Bowers v. Glen Eagle Apartments

2006 OK CIV APP 99, 141 P.3d 573, 2006 Okla. Civ. App. LEXIS 64, 2006 WL 2520617
CourtCourt of Civil Appeals of Oklahoma
DecidedJuly 20, 2006
DocketNo. 102,888
StatusPublished

This text of 2006 OK CIV APP 99 (Bowers v. Glen Eagle Apartments) 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
Bowers v. Glen Eagle Apartments, 2006 OK CIV APP 99, 141 P.3d 573, 2006 Okla. Civ. App. LEXIS 64, 2006 WL 2520617 (Okla. Ct. App. 2006).

Opinion

Opinion by

KENNETH L. BUETTNER, Chief Judge.

¶ 1 Petitioner Donald Bowers appeals from the Workers’ Compensation Court’s Order denying him additional permanent partial disability for the loss of his left eye. The trial court held that because Bowers had previously been awarded 100% PPD for the loss of use of his left eye, he was not entitled to additional PPD benefits for the physical loss of that eye. On de novo review, we find Bowers was not entitled to PPD compensation for the anatomical loss of his eye in addition to the 100% PPD benefits he received for the loss of use of his eye. We further find no support for Bowers’s claim for additional PPD benefits based on the amendment of 85 O.S. § 22(3) since his original injury. We therefore sustain the order from which Bowers appeals.

¶ 2 Bowers injured his left eye in a work-related accident July 10, 1989.1 The Workers’ Compensation Court’s September 6,1991 Order found that Bowers sustained 100% PPD to the left eye, for which he was entitled to 200 weeks of compensation totaling $32,016.2 The court also awarded TTD benefits for the period from August 2, 1989 to January 11,1990.3

¶ 3 The Workers’ Compensation Court issued its Order Authorizing Medical Treatment January 25,1999, in which it authorized surgery and placement of a prosthetic left eye. Bowers then sought additional PPD benefits, which led to the Order from which [575]*575he now appeals. The December 2, 2005 Order at issue here provided, in pertinent part:

THAT claimant has been previously adjudicated to have sustained 100% permanent partial disability to the LEFT EYE by order filed SEPTEMBER 6, 1991. Since that time, claimant’s LEFT EYE has been surgically removed and an artificial eye has been placed in the left eye socket. Claimant now seeks an additional 100% permanent partial disability to the LEFT EYE for its anatomical loss, asserting that the previous award was for 100% functional loss. The Court observes, however, that if claimant’s original injury had resulted in the anatomical loss of the eye, claimant would have received a maximum of 100% for such an injury. The Court finds no legal ground for awarding additional permanent partial disability. Claimant’s request for additional permanent partial disability is DENIED as a matter of law.4

¶ 4 The facts are not disputed. Whether a claimant is entitled to two separate awards of 100% PPD, first for the functional loss and then for the later anatomical loss of an eye, is a question of law. We therefore review the matter de novo. B.E. & K. Const, v. Abbott, 2002 OK 75, 59 P.3d 38, n. 1; Ibarra v. Hitch Farms, 2002 OK 41, ¶ 4, 48 P.3d 802. Under this standard, this court has plenary, independent and non-deferential authority to address legal issues. American Airlines v. Hervey, 2001 OK 74, ¶ 11, 33 P.3d 47.

¶ 5 In his appellate brief, Bowers has failed to acknowledge that the Workers’ Compensation Act equates loss of use with loss of the member in the case of scheduled member injuries: “Loss of Use: Permanent loss of use of & thumb, finger, toe, arm, hand, foot, leg or eye shall be considered as the equivalent of the loss of such thumb, finger, toe, hand, arm, foot, leg or eye.” 85 O.S.2001 § 22(3) (emphasis added).5

¶ 6 Instead, Bowers asserts that despite the 1991 adjudication of 100% PPD to the left eye, in 1991 he “still had vision in the eye sufficient to see shadows, differentiate light and darkness, could see colors at certain angles and retained some depth perception.” Bowers asserts he lost that amount of vision, along with the eye itself, when his left eye was removed. At the September 19, 2005 hearing, Bowers agreed that before his eye was removed, the Snellen charts showed he had “a hundred percent loss to the eye.”

