it is filed within one year of the last payment of compensation or two years of the injury date, "whichever is greater."
¶9 An ALJ heard the matter on July 26, 2018. Claimant testified and medical evidence was admitted, including the IME's report and deposition. The ALJ issued an order on August 7, 2018, finding a work-related injury to Claimant's low back, but holding that the one-year limitations period barred the claim of injury to her cervical and thoracic back and spinal cord. The ALJ recognized that the IME found Claimant's fall at work had caused her Chiari malformation to become symptomatic and obstruct the flow of spinal fluid. However, the ALJ rejected Claimant's contention that Employer's payment for services and testing provided by the IME constituted payment of "compensation" under § 69(B)(1), meaning that § 69(A) applied and barred the amended claim. The ALJ further denied Claimant's request for further medical treatment to her lower back, based on the IME's opinion as to her lumbar spine. Injury to Claimant's right hip was reserved for determination at a later date.
¶10 Claimant appealed to the Commission en banc , which affirmed the ALJ. Claimant now seeks review here.
STANDARD OF REVIEW
¶11 Because Claimant's date of injury was in March 2017, the Administrative Workers' Compensation Act (AWCA) governs the law applicable to this matter, including our standard of review. Brown v. Claims Mgmt. Res., Inc., 2017 OK 13, ¶ 9, 391 P.3d 111. Under the AWCA, appellate review is governed by 85A O.S. Supp. 2014 § 78(C), under which this Court may modify, reverse, remand for rehearing, or set aside a WCC order only if it was:
Amendments to § 78 effective in May 2019 do not affect subsection (C).
1. In violation of constitutional provisions;
2. In excess of the statutory authority or jurisdiction of the Commission;
3. Made on unlawful procedure;
4. Affected by other error of law;
5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence;
6. Arbitrary or capricious;
7. Procured by fraud; or
8. Missing findings of fact on issues essential to the decision.
¶12 Although limitations issues "involve mixed questions of fact and law and are reviewed as questions of law in this Court," Ellington v. Horwitz Enter. , 2003 OK 37, ¶ 4, 68 P.3d 983, the Supreme Court has recognized that, because a limitations defense "is treated as a true affirmative defense, rather than as a jurisdictional question," it is not "independently reviewed by this Court." Lamson & Sessions v. Doyle , 2002 OK 89, ¶ 9, 61 P.3d 215. Accordingly, under the administrative review standard of the AWCA, if the determination of a limitations defense depends on a fact issue, then the Commission's determination will be upheld if it is supported by substantial evidence and is not otherwise contrary to law. See Lamson & Sessions, id. ; see also Mullendore v. Mercy Hosp. Ardmore , 2019 OK 11, ¶ 13, 438 P.3d 358 ; and Brown , 2017 OK 13 at ¶¶ 10-11, 391 P.3d 111. To the extent our review requires the resolution of a pure issue of law — such as statutory construction — however, we review the issue de novo . Arrow Tool & Gauge v. Mead , 2000 OK 86, ¶ 6, 16 P.3d 1120.
ANALYSIS
¶13 The applicable version of the AWCA limitations statute, 85A O.S. Supp. 2014 § 69, states in relevant part:
A. Time for Filing.
1. A claim for benefits under this act, other than an occupational disease, shall be barred unless it is filed with the Commission within one (1) year from the date of the injury. If during the one-year period following the filing of the claim the employee receives no weekly benefit compensation and receives no medical treatment resulting from the alleged injury, the claim shall be barred thereafter....
B. Time for Filing Additional Compensation.
1. In cases in which any compensation , including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one (1) year from the date of the last payment of disability compensation or two (2) years from the date of the injury, whichever is greater.... (Emphasis added).
¶14 The definition of "compensation" under the AWCA "includes the medical services and supplies provided for in Section 50 of this title ...." 85A O.S. Supp. 2014 § 2(10) (emphasis added). Section 50, in turn, provides:
A. The employer shall promptly provide an injured employee with medical ... services , along any with medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee. The employer shall have the right to choose the treating physician. (Emphasis added).
¶15 Section 69 was addressed by the Court in Green Country Physical Therapy v. Sylvester , 2018 OK CIV APP 64, ¶ 26, 429 P.3d 354 (approved for publication by order of the Oklahoma Supreme Court). There, the Court affirmed the Commission's construction of the phrase "last payment of disability compensation" in § 69(B)(1) as including an employer's payment for medical services received by a claimant. The facts of Sylvester involved an employer who initially paid a claimant temporary total disability and for medical treatment—even though the claimant had not filed a formal claim—but then refused to pay for medical needs that arose more than two years after the injury occurred. At that point, which was within one year of the date the employer last paid for medical care, the claimant filed his initial CC-Form 3, and the employer sought dismissal. The Commission held the claim was timely under § 69(B)(1). ¶16 On appeal, the Court agreed, finding the claimant had one year from the date the employer last paid for medical services to file his claim. In comparing AWCA § 69 to predecessor workers' compensation statutes, the Court specifically noted that " section 69(B) broadens the scope of ‘reopening any cause’ to the instance ‘in which any compensation, including disability or medical, has been paid on account of injury.’ " 2018 OK CIV APP 64 at ¶ 20, 429 P.3d 354 (emphasis in original).
