Simmons Industries v. Hartman

1990 OK CIV APP 110, 807 P.2d 294, 62 O.B.A.J. 1099, 1990 Okla. Civ. App. LEXIS 121, 1990 WL 272713
CourtCourt of Civil Appeals of Oklahoma
DecidedDecember 11, 1990
DocketNo. 74392
StatusPublished

This text of 1990 OK CIV APP 110 (Simmons Industries v. Hartman) 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
Simmons Industries v. Hartman, 1990 OK CIV APP 110, 807 P.2d 294, 62 O.B.A.J. 1099, 1990 Okla. Civ. App. LEXIS 121, 1990 WL 272713 (Okla. Ct. App. 1990).

Opinion

BRIGHTMIRE, Chief Judge.

Did the Workers’ Compensation Court three-judge panel err in affirming the trial court’s award of additional temporary total disability benefits and medical expenses of the claimant for a neck injury arising out of the same job-related accident which caused a previously compensated back injury? We hold that it did not.

I

On October 22, 1986, the claimant, Ronald Hartman, was employed as a manual laborer for the employer, Simmons Industries. The claimant’s job involved shoveling ice to other parts of a storage compartment from a place where it accumulated near an ice-making machine. While standing on a large hill of ice, the claimant slipped and lost his balance, falling backward and sliding approximately twenty-five [296]*296feet down the hill, injuring his back, neck and right arm. Immediately after the accident, the claimant experienced pain “[f]rom up between [his] shoulder blades down [his] back, around [his] side and around through [his] groin and down [his] leg, real bad, and from down in [his] back a little lower it [came] around [his] side and [came] down to [his] groin and pain all down the backs of [his] legs.”

The claimant was examined by the employer’s doctor several days after the accident, and was advised that there was nothing wrong and that he could return to work. The pain persisted, however, so the claimant sought the advice of his family doctor, who proceeded to refer the claimant to several specialists.

On July 1, 1987, the claimant filed a Form 3 alleging an injury to his back arising out of an on-the-job accident October 22, 1986.

On March 1, 1988, a hearing was held on the issue of temporary total disability. The claimant stated that prior to the accident he had had no trouble with his back or neck. The medical evidence consisted of two reports by physicians, both of whom mentioned the claimant’s work-related accident and his complaints of neck and back pain.

The claimant’s expert, Dr. Hallford, opined that the claimant had been temporarily totally disabled since June 3, 1987, due to “severe neck and back problems which have resulted out of the injuries he sustained on October 18, 1986 \sic ], during the course of his employment with Simmons Industries.” He added that the claimant “has symptoms of radiculitis in both his right arm and right leg and could very well have a ruptured disc in both regions, but [the claimant] has objective evidence of sensory loss and weakness in his right arm and hand, indicative of C7/C8 radiculitis.” Dr. Hallford concluded that the claimant’s condition may require “surgical intervention” and noted that the claimant was scheduled to see a neurosurgeon the following week.

The employer, on the other hand, introduced a report by Dr. Chesnut who concluded that the claimant had no temporary or permanent impairment due to the fall. He stated that the claimant “has cervical spondylosis with spinal stenosis at C5-C6 level, possibly C6-C7.” Referring to the accident on October 22, 1986, as the “alleged injury,” the physician stated that the claimant's pathological “changes are primarily due to osteophyte formation and he has no evidence of [a] frank herniated disc.” Dr. Chesnut opined that the “changes [were] old and not due to or aggravated by [the] alleged injury”; and that the claimant “may work, [and] needs no further medical treatment....”

On March 4, 1988, the trial court entered an order awarding the claimant temporary total disability benefits. It found that the claimant had sustained an accidental injury to his back arising out of and in the course of his employment and was entitled to compensation from November 24, 1987, for a period not to exceed 150 weeks. The employer was ordered to furnish the claimant the “necessary medical treatment, care and attention for correction of claimant’s condition brought about by said injury by a competent physician to be selected by claimant.” This order was not appealed!

The claimant was paid temporary total disability benefits until November 25, 1988, when the benefits were discontinued pursuant to Workers’ Compensation Court Rule 15, 85 O.S.Supp.1989 ch. 4, app.

On December 21, 1988, the claimant requested a second hearing on the issue of temporary total disability. He alleged that he was still disabled despite the termination of benefits and requested that medical treatment continue from November 25, 1988, for an indefinite period.

On February 28, 1989, a second hearing was held before a different judge on the issue of temporary total disability. The claimant again related how the accident had occurred and outlined the extent of his injuries. He described his injuries as “a pain in [his] back going down [his] right leg and around and down into [his] groin and [he] had pains up, [came] down [his] back and down [his] arm and [he] had a big knot” which formed on his back. The [297]*297claimant further testified that he had never experienced any difficulty with his neck prior to the October 22, 1986, accident.

The claimant’s medical evidence consisted of a report by Dr. Covington, the neurosurgeon who had performed an anterior discectomy and fusion on the claimant at C5-6 and C6-7 on March 18, 1988. The employer’s objections to the introduction of this report on competency and probative value grounds were premised generally on violations of Workers’ Compensation Court Rule 20. Specifically the employer alleged that the report did not address the proper standard for determining temporary total disability. Consequently the claimant was given leave of court, without objection, to supplement his medical evidence. The neurosurgeon’s deposition was taken April 26, 1989, and filed with the court May 22,1989. The employer offered the report of Dr. Framjee and another report by Dr. Coving-ton dated January 12, 1989.

On July 19, 1989, the trial court entered an order awarding the claimant additional temporary total disability benefits from November 25, 1987, to April 13, 1989 (less nine days that the claimant worked) based on a finding that the claimant’s back injury had “exacerbated a pre-existing neck condition (degenerative spondylitic disease) necessitating surgery (anterior discectomy) to the claimant’s neck (C5-6 and C6-7) on March 18, 1988.” The court also ordered the employer to pay certain enumerated medical expenses incurred by the claimant, and reserved ruling on other bills pending proper certification and a later hearing.

The employer appealed the July 19, 1989, order to a Workers’ Compensation Court three-judge panel and on October 27, 1989, it affirmed the order.

The employer seeks review of the order.

II

The employer’s principal contention may be framed this way: The trial court’s order of March 4, 1988, awarding temporary total disability benefits for the claimant’s back injury is a final order which could not later be modified by the trial court unless founded on a change of condition for the worse.

The argument is that since the lay and expert testimony presented at the first hearing made specific reference to the claimant’s neck injury, and the trial court only awarded compensation for an injury to the back, the court by implication agreed with the employer that injuries to the claimant’s neck were not compensable. We disagree.

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Cite This Page — Counsel Stack

Bluebook (online)
1990 OK CIV APP 110, 807 P.2d 294, 62 O.B.A.J. 1099, 1990 Okla. Civ. App. LEXIS 121, 1990 WL 272713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-industries-v-hartman-oklacivapp-1990.