¶ 7 Bowers relies on cases in which a claimant who had prior vision defects, but who retained sufficient vision in the affected eye to work, later lost that eye or its use. The rule in such cases is that the compensation for loss of the eye is not reduced by the prior partial impairment of the eye. See Protein Technologies Intl./Ralston Purina v. Hammock, 1994 OK CIV APP 21, 876 P.2d 728 (cert.denied); Standard Testing and Engineering v. Bradshaw, 1968 OK 62, 442 P.2d 337; Eagle-Picher Mining & Smelting Co. v. Murphy, 1934 OK 441, 35 P.2d 952,169 Okla. 180.6 Bowers urges that this rule means the Workers’ Compensation Court may award more than 100% PPD. However, the cases invoking that rule are distinguishable. In those eases, the employee previously had partial vision impairment which did not affect the employee’s capacity to work. The later work-related loss of the eye or its use is the [576]*576loss subject to 100% PPD without reduction for prior partial disability. For example, a worker who wears glasses and loses an eye (or the use of the eye) in a work-related injury is entitled to full compensation for the loss (or loss of use) of the eye, without deduction for the disability requiring glasses. That circumstance is entirely different than the case here, where there was one work-related injury which led to an award of 100% PPD for the loss of use of the eye, followed by the later loss of the eye itself due to complications.

¶ 8 In this case, the Workers’ Compensation Court adjudicated Bowers as having 100% PPD due to loss of use of his eye in 1991. At the time he was awarded the amount of compensation allowed by statute for loss of the eye, a scheduled member. Bowers’s claim for benefits for the physical loss of the eye itself is an attempt to double the 100% PPD benefits he has previously received, despite the plain language of the statute that loss of use is the equivalent of loss of the eye. And, Bowers’s testimony that he could see some shadows and light in his left eye does not suggest he was able to work using that eye (his ability to work using the other eye is not relevant). Before his left eye was removed, Bowers did not suffer partial impairment of his vision in that eye; he had been compensated for the loss of the eye. The rule in Protein Technologies is not applicable in this case.

¶ 9 The Oklahoma Supreme Court has held that where a claimant has suffered the loss of an eye, or the loss of its use, and has been awarded the statutory compensation for the loss of the scheduled member, there can be no further award of compensation for the loss of that same member. Sinclair Oil & Gas Co. v. State Indus. Com’n, 1932 OK 134, 8 P.2d 72, 155 Okla. 116. In Sinclair, the claimant lost his eye and part of his skull when he suffered a blow to the face while working. In 1926, the claimant was awarded full compensation for the loss of an eye. In 1931, the claimant sought additional compensation based on pain and swelling in the eye socket and in the area where part of his skull was removed. The Industrial Commission ordered additional TTD, but the Supreme Court reversed and remanded for a finding whether the claimant had suffered a change of condition for the worse not involving the lost eye.

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Related

Standard Testing and Engineering Co. v. Bradshaw
1968 OK 62 (Supreme Court of Oklahoma, 1968)
Wolfenbarger v. Safeway Stores, Inc.
1990 OK CIV APP 65 (Court of Civil Appeals of Oklahoma, 1990)
Protein Technologies International/Ralston Purina v. Hammock
876 P.2d 728 (Court of Civil Appeals of Oklahoma, 1994)
Kerr Glass Co. v. Parr
1953 OK 330 (Supreme Court of Oklahoma, 1953)
Special Indemnity Fund v. Fellows
1953 OK 274 (Supreme Court of Oklahoma, 1953)
King Manufacturing v. Meadows
2005 OK 78 (Supreme Court of Oklahoma, 2005)
American Airlines v. Hervey
2001 OK 74 (Supreme Court of Oklahoma, 2001)
Ibarra v. Hitch Farms
2002 OK 41 (Supreme Court of Oklahoma, 2002)
BE & K. CONST. v. Abbott
2002 OK 75 (Supreme Court of Oklahoma, 2002)
Arrow Tool & Gauge v. Mead
2000 OK 86 (Supreme Court of Oklahoma, 2000)
Eagle-Picher Mining & Smelting Co. v. Murphy
1934 OK 441 (Supreme Court of Oklahoma, 1934)
Sinclair Oil & Gas Co. v. State Industrial Com.
1932 OK 134 (Supreme Court of Oklahoma, 1932)
Seneca Coal Co. v. Carter
1922 OK 90 (Supreme Court of Oklahoma, 1922)
Earl W. Baker & Co. v. Morris
1935 OK 591 (Supreme Court of Oklahoma, 1935)
Milling MacHinery, Jones-Hettel-Sater Const. Co. v. Thomas
50 P.2d 395 (Supreme Court of Oklahoma, 1935)

Cite This Page — Counsel Stack

Bluebook (online)
2006 OK CIV APP 99, 141 P.3d 573, 2006 Okla. Civ. App. LEXIS 64, 2006 WL 2520617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowers-v-glen-eagle-apartments-oklacivapp-2006.