Opinion
No. 112,251.
2014-09-26
Tom Franklin WELDON, Petitioner, v. FLEX–N–GATE, OKLAHOMA, LLC (Own Risk # 19362), Liberty Mutual Insurance Co. and the Workers' Compensation Court, Respondents.
John Sprowls, John Sprowls Law Office, Pauls Valley, Oklahoma, for Petitioner. M. Thad Groom, The Groom Law Firm, P.C., Edmond, Oklahoma, for Respondents.
Certiorari Denied Jan. 26, 2015.
Vacated and remanded with instructions.
Proceeding to Review an Order of a Three–Judge Panel of the Workers' Compensation Court; Honorable William R. Foster, Trial Judge.
John Sprowls, John Sprowls Law Office, Pauls Valley, Oklahoma, for Petitioner. M. Thad Groom, The Groom Law Firm, P.C., Edmond, Oklahoma, for Respondents.
¶ 1 Claimant, Tom Franklin Weldon, seeks review of a three-judge panel's order that denied Claimant's request for pre-surgery, temporary total disability (TTD) in excess of 24 weeks. For the reasons set forth below, we vacate the panel's decision and remand with instructions to affirm, without modification, the workers' compensation trial court's order.
¶ 8 The parties agree that the only issue for review is one of law, involving application of 85 O.S. Supp.2009 § 22 to undisputed facts. Accordingly, the appropriate appellate review standard is de novo. See Villines v. Szczepanski, 2005 OK 63, ¶ 8, 122 P.3d 466 (issues of law reviewed de novo ); Am. Airlines v. Hervey, 2001 OK 74, 33 P.3d 47 (trial court's application of law to facts presents issue of law). “Under this standard, we have plenary, independent and non-deferential authority” to re-examine the trial court's legal rulings. Hervey, id. ¶ 11; see also Hogg v. Okla. Cnty. Juvenile Bureau, 2012 OK 107, ¶ 5, 292 P.3d 29.
¶ 9 Claimant argues that the panel erred because his injury is not of a type that is subject to either the eight-week or the 16–week TTD limit for “nonsurgical soft tissue injury” in 85 O.S. Supp.2009 § 22(3)(d). He contends that the panel's reliance on Scott v. Sprint PCS was misplaced, and that the Court of Civil Appeals' holding and analysis in Scott does not apply here. We agree with Claimant.
¶ 10 The version of § 22(3)(d) in effect on the date of Claimant's injury is clear in its intent to limit the period of recoverable TTD benefits for certain types of nonsurgical soft tissue injuries, defined therein as “damage to one or more of the tissues that surround bones and joints.... [including, but not limited to] sprains, strains, contusions, tendonitis, and muscle tears.” See Bed Bath & Beyond, Inc. v. Bonat, 2008 OK 47, ¶ 12, 186 P.3d 952. However, while the statute further specifically states that “[c]umulative trauma is to be considered a soft tissue injury,” it also provides that certain other injuries are not to be considered “soft tissue injuries” as a matter of law. As the Court explained in Bonat, at ¶ 13:
We apply the law in effect at the time of Claimant's injury. See Prince v. Brake Rebuilders & Friction Products, Inc., 2012 OK 104, ¶ 6, 298 P.3d 529; Williams Cos., Inc. v. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1107; Nomac Drilling LLC v. Mowdy, 2012 OK 45, ¶ 8, 277 P.3d 1282; Dunlap v. Multiple Injury Trust Fund, 2011 OK 14, ¶ 1, 249 P.3d 951.
The statute further provides:
In case of a nonsurgical soft tissue injury, temporary total compensation shall not exceed eight (8) weeks. A claimant who has been recommended by a treating physician for surgery for a soft tissue injury may petition the Court for one extension of temporary total compensation and the court may order such an extension, not to exceed sixteen (16) additional weeks, if the treating physician indicates that such an extension is appropriate or as agreed to by all parties.
Section 22(3)(d) also contains an exclusion from the definition of “soft tissue injury.” That section provides: “ ‘Soft 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.” Id. (emphasis added). Thus, “where corrective surgery is performed” to the “spine, spinal disks, spinal nerves or spinal cord,” the injury is by definition not a “soft tissue injury” and it is not subject to the TTD time limits of section 22(3)(d). Rather, it is controlled by the time limits stated in section 22(2)(c).
Section 22(2)(c), in turn, allows for TTD benefits up to “a maximum of one hundred fifty-six (156) weeks in the aggregate,” unless the court determines that, for good cause, additional TTD is warranted.
¶ 11 In the case at bar, we first note that nothing in the record or the parties' briefs indicates that the parties stipulated, or that the workers' compensation court specifically found, that Claimant's injury was, at any point, in fact a “soft tissue injury.” Further, the lower tribunal made no finding that Claimant's injury resulted from “cumulative trauma,” and none of the medical evidence suggests cumulative trauma was involved. Rather, the workers' compensation court found injury to Claimant's “low back,” to which “corrective surgery” in the form of fusion of Claimant's spinal disks has been performed. Therefore, pursuant to 85 O.S. Supp 2009 § 22(3)(d) and Bonat, Claimant's injury is by definition not a “soft tissue injury.” His claim is controlled by the time limitations of § 22(2)(c), as was correctly held by the workers' compensation trial court.
¶ 12 We disagree with the panel's determination that this claim is controlled by Scott v. Sprint PCS, 2012 OK CIV APP 36, 274 P.3d 173, for several reasons, not the least of which is our finding that the Supreme Court's analysis and decision in Bonat controls the outcome here. Moreover, Scott is distinguishable in that it involved a clear case of cumulative trauma to the claimant's neck and hands caused by his continuous use of a computer keyboard and monitor. Further, the claimant in Scott did not even commence his claim for benefits until after he had undergone surgery. He therefore was unable to seek a judicial extension of pre-surgical TTD benefits because he did not have the prerequisite order commencing TTD contemplated by 22(3)(d). See 2012 OK CIV APP 36, ¶ 8, 274 P.3d 173. Thus, even assuming that this Court agreed with the holding or reasoning of Scott in its refusal to expand a claimant's pre-surgical TTD benefits, we would nonetheless find that the panel erred in relying on Scott to determine Claimant's claim in this matter.
We note that COCA Division IV, in an unpublished opinion in Sun Healthcare Group, Inc. v. Richards, Case No. 110,602 (mandate issued 2/4/14), specifically rejected application of the Scott holding for reasons similar to those we stated above. We further note that in argument before the panel below, Claimant relied on COCA Division II's unpublished decision in Stafford v. Precision Pipeline Servs., LLC, Case No. 109,970 (cons. w/ 109,971) (mandate issued 11/20/12), which relied on Bonat in a similar case for “clearly establish[ing] that the extension of TTD benefits for soft tissue injuries turns on whether the injury is surgical or nonsurgical.” See also Public Supply Co. v. Steenbock, 2008 OK CIV APP 53, 186 P.3d 263.
¶ 13 The panel erred as a matter of law when it modified the workers' compensation trial court's order awarding TTD benefits to Claimant. Accordingly, the panel's order is vacated, and this matter is remanded to the panel with instructions to affirm, without modification, the order of the workers' compensation trial court.
¶ 14