Davis v. BF Goodrich

826 P.2d 587, 1992 WL 16936

• Court: Supreme Court of Oklahoma
• Decided: February 12, 1992
• Docket: 72080
• Status: Published

Opinions

HODGES, Vice Chief Justice.

The issue on appeal is whether there is any competent evidence to support the Workers’ Compensation Court’s finding that the claimant did not sustain or suffer an accidental injury arising out of and in the course of his employment. We find that the Workers’ Compensation Court’s order is supported by competent evidence.

Ronnie Davis (claimant) filed a workers’ compensation claim alleging injury to his lungs and upper respiratory system caused by continuous exposure to hazardous chemicals, including industrial talc, and fumes, while employed by B.F. Goodrich (employer). Claimant began working for the employer on March 15, 1971 and worked there for fifteen years.

The claimant testified to the following. In 1979, he smoked “a pack of cigarettes a day and had been smoking for about 15 years at that rate.” There was no limit to the distance he could walk. He had not missed any work because of breathing problems. He was not taking any medication, either prescription or over-the-counter, for breathing problems. Further, he had never seen a doctor for breathing problems. He stated that he had a productive cough but it was “very minimal.”

At the trial, both the claimant and the employer submitted written medical reports. Objections to the competency and probative value were made to each report. The judge did not take the objection under advisement but stated that she would consider the arguments to the claimant’s medical report. She ruled on the objections by admitting both reports without reservation and did not withdraw the admission. Neither party has addressed the trial tribunal’s ruling on the claimant's report or the competency or probative value of that report in this appeal. Because that issue was not appealed, the trial judge’s ruling is final and is not an issue before this Court.

The claimant’s medical expert, Dr. Miller, rated the claimant as having 20% impairment to his lungs and 10% impairment to his upper respiratory system, resulting in 30% impairment to the body. The employer’s medical expert, Dr. Mahaffey, rated the claimant’s impairment at zero.

Dr. Miller reported that claimant had smoked about 20 cigarettes a day for 20 years. He testified that cigarette smoking could cause a cough and shortness of breath. Dr. Miller testified that in restrictive lung disease the forced vital capacity (FVC) should be decreased and that in obstructive lung disease, the forced expiratory volume in the first second (FEVi) should be decreased. He testified that the claimant’s FVC test was “very close to normal” but that the FEVi fell into class two (mild impairment), indicating obstructive lung disease. Dr. Miller stated that “[cjigarette smoking most generally causes obstructive” lung disease and that exposure to talc would probably cause both restrictive and obstructive lung disease.

Dr. Miller did not examine any of the claimant’s prior medical records. His report did not indicate any cough and sputum production or any wheezing as required by the A.M.A. Guide to the Evaluation of Permanent Impairment (1984 Guide)¹ if the symptoms are present. Therefore, it must be assumed that claimant did not complain of these symptoms. Even though Dr. Miller’s report did not indicate any upper respiratory system problems, he gave the claimant a 10% impairment rating to that part of his body.

The employer’s medical expert, Dr. Ma-haffey, rated claimant’s impairment at zero. Dr. Mahaffey noted the claimant’s smoking habit. He observed that at no time during the test did the claimant wheeze or appear short of breath. Dr. Mahaffey administered the spirometry tests. The results of those tests were within the normal range. Dr. Mahaffey’s report compared the claimant’s pulmonary functions from October 1979 through August 1985 with the claimant’s current pulmonary functions and found no substantial change.

At trial the respondent submitted a medical evaluation which did not include a VO2 or a Dco test. The claimant objected to the report’s probative value and to its competence.

The trial tribunal found that the claimant had not suffered an accidental injury arising out of and in the course of his employment. The Court of Appeals found the medical report was competent evidence and sustained the trial tribunal.

This Court will uphold the decision of the Workers’ Compensation Court if there is any competent evidence to support that decision.² Our review of the competence of the medical report is limited to facial non-compliance with the 1984 Guide.

The Workers’ Compensation Act requires that a medical report which evaluates permanent impairment must comply with the 1984 Guide.³ The claimant argues that the 1984 Guide requires the results of the Dc0 test be included in the medical report before a rating of zero impairment can be given and the employer’s medical expert failed to include the results of a Dc0 test in the report which gave a rating of zero impairment.

The 1984 Guide, under the heading of personal and medical history, requires that the physician estimate the severity of dyspnea. The 1984 Guide also requires that the physician include cough and sputum production, wheezing, and environmental exposure, tobacco use and chronological occupational data in the history. Likewise, the 1984 Guide requires the physician record a number of other data such as blood pressure, heart and respiratory rates, the patients’ breathing, and x-rays results. The medical expert should also evaluate the degree of dyspnea. However, the degree of dyspnea may not be the sole criteria for the evaluation of impairment.⁴

