1st Staffing Group USA v. Brawley

2013 OK CIV APP 26, 298 P.3d 1195, 2013 Okla. Civ. App. LEXIS 9, 2013 WL 1384976
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 14, 2013
DocketNo. 110,340
StatusPublished
Cited by1 cases

This text of 2013 OK CIV APP 26 (1st Staffing Group USA v. Brawley) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
1st Staffing Group USA v. Brawley, 2013 OK CIV APP 26, 298 P.3d 1195, 2013 Okla. Civ. App. LEXIS 9, 2013 WL 1384976 (Okla. Ct. App. 2013).

Opinion

JANE P. WISEMAN, Judge.

¶ 1 1st Staffing Group USA (Employer) seeks review of orders of the Workers’ Compensation Court determining compensability, awarding permanent partial disability (PPD) benefits, and denying Employer’s request for overpayment of temporary total disability (TTD) benefits. Upon review of the record on appeal and applicable law, we vacate the order of the trial court that denied Employer’s request for overpayment of TTD benefits and remand for further proceedings on this issue alone. We sustain the award of PPD benefits to Claimant.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Claimant filed a Form 3 on September 30, 2009, alleging injury to her low back, left hip, left knee, body, and also depression arising from an accident at work. Claimant stated she “slipped on fluid” on or about July 6, 2009. Employer admitted the back and left knee injury but denied “left hip, body or depression.” Employer also alleged Claimant had a pre-existing condition and denied PPD and permanent anatomical abnormality. Employer asserted Claimant had a “soft-tissue injury only.”

¶ 3 Employer later asked for a TTD overpayment credit after it had paid Claimant 24 weeks of TTD benefits. On May 17, 2011, Employer filed a supplemental Form 10 in which it again denied PPD, denied permanent anatomical abnormality to the thoracic [1197]*1197or lumbar back and left leg and psychological overlay, claimed that Claimant had a preexisting condition, and asked for apportionment.

¶ 4 A trial was held on May 19, 2011. Employer requested an overpayment credit for payments made from June 8, 2010, through November 30, 2010, for a total of $7,763.50 “based on the fact that in excess of 24 weeks TTD had been paid without the Claimant undergoing any surgery to any body part.” Counsel for Claimant stated:

[I]n response to the request for overpayment, I would just like to state, on the Claimant’s behalf, that the MRI scan in this case did show three unoperated disk lesions resulting, in our opinion, in permanent anatomical abnormality and loss of function, and that’s outlined in our report which we have submitted to you; and she’s also undergone an epidural steroid injection.

Employer’s counsel stated in response:

[W]e don’t believe the bulges that are documented in the first MRI, number 1, may even be there.
When Dr. Livingston was appointed, he had to run a second MRI to the low back, which was reported as normal. He turned around and said that there aren’t. So, he personally reviewed both MRIs and made the finding in a report, March 23rd, 2010, that he personally reviewed both of them, and that the bulges, in his opinion, were not acute, in the one that was documented; and therefore, we don’t believe there is any permanent anatomical abnormality.

¶ 5 Claimant testified that she was walking back from break at work on July 6, 2009, when she slipped on some hydraulic fluid and fell. She stated that the fall resulted in injuries to her back and left knee and that she also has pain in her left hip. She was evaluated at Sisters of Mercy Health System by Charles Holmes, PAC. X-rays were taken of her back and she was provided with muscle relaxers and anti-inflammatory medication. She was referred for a course of physical therapy and placed on light duty work restrictions. An MRI scan was performed and Claimant was evaluated by Dr. Michael Kiehn, who placed her on a Medrol Dosepak and recommended aggressive physical therapy. Claimant testified the aggressive physical therapy aggravated her symptoms resulting in Dr. Kiehn adjusting his instructions for physical therapy. Dr. Kiehn also administered a steroid injection in her left knee.

¶ 6 Claimant was also seen by Dr. Patrick Livingston. Another MRI was performed on her low back. Dr. Stephen Andrade gave Claimant an epidural steroid injection. Dr. Christopher Bouvette performed an EMG study and recommended pain management, but Claimant testified she never received pain management. Claimant received a Functional Capacity Evaluation on December 16, 2010, and was placed “in a sedentary physical demand category with occasional maximum of 10 pounds.” Claimant has been unable to return to work with these restrictions and asked the court for a vocational retraining evaluation.

¶ 7 Claimant denied any previous problems with her left knee or low back or injuries to these body parts prior to her accident at work. She stated that she has sharp pains across her back and down her left side that go through her hip to her knee and that her knee throbs once or twice a day for approximately 15 to 20 minutes. She testified that she has pain every day, the pain causes her not to sleep, and she is unable to attend her kids’ functions or do house chores. She says she has symptoms of depression, including sadness.

¶8 On cross-examination, Claimant testified she never filed a prior workers’ compensation claim. She stated she has increased pain with certain activities and she has difficulty sleeping. She has received no treatment for depression.

¶ 9 The trial court admitted the report of M. Stephen Wilson, M.D., who stated that the report from the MRI performed on August 3, 2009, “revealed disc bulging at L2/3, with posterior element hypertrophy and narrowing of the right foramen. At L3/4 and L4/5, there were broad-based disc bulges present with foraminal involvement and posterior element hypertrophy with bilateral for-[1198]*1198aminal narrowing.” The report also stated the following:

Per court order, [Claimant] was then evaluated by Dr. Patrick Livingston March 23, 2010. Dr. Livingston noted continued symptoms in her low back, however, it was noted that her left knee had improved considerably. Dr. Livingston recommended a repeat MRI scan of her low back. This was performed on March 29, 2010, at Southwest Oklahoma MRI. This revealed a normal MRI of the lumbar spine.
Dr. Livingston then noted upon review of the MRI scan that it was surprisingly read as normal. He did not understand why there was such a discrepancy from the first MRI scan performed in August 2009, which revealed multiple disc bulging. Due to this discrepancy, he requested the actual scans for personal review. He did recommend that she undergo epidural steroid injections.
Following review of the actual MRI scans, Dr. Livingston noted some disc bulging at L4/5 and left L4/5 neuroforami-nal narrowing. He continued to believe that she would benefit from epidural steroid injections. He discussed possible referral for a lumbar diseogram should her symptoms not improve.

Dr. Wilson performed range of motion tests for the lumbar spine and concluded that Claimant had 5% impairment for range of motion of both the lumbar flexion and lumbar extension, 3% for the left lateral flexion, 2% for the right lateral flexion, 6% for weakness in the lumbar flexors and extensors, 8% for weakness in the bilateral hip flexors and extensors, 9% for weakness and neuropathy for the bilateral lower extremities, and 9% for the three unoperated disc lesions at L2/3, L3/4, and L4/5. Dr. Wilson found a total lumbar impairment of 49%.

¶ 10 Dr. Wilson stated Claimant scored a 74 on the Goldberg Depression test. Dr. Wilson concluded Claimant’s score is consistent with severe depression.

¶ 11 Dr.

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2013 OK CIV APP 26, 298 P.3d 1195, 2013 Okla. Civ. App. LEXIS 9, 2013 WL 1384976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/1st-staffing-group-usa-v-brawley-oklacivapp-2013.