Joe Brown Co. v. Melton

2013 OK 66, 307 P.3d 342, 2013 WL 3325960, 2013 Okla. LEXIS 79
CourtSupreme Court of Oklahoma
DecidedJuly 2, 2013
DocketNo. 109,306
StatusPublished
Cited by2 cases

This text of 2013 OK 66 (Joe Brown Co. v. Melton) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joe Brown Co. v. Melton, 2013 OK 66, 307 P.3d 342, 2013 WL 3325960, 2013 Okla. LEXIS 79 (Okla. 2013).

Opinion

WINCHESTER, J.

T1 The claimant, Adrian Melton, was a truck driver for the employer, Joe Brown Company, Inc. On November 16, 2009, in the process of washing out his truck in preparation for a load he was to transport, a two-to-three hundred pound wash rack fell on him, causing injury. On October 15, 2010, the Workers' Compensation Court found that he had been injured while working within the [344]*344seope of his employment. He was awarded eleven weeks of temporary total disability (TTD), and also granted permanent partial disability (PPD) for his low back and neck injuries and for psychological overlay. The employer appealed to a three-judge panel, which vacated some parts of the award and sustained others.

T2 Employer then sought review of the panel's decision. On November 18, 2011, the Court of Civil Appeals (COCA) vacated and remanded the award for permanent partial impairment concerning the claimant's low back and neck for failure to comply with the AMA Guides, 5th Edition. In addition, that court decided the "any competent evidence" standard of review was inconsistent with 85 0.S.2011, 340(D). The new statute became effective on August 26, 2011. In relevant part, the statute provides:

"After the effective date of this act, regardless of the date of injury, the Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds:
"I. The Court acted without or in excess of its powers;
"2. The order or award was contrary to law;
"3. The order or award was procured by fraud; or
"A. The order or award was against the clear weight of the evidence."

Emphasis added.1

13 Accordingly, the COCA implemented the "against the clear weight of the evidence" standard. The claimant seeks review, arguing that the COCA incorrectly applied the 2011 standard instead of the any competent evidence standard, which was the relevant standard of review before the 2011 statutory change. See Parks v. Norman Municipal Hospital, 1984 OK 53, ¶ 13, 684 P.2d 548, 552. Both parties petitioned for certiorari, and this Court granted both petitions.

[ 4 Nine days after the predecessor statute to § 340(D), 85 O.S.Supp.2010, 3.6, became effective, the COCA applied the "any competent evidence" standard of review in Dunlap v. Multiple Inj. Trust Fund. This Court, by order, held that the COCA properly applied the any competent evidence standard, because the claim for benefits occurred prior to the effective date of the amendment, and the amendment applies prospectively. Dunlap v. Multiple Inj. Trust Fund, 2011 OK 14, ¶ 1, 249 P.3d 951, 952. The Dunlap holding was also cited as authority in Nomac Drilling LLC v. Mowdy, 2012 OK 45, ¶ 8, 277 P.3d 1282, 1284. More recently, this Court in Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, ¶ 11, 295 P.3d 1107, 1111, construed 85 0.8.2011, 840(D) for the first time. The Court held that the standard of review determined on the date of the injury is a substantive right requiring prospective application. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1107, 1113.

15 Similar to the cireumstances in Dunlap, the claimant's injuries took place before the effective date of the new statute. Indeed, the Court of Civil Appeals acknowledged that the new standard did not go into effect until "[s}hortly after the completion of briefing in this case...." Opinion at 2, 12. Because the injury occurred before the new standard went into effect, the "any competent evidence" standard of review is the correct standard to be applied.

16 Regarding temporary total disability, the COCA correctly acknowledged that the benefits are limited to eight weeks for non-surgical, soft tissue injuries, "unless there is objective medical evidence of a permanent - anatomical _ abnormality." 85 O.8.Supp.2007, 22(8)(d)2; Bed Bath & Beyond, Inc. v. Bonat, 2008 OK 47,¶ 9, 186 P.3d 952, 955. However, § 22(8)(e) provides, in describing what is included in the phrase "permanent anatomical abnormality," that "the Court may consider if there is credible [345]*345medical evidence that the ability of the employee to earn wages at the same level as before the injury has been permanently impaired."3 The COCA observed that both claimant's and employer's doctors acknowledged that the claimant was at maximum medical improvement, and released him for work with permanent restrictions. The COCA correctly concluded that the award by the three-judge panel should be sustained. Although the COCA applied the incorrect standard of review, an application of the correct standard does not change the result.

T7 Pertaining to the claimant's award for low back and neck impairment, the COCA vacated and remanded for "cure of evidentia-ry deficits." We conclude that the standard of "any competent evidence" supports the award by the three-judge panel and should be sustained. As for the contention that pertains to continuing medical maintenance, the portion of the award recommending it was sustained by the three-judge panel, by the COCA, and we agree that it should be sustained.

T8 Citing Adecco, Inc. v. Dollar, 2011 OK CIV APP 43, 254 P.3d 729, (hereinafter Doi-lar) the COCA sustained an award of psychological overlay to the claimant. In the Dollar case the same chiropractor as in the case now before us, Dr. Hugh G. McClure, D.C., testified to Patricia Dollar's psychological overlay. As in the claim now before this Court, Dr. McClure testified that he administered the Zung Depression Test and that Dollar had minimum to mild depression. The trial court found that Dollar had sustained a 8% PPD psychological overlay. The COCA, Division No. 4, sustained the award.

19 The employer in the Dollar case argued that the report of Dr. McClure was deficient because (1) the Zung Depression Test had not been shown to constitute "objective medical evidence" under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and (2) because a chiropractor is not qualified to testify as an expert to the degree of a patient's psychological impairment resulting from a work-related injury. Dollar, 2011 OK CIV APP 48, 1 12, 254 P.3d at 732.

1 10 The issue is whether a chiropractor's scope of expertise is limited to the areas of practice covered by a chiropractor's license under Oklahoma Statutes. The statutes provide by law for the licensing of chiropractors. The seope of the practice of a chiropractor is provided by 59 0.8.2011, 161.2(A):

"A. . Chiropractic is the science and art that teaches health in anatomic relation and disease or abnormality in anatomic disrelation, and includes hygienic, sanitary and therapeutic measures incident thereto in humans. The seope of practice of chiropractic shall include those diagnostic and treatment services and procedures which have been taught by an accredited chiropractic college and have been approved by the Board of Chiropractic Examiners."

{11 In his deposition, which is claimant's exhibit number 2, Dr. McClure admitted, as he was being questioned by Mr. Melton's attorney that he is neither a psychologist nor a psychiatrist, and when asked if he either took, taught, or did any sort of further education in the areas of psychology, psychological teaching or testing, Dr.

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Bluebook (online)
2013 OK 66, 307 P.3d 342, 2013 WL 3325960, 2013 Okla. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joe-brown-co-v-melton-okla-2013.