Step I of the physiologic testing specifically requires that a forced expiratory maneuver, or simple spirometry test, be “performed in all examinations of permanent impairment.”⁵ This test is used to measure the ventilatory capacity of the lungs. The three component parts of this test are: (1) the forced vital capacity (FVC), (2) the forced expiratory volume in the first second (FEVi), and (3) the ratio of the first two measurements expressed as a percentage (FEVi/FVC ratio). This maneuver should be performed as described in the 1978 ATS (American Thoracic Society) Epidemiology Standardization Project. To determine if the test results are within normal limits, the physician locates a predicated value from a chart (predicted value). Because there is a range of normal values, the value of the “95% Confidence Interval” must be subtracted from the predicated value. This result establishes the “normal” range. One of the above three measurements should be outside the normal range for the patient to be rated as impaired ⁶ if the spirometry test is used as the sole basis of the impairment rating.⁷ It follows that if all three values are within the normal range and the sole resource for evaluating the impairment, then the patient’s impairment could be rated as zero no matter what the results of the VO2 and Dco tests, indicating that the 1984 Guide did not intend to predicate a zero impairment rating on the V02 and Dco tests being given. If the three measurements fall within the normal range or the severe impairment range, further testing is generally not required unless the claimant’s respiratory complaints are of greater severity than the spirometry test results indicate.⁸

If the FEVi is less than 40% of the predicated value, the FVC is less than 50% of the predicated value, and the ratio is 40% of the predicated value, then the patient can be rated as severely impaired without further testing.⁹ If the FVC, the FEVi, and the ratio of the two are within the 95% confidence intervals, then the patient can be rated as having zero impairment unless the claimant asserts that he is unable to meet the demands of the job or he has not performed properly in the spiro-metry test. If the complainant’s respiratory complaints are greater than the results of the spirometry test indicate, then the physician must proceed to Step II.¹⁰

Step II of the physiologic evaluation is the Dco test.¹¹ Even though the Step I results are within the normal range, if the patient’s respiratory complaints are inconsistent with that range, then the Dco test must be given. It is within the physician’s medical expertise to determine if the complaints are inconsistent with the spirometry results.¹² The 1984 Guide does not require the Dco test as a prerequisite to a zero impairment rating in all circumstances.¹³

If the Dco test is given and the results are less than 40% of the predicated value, then the patient may be rated as severely impaired without further testing.¹⁴ If the result is equal to or greater than 40% of the predicated value, then the physician proceeds to Step III of the physiologic testing which is the estimated exercise capacity test (estimated V02 test).¹⁵ The estimated V02 test involves the use of a treadmill or cycle ergometer and is not recommended for certain individuals.¹⁶ Otherwise, the V02 test should be given when:

(1) an individual’s spirometry and Dco measurement are not within the 95% confidence interval for his or her age and height; OR (2) his or her spirometry and Dco measurements do not indicate severe impairment as defined [by the 1984 Guide]; OR (3) the individual states that he or she is physically unable to meet the demands of a specific job because of breathlessness; OR (4) the individual has not performed maximally or correctly in the spirometry or Dco tests.¹⁷

The estimated V02 test is required if the spirometry and Dco tests have been given and the results of both are not within specified ranges, the claimant states that he cannot perform a specific job because of breathlessness, or the claimant “has not performed maximally or correctly in the spirometry or the Dc0 tests.” The determination of whether the claimant has performed maximally or correctly is within the medical discretion of the doctor.¹⁸ Otherwise, the estimated V02 test is not required.¹⁹ If the physician has doubts about the accuracy of the estimated V02 test, then the measured exercise capacity (measured V02 test) should be administered. Even under the above circumstances, the V02 test should not be performed on a claimant who, “in the opinion of the examining physician, has medical contraindications to such test.”²⁰

Spirometry is the “gold standard” for determining obstructive lung disease because it detects the nature and extent of an obstruction.²¹ Spirometry is also used for determining restrictive lung disease because it detects whether “lung volume or the volume of gas that can be moved per breath” is reduced and the extent of any reduction. The FVC and FEVi measurements, and the ratio of the two are the most useful indications of lung disfunction.²² On the other hand the Dco and the V02 test measurements may vary widely.²³

The test schema for physiologic testing clearly indicates that when the FEVi, the FVC and the ratio of the two are within the normal limits (the predicated value minus the 95% confidence interval) and the patient’s respiratory complaints are consistent with those measurements, the physician is not required, under the 1984 Guide, to administer a Dco test or a V02 test. As stated earlier, if the results of the FEVi, the FVC, and the ratio of the two are within the normal range and consistent with the claimant’s complaints, then the physician can give a classification of zero impairment, and it would be unnecessary to administer either of the other two tests. The 1984 Guide simply does not require a physician to always give the Dco or the V02 test before giving a Class 1 zero impairment rating.

There have been four recent case in which the medical report has given a zero impairment rating without considering the V02 test. They are Branstetter v. TRW/Reda Pump,24 York v. Burgess-Norton Mfr. Co.,25 Gaines v. Sun Refinery and Marketing,26 and Orrell v. B.F. Goodrich.27

Orrell was decided first. In Orrell, the employer’s medical expert gave the claimant a zero impairment rating without performing the Dco test. The Dc0 test is generally given before the V02 is required as discussed above. Orrell held that it was not always necessary to give the Dco before a zero impairment rating could be given. This Court recognized that the Dco test must be given if the results of the forced expiratory maneuver (the simple spirome-try test) were within the normal range and the claimant’s complaints were inconsistent with those results.