¶17 Here, Claimant argues the requirement that compensation was paid on account of her injury was met by Employer's request for, and the IME's provision of, an examination and diagnostic testing. She asserts that Sylvester applies here as well and renders her amended claim for benefits timely under § 69(B)(1).
¶18 Employer asserts Sylvester and § 69(B)(1) do not apply here for the primary reason that, unlike Sylvester , Employer has never paid any compensation—whether disability or medical—to Claimant at all. According to Employer, Claimant cannot request "additional compensation" more than one year after her injury, because Employer has never paid "compensation" of any kind in the first instance. Employer argues the Commission correctly interpreted "compensation" as not including an IME's evaluation and testing, and that § 69(B)(1) therefore cannot apply.
¶19 The ALJ's construction of the above statutes (adopted by the Commission en banc ) reasoned that an IME evaluation does not "fall within the parameters" of 85A O.S. Supp. 2014 § 50(A), because "[n]othing in this section supports the contention that an independent evaluation is the same as providing treatment." By this reasoning, Claimant could not show that "compensation, including disability or medical, ha[d] been paid on account of injury" as required by § 69(B)(1) ; and § 69(A) therefore applied to bar her amended claim as a matter of law.
¶20 A significant flaw in the Commission's reasoning, however, is presented by its use of the terms "medical services" and "medical treatment" interchangeably in construing the meaning of "compensation paid" in § 69(B)(1). The AWCA clearly uses the term "medical services" in its definition of "compensation" at § 2(10), and just as clearly differentiates medical "treatment" from other "services" provided by medical professionals, including IMEs, elsewhere in the Act. For example, § 45(A)(2)(unchanged from 2017), permits an ALJ to appoint an IME to "determine if further medical treatment is reasonable and necessary" and simultaneously prohibits an IME from "provid[ing] treatment to the injured worker, unless agreed upon by the parties." Another example is § 112(F) (within the statutory provision governing IMEs generally), which requires an employer to designate a "treating physician" if an IME "determines that more medical treatment is necessary." (Emphasis added). In addition, § 50(D) refers to recommendations by a claimant's "treating doctor" or "an independent medical examiner."
¶21 It also is noteworthy that § 50(E) requires an employee to attend medical examinations ordered by the court or requested by an employer, but does not suggest that mandatory examinations are not "medical services." Moreover, § 50 does not exclude the services of an IME from its coverage. Although, as noted above, IMEs are the subject of a separate statute, at AWCA § 112, that section also authorizes the Commission to set rules concerning appointment, oversight, and payment of IMEs. The Commission has done so with rules set forth in a chapter of Title 810 of the Oklahoma Administrative Code entitled, "Medical Services." See OAC §§ 810:15-9-1 through 810-15-9-6.
¶22 Reading these AWCA provisions as a whole strongly suggests that, even though an IME may not provide medical "treatment" per se , an IME's services are no less "medical services" than those of any other services provided by a medical professional. As such, an IME evaluation and testing services clearly come within the definition of "compensation" under the AWCA, and thus within the parameters of § 69(B)(1) requiring that "compensation" has been paid due to an injury before that statutory section applies.
¶23 For this reason, we find that the services received by Claimant from the IME, at Employer's own request and expense, triggered the extended limitations time period of § 69(B)(1) and rendered Claimant's amended CC-Form 3 timely for purposes of seeking additional compensation. We find the Commission erred in holding otherwise.
Another significant problem with the Commission's construction of the term "compensation" is that it would permit an employer to escape any possible liability under § 69(B) simply by unilaterally refusing to pay for a claimant's medical services even if those services were reasonable and necessary or in abrogation of an employer's duty under § 50(A). Such a situation appears to be essentially what happened here, where Employer continued to deny liability even after its own medical expert found that Claimant's lumbar back injury arose out of and in the course of her employment.
--------
¶24 We do not consider the argument by Employer that Claimant's claim for additional compensation must fail because her amended CC-Form 3 did not specifically state that it was a for "additional compensation" as required by the version of § 69(C) in effect on the date of Claimant's injury. This contention was not raised before the ALJ or addressed by the Commission. "An appellate court will not make first-instance determinations of disputed law or fact issues. That is the trial court's function in every case —whether in law, equity or on appeal from an administrative body." Bivins v. State ex rel. Okla. Mem'l Hosp. , 1996 OK 5, ¶ 19, 917 P.2d 456 (emphasis in original); see also Evers v. FSF Overlake Assoc. , 2003 OK 53, ¶ 18, 77 P.3d 581 ; and Mahmoodjanloo v. Mahmoodjanloo , 2007 OK 32, ¶ 12, 160 P.3d 951.
¶25 Accordingly, we reverse the decision of the Commission dismissing the amended claim as untimely, and remand for further proceedings. We do not disturb its finding as to Claimant's lower back injury, which was not challenged on appeal.
CONCLUSION
¶26 We find that, for purposes of tolling the statute of limitations and triggering the extended limitations period of AWCA § 69(B)(1), the services of the IME that were requested and paid for by Employer constitute "compensation ... paid on account of [the] injury" sustained by Claimant. The amended CC-Form 3 filed by Claimant in June 2018 was timely. We reverse the Commission's order affirming an ALJ's finding that Claimant's claim for injury to her cervical and thoracic spine, and spinal cord, is barred by the statute of limitations, and remand for further proceedings.
¶27 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS .
FISCHER, P.J., and REIF, S.J. (sitting by designation), concur.