Baxter v. Montgomery Exterminating

1998 OK CIV APP 75, 962 P.2d 666, 69 O.B.A.J. 2284, 1998 Okla. Civ. App. LEXIS 47, 1998 WL 347036
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 3, 1998
Docket90256
StatusPublished
Cited by5 cases

This text of 1998 OK CIV APP 75 (Baxter v. Montgomery Exterminating) 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
Baxter v. Montgomery Exterminating, 1998 OK CIV APP 75, 962 P.2d 666, 69 O.B.A.J. 2284, 1998 Okla. Civ. App. LEXIS 47, 1998 WL 347036 (Okla. Ct. App. 1998).

Opinion

OPINION

HANSEN, Judge:

¶ 1 Petitioner, Joe Lynn Baxter (Claimant), seeks review of a Workers’ Compensation Court order which, among other things, awarded Respondent, Montgomery Exterminating (Employer), credit for overpayment of temporary total disability compensation, and limited continuing medical maintenance to a period of six months.

FACTUAL BACKGROUND AND CASE HISTORY

¶2 Claimant injured his back while on the job with Employer in May 1995. He continued to work until December 1995, when he said he could not work any longer because of the pain. In the interim he had been treated by his primary care physician, *668 Dr. R.G., under his health care benefits. Employer began temporary total disability compensation payments on December 12, 1995.

¶ 3 Claimant continued under the care of his primary care physician, who referred him to Dr. L., a neurosurgeon. Dr. L. saw Claimant on January 12, 1996. Dr. L.’s report shows he related to Claimant that his examination was “entirely within normal limits” and that it was “perfectly safe” for Claimant to return to work. Dr. L. advised Claimant to use regular physical exercise and nonprescription medications to control pain.

¶ 4 After he had seen Dr. L., Claimant was nonetheless continued on physical therapy and was given a release from work by his treating physician. Claimant forwarded the release to the State Insurance Fund, Employer’s insurer. Claimant also filed his Form 3 claim in January 1996. Medical care was provided under Workers’ Compensation coverage from that time.

¶ 5 After January 1996, Claimant was referred to Dr. A. for pain management. Dr. A. prescribed a pain clinic, physical therapy and “facet blocks.” Employer refused to pay for a scheduled facet block in November 1996, and referred Claimant to see Dr. W.G. Claimant saw Dr. W.G. on November 6,1996. Dr. W.G. opined Claimant had 0% permanent partial disability, that Claimant was not temporarily totally disabled at that time, and that Claimant required no further medical treatment.

¶ 6 Employer discontinued Claimant’s temporary total disability compensation payments shortly after receiving Dr. W.G.’s report. On December 4,1996, Claimant filed a Form 9, Motion to Set for Trial, on the issue of improper termination of compensation. Claimant asserted Employer had not provided him with either a Form 11, Motion to Terminate Temporary Compensation, or a medical report to support such termination.

¶ 7 Employer then filed its Form 11 on December 19, 1996, which also requested credit for overpayment of temporary total disability compensation. Employer listed Dr. W.G. as the medical witness in support of its motion. Although it is not expressly stated in the record, it appears Employer reinsti-tuted temporary compensation after Claimant’s motion and continued payments until February 24,1997.

¶8 At trial, the parties represented to the court that the issues to be decided were permanent partial disability, continuing medical maintenance, vocational rehabilitation evaluation, and Employer’s claim for overpayment of temporary total disability compensation. The court found Claimant sustained 2% permanent partial disability, but denied Claimant’s requests for vocational rehabilitation evaluation and facet injections from Dr. A. The court ordered Employer to furnish Claimant with continuing medical maintenance in the form of prescriptions for six months from the date of the order. The court also awarded Employer credit for overpayment of temporary total disability compensation for the period November 6, 1996, to February 24,1997.

¶ 9 Upon appeal by Claimant, a three judge panel of the Workers’ Compensation Court modified the order only to allow vocational rehabilitation evaluation. Claimant now seeks review of the order as modified.

STANDARD OF REVIEW

¶ 10 When a three judge panel substituted decision is submitted for our consideration, it must be reviewed by applying the traditional any-competent-evidence test of correctness. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548. Under this standard, our responsibility simply is to canvass the facts, not with an object of weighing conflicting proof in order to determine where the preponderance lies, but only for the purpose of ascertaining whether the Workers’ Compensation Court’s decision is supported by competent evidence, id.

TERMINATION OF TEMPORARY COMPENSATION

¶ 11 Claimant alleges error in that part of the Workers’ Compensation Court’s order terminating his temporary total disability compensation. Claimant argues the court’s determination is contrary to Rule 15, Workers’ Compensation Court Rules (Rule 15), and is not supported by competent evi *669 dence. We find Claimant’s contentions have merit.

¶ 12 The applicable version of Rule 15 is that prior to its amendment effective July 1, 1995. Claimant’s injury was in May, 1995. The parties’ respective rights in a Workers’ Compensation case are determined by the law in effect at the time of injury. Knott v. Halliburton Services, 1988 OK 29, 752 P.2d 812. However, the provisions of Rule 15 which are relevant here remained substantially the same after amendment.

¶ 13 Rule 15 dictates how temporary compensation may be terminated. Subsection A deals with termination rnthout a court order. The only provision in that subsection which has any possible relevancy is A(3), which allows an employer to terminate temporary compensation if a claimant requests a trial to determine permanent disability. Claimant filed such a request on February 27, 1997. The Workers’ Compensation Court, however, found Employer was entitled to terminate temporary compensation on November 6, 1996, so it is obvious the court did not base its determination on Rule 15(A)(3). Additionally, Employer implicitly conceded it could not terminate temporary compensation without a court order when it filed its Form 11.

¶ 14 Where Rule 15(A) does not apply, 15(B) applies “[i]n all other events.” In accordance with 15(B), the employer must file a Form 11, and:

If the employer’s request to terminate is based upon the written medical report of a physician who indicates the employee has been released from the physician’s professional care and is able to return to work, a copy of that report which is to be offered at trial shall be attached to the Form 11.

¶ 15 Claimant’s contentions are, in part, grounded in the Rule 15(B) requirement that the physician’s report upon which the employer relies must state the employee has been released from the physician’s professional care. Claimant argues the foregoing emphasized phrase shows an intent to require the 15(B) physician be a treating physician rather than a medical expert retained merely to evaluate a claimant for the purposes of Workers’ Compensation Act proceedings. In other words, Claimant asserts professional care connotes a physician-patient relationship the purpose of which is to bring a claimant to his or her maximum medical recovery.

¶ 16 This issue has not been decided by our appellate courts.

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Bluebook (online)
1998 OK CIV APP 75, 962 P.2d 666, 69 O.B.A.J. 2284, 1998 Okla. Civ. App. LEXIS 47, 1998 WL 347036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-montgomery-exterminating-oklacivapp-1998.