The decision as to whether such complaints are actually inconsistent or of greater severity than the more objective physiologic test results, so that the DCO test should be performed, under the 1984 Guides are within an area of medical expertise and are not generally subject to second guessing by a court. For all of the above reasons we perceive no error in [the doctor’s] failure to perform a DCO test.²⁸

After Orrell, this Court decided Gaines which held that the V02 test had to be given before the medical expert could rate a claimant at zero impairment. As discussed earlier, the 1984 Guide does not always require that a V02 test be given before a rating of zero impairment. To the extent that Gaines is inconsistent with this holding, it is rejected.

After Gaines, York was decided. In York, the claimant admittedly did not perform maximally or correctly in the spirome-try test. The employer’s medical expert did not employ the Dco test or the V02 test. This court held that the expert’s failure to conduct further tests was an impermissible deviation from the 1984 Guide. The 1984 Guide requires that the V02 test be performed when, inter alia, “the individual has not performed maximally or correctly in the spirometry or the Dc0 tests.” However, under Orrell, whether the individual performed maximally or correctly is subjective and, thus, within the expert’s medical discretion.

The last of the four cases is Branstetter, which like York, involved a claimant who admittedly did not perform maximally on the spirometry test. Consistent with York, this Court held that the V02 test had to be performed. Neither Branstetter nor York, like Gaines, required that the V02 test be given under all circumstances before a claimant could be rated as having zero impairment.

None of the factors which would require the examining physician to perform the Dco test or the V02 test is present in this case as they were in York and Branstetter. The medical report was competent evidence supporting the trial tribunal’s finding that there was no job-related, accidental injury. The trial tribunal’s order is sustained.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS’ OPINION VACATED; ORDER OF WORKERS’ COMPENSATION COURT SUSTAINED.

OPALA, C.J., and LAVENDER, SIMMS, DOOLIN and HARGRAVE, JJ., concur. SUMMERS, J., concurs in result. ALMA WILSON and KAUGER, JJ., dissent.

1 . American Medical Association, GUIDE TO THE EVALUATION OF PERMANENT IMPAIRMENT (2d ed. 1984).

2 . Parks v. Norman Mun. Hosp., 684 P.2d 548 (Okla.1984).

3 . Okla.Stat. tit. 85, § 3(11) (Supp.1986).

4 . 1984 Guide, supra note 1, at 85.

5 . Id. at 87-88.

6 . Id. at 86 Table 1, and at 89.

7 . Orrell v. B.F. Goodrich, 787 P.2d 848, 852 (Okla.1990).

8 . 1984 Guide, supra note 1, at 97.

9 . Guide, supra note 1, at 98 Figure 2.

10 . Id. at 97. Under the 1988 Guide, “[t]he single breath Dco should be used for the evaluation of all levels of impairment." American Medical Association, GUIDE TO THE EVALUATION OF PERMANENT IMPAIRMENT 112 (3rd ed. 1988) (1988 Guide).

11 . The 1988 Guide provides: “The Dco measures the amount of CO which diffuses across the alveolar-capillary membrane in a specified amount of time.” 1984 Guide, supra note 1, at 97.

12 . Orrell, 787 P.2d at 854.

13 . Id. at 854; Guide, supra note 1, at 97, 98 Figure 2.

14 . Id. at 89, 98 Figure 2.

15 . 1984 Guide, supra note 1, at 98 Figure 2.

In the estimated exercise capacity test, a person is placed on either a treadmill or a cycle ergometer. The V02, or oxygen consumption per minute, is not measured directly but is determined through its relationship with power output, which is measured in kilo-pond meters/min (KPM/min). The power output is related to the grade and speed of the treadmill.

Id at 97.

16 . Id. at 97.

17 . Id. (Emphasis added.) The 1988 Guide states:

Testing to measure exercise capacity should not be done when an individual’s spirometry and Dco measurements indicate severe impairment. Measured exercise capacity testing may be done when (1) the individual’s complaint of dyspnea is more severe than spiro-metry or Dco would indicate; OR (2) the individual states that he or she is physically unable to meet the demands of a specific job because of breathlessness; OR (3) the individual has not performed maximally or correctly in the spirometry or Dco tests.

1988 Guide, supra note 16, at 113-14 (emphasis added).

18 . See Id. at 854.

19 . 1984 Guide, supra note 1, at 97, 98 Figure 2.

²⁰

21 . 4A Attorney’s Textbook of Medicine ¶ 204A.31 (R. Gray 3rd ed. 1989).

22 . Id. at ¶ 204.63.

23 . 1984 Guide, supra note 1, at 97-98.

24 . 809 P.2d 1305 (Okla.1991).

25 . 803 P.2d 697 (Okla.1990).

26 . 790 P.2d 1073 (Okla.1990).

27 . 787 P.2d 848 (Okla.1990).

28 . Id. at 854.