University of Oklahoma v. Steinberg

2001 OK CIV APP 91, 29 P.3d 618, 2001 WL 815576
CourtCourt of Civil Appeals of Oklahoma
DecidedJuly 19, 2001
DocketNo. 95,210
StatusPublished
Cited by2 cases

This text of 2001 OK CIV APP 91 (University of Oklahoma v. Steinberg) 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
University of Oklahoma v. Steinberg, 2001 OK CIV APP 91, 29 P.3d 618, 2001 WL 815576 (Okla. Ct. App. 2001).

Opinion

TAYLOR, JUDGE:

1 1 Employer, University of Oklahoma, and Insurer, State Insurance Fund (collectively referred to as Employer), appeal an order of a three-judge panel of the workers' compensation court affirming the trial court's order finding a compensable change of condition. The issues on appeal are (1) whether Claimant's, Linda Steinberg's, motion to reopen, as it relates to injury to bladder and bowel, is barred, and (2) whether there is competent evidence to support a finding of change of condition to Claimant's back. Having reviewed the record and applicable law, we answer both questions in the affirmative, affirm in part, reverse in part, and remand for further proceedings.

12 On August 10, 1994, Claimant slipped and fell at work, injuring herself. She timely filed a Form 3, alleging injury to her head, neck, back, shoulders, arms, hips, and legs. On December 21, 1995, the workers' compensation trial court determined that Claimant sustained 15% permanent partial disability to the back and 8% permanent partial disability to the neck as a result of the accidental injury.

18 On May 14, 1997, Claimant filed a Form 9, asserting a change of condition for the worse. Although Claimant did not specify in her Form 9 the conditions that had worsened, it became apparent that, in addition to claiming a change of condition for the worse to her neck and back, Claimant was alleging a change of condition due to bladder and bowel problems. Employer denied the allegations of change of condition and also asserted that Claimant's motion, as to the bladder and bowel condition, was barred by res judicata and/or the statute of limitations.

T4 On May 8, 2000, the trial court issued an order reopening the claim on a change of condition, finding that "claimant has had a change in physical condition for the worse to the LOW BACK with aggravation of preexisting gastrointestinal problems affecting the BOWEL and BLADDER." The trial court denied a change of condition to the neck. Employer appealed to the three-judge review panel, which affirmed the trial court's order. Employer appeals the panel's order, arguing that Claimant's motion to reopen as it relates to the bowel and bladder condition is barred by res judicata, and that there is no competent evidence to support a finding of change of condition to the back.1

MOTION TO REOPEN FOR BOWEL AND BLADDER CONDITION

T5 Employer argues that Claimant's motion to reopen for a change of condition for consequential injury to the bowel and bladder is barred either by the statute of limitations or by res judicata. We agree that the claim is barred by res judicata; therefore, we do not address Employer's statute of limitations argument.

16 In Brown v. Oxