Spangler v. Lease-Way Automotive Transportation

1989 OK CIV APP 33, 780 P.2d 209, 1989 Okla. Civ. App. LEXIS 38, 1989 WL 106727

• Court: Court of Civil Appeals of Oklahoma
• Decided: June 13, 1989
• Docket: No. 72117
• Status: Published

Opinions

MEMORANDUM OPINION

REYNOLDS, Judge:

Larry D. Spangler (Employee) filed a claim in the Workers’ Compensation Court claiming injuries to his back that occurred during his employment with Lease-Way Automotive Transport (Employer). After stipulations by the parties, the only question before the trial court was the nature and extent of the injuries.

Employee’s medical expert found twenty-three per cent (23%) disability. Employer’s medical expert found zero per cent (0%) disability. The employee made an objection at trial to the admission of Employer’s medical evidence in accordance with Rule 21, 85 O.S.1987 Supp. Ch. 4, App. The trial court rated the permanent partial disability at ten per cent (10%).

Employee appeals that decision, stating that Employer’s medical evidence is incompetent as it does not comply with 85 O.S. Supp.1987 Ch. 4, App.Rule 20.

We find this assertion to be correct and the instant case to be controlled by La-Barge v. Zebco, 769 P.2d 125 (Okla.1988). See also Whitener v. South Central Solid Waste, 773 P.2d 1248 (Okla.1989).

In the instant case, Employer’s medical expert submits three letters of various dates. Only the last two of these are verified, and these two are not complete reports, merely brief updates.

As the Supreme Court said in LaBarge,

“The unverified discharge summary and the three letters cannot be welded into a medical report which is in compliance with Rule 20. Only one of the letters can be considered as the medical report, because Rule 20 requires a report to be signed by the physician and contain a verification statement. The signed letter is facially flawed and fails to comply with Rule 20, ... ”

The Supreme Court proceeds to list the deficiencies of the report ,by comparing it with Rule 20(a-i). The LaBarge case is directly analogous.

As Employer’s medical evidence is incompetent, it may not be considered by the trial court. Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okl.1984). The only competent evidence finds a 23% disability to the body.

The order of the Workers’ Compensation Court is VACATED with instructions to enter an award for 23% permanent partial disability to the body.

BAILEY, C.J., concurs with separate opinion. GARRETT, P.J., dissents with separate opinion.