Orrell v. BF Goodrich

1990 OK 13, 787 P.2d 848, 1990 Okla. LEXIS 13, 1990 WL 11153
CourtSupreme Court of Oklahoma
DecidedFebruary 13, 1990
Docket69842
StatusPublished
Cited by16 cases

This text of 1990 OK 13 (Orrell v. BF Goodrich) 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
Orrell v. BF Goodrich, 1990 OK 13, 787 P.2d 848, 1990 Okla. LEXIS 13, 1990 WL 11153 (Okla. 1990).

Opinions

LAVENDER, Justice:

Claimant, Robert Orrell, worked at B.F. Goodrich’s tire manufacturing plant for 31 years, retiring in 1986. He filed a claim for compensation with the Oklahoma Workers’ Compensation Court alleging exposure to certain chemicals at Goodrich caused reduced breathing capacity and injury to his lungs and upper respiratory system. Employer answered denying the claim. A hearing was held before a trial judge. Claimant testified concerning his work history, exposure to certain chemicals and his experience with dyspnea, i.e. shortness of breath. Each side presented depositions, with medical reports attached of one doctor that had examined claimant. Claimant’s doctor (Dr. A) opined claimant had a Class 2 impairment due to injury to his lungs caused by his 31 years with Goodrich. He rated claimant’s impairment at 20% perma[850]*850nent partial. Goodrich’s doctor (Dr. M) found no impairment and alternatively stated . even if claimant had any respiratory impairment “[0]ne would not expect it to be from his work at ... Goodrich.”

At the hearing claimant objected to the deposition of Dr. M as lacking in probative value. The deposition was admitted with the trial judge noting the objection. Goodrich objected to the deposition of Dr. A on the basis of competency and probative value. The deposition was admitted subject to said objections. Claimant also orally made a motion for appointment of a third physician to conduct an independent medical examination pursuant to 85 O.S.Supp.1986, § 17. Claimant had earlier filed a written motion. The trial judge took this motion and the rest of the matter under advisement.

A week after the hearing the trial judge entered his order denying the claim. He ruled “[Cjlaimant did not sustain an accidental personal injury or occupational disease which was causally related to his work _” He also sustained Goodrich’s objection to the competence of the deposition of Dr. A “[A]s being in conflict with the AMA Guides_” Appointment of a third physician was denied because “[Tjhere [was] no competent medical to show [] claimant sustained any ill effect to his breathing from his work ....”

Claimant sought review and the matter was assigned to the Court of Appeals. In an unpublished opinion that court ruled it was Goodrich’s medical evidence that was incompetent as not in compliance with the Guides, that claimant’s medical evidence was in compliance with the Guides and, thus, based on our decision in LaBarge v. Zebco, 769 P.2d 125 (Okla, 1988), remanded with directions to enter an award of 20% permanent partial disability based on Dr. A’s deposition, the only evidence it deemed competent.

The issues we must decide in this case are 1) did the trial judge err in ruling claimant’s medical evidence was not in compliance with the American Medical Association Guides to the Evaluation of Permanent Impairment and not considering it and 2) did the Court of Appeals err in determining it was Goodrich’s medical evidence that could not be considered because not in compliance with the Guides and, thus, in remanding with instructions to enter an award of 20% permanent partial disability in favor of claimant based on claimant’s medical evidence, the only evidence it deemed to comply with the Guides. We hold the trial judge and Court of Appeals erred in their consideration of this case because the medical evidence of both claimant and employer was competent, i.e. admissible. The medical evidence of both parties was also in substantial compliance with the Guides and, therefore, was of sufficient probative value to be relied on by the trial judge. Accordingly, because the trial judge failed to consider claimant’s evidence the case must be remanded to the trial judge so he, as fact-finder, can initially make a determination of the extent, if any, of job-related impairment.

The claimant’s medical proof, as noted, was offered by the deposition of Dr. A. Dr. A’s written medical report was attached to the deposition, but it was not offered as a separate exhibit. In such a case we properly look to the deposition testimony as the principal medical evidence in the case.1 Goodrich couched its objection to the deposition testimony of Dr. A both in terms of competency and probative value. At the hearing Goodrich stated it was not competent because the medical opinion was not consistent with the Guides and the doctor’s own testing showed claimant was not impaired. Goodrich apparently equates this objection as being synonymous with questioning the admissibility of the evidence. Instead, we view such an objection as going to the probative value of the evidence, if any, and nothing leads us to believe a valid objection was ever made to the admissibility of Dr. A’s deposition. Although we are not completely certain how the trial judge viewed the objection it appears his view coincided with that of Goodrich or, at least, he determined the medical [851]*851evidence submitted by claimant could not be considered by him in any determination of whether claimant was impaired and, if so, whether the impairment was job-induced. We hold he erred in such regard.

Recently, we have delineated the distinction between an objection on competency grounds and one made on grounds of probative value. In Whitener v. South Central Solid Waste Authority, 773 P.2d 1248 (Okla.1989) we stated:

In compensation practice, an objection to the “competency” of a medical report is directed to the exhibit’s admissibility on hearsay or other legal grounds. Another type of “objection” known to the practice addresses itself to the probative value of a physician’s letter-report.The real issue raised by the challenge to the exhibit’s probative effect is whether the evidence — once admitted — is probative of the elements it seeks to establish or, to use simpler parlance, whether it tends to prove that which it was adduced to show. In sum, a true objection resists only the exhibit’s legal admissibility, while a challenge for lack of probative value — the approximate functional counterpart of a district-court demurrer to the evidence — tests the legal sufficiency of targeted written proof to establish the evidentiary elements for which it was adduced, (emphasis in original) Id. at 1249 f.n. 1.

We believe the distinction between the legal import of a competency objection and one based on probative value is normally applicable whether or not the objection is being made solely to a written medical report or deposition testimony.2 We also view Goodrich’s arguments on appeal in regard to the medical evidence of Dr. A to be an attack based on probative value, rather than a true attack on its admissibility. We, thus, must determine if the medical opinion of Dr. A was, indeed, consistent with the Guides in relation to rating impairment to the respiratory system.

Goodrich argues Dr. A’s opinion was not consistent with the Guides based on two interrelated positions. It asserts because Dr. A admitted in his deposition the physiologic test results of pulmonary function he performed were above the lower limits of normal according to criteria established by the Guides and, according to Goodrich, at least one of the pertinent physiologic test results must be abnormal, a rating of 0% impairment was compelled. It also argues Dr. A’s opinion was impermissibly based solely on Dr. A’s interpretation of claimant’s complaint of dyspnea.

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Orrell v. BF Goodrich
1990 OK 13 (Supreme Court of Oklahoma, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
1990 OK 13, 787 P.2d 848, 1990 Okla. LEXIS 13, 1990 WL 11153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orrell-v-bf-goodrich-okla-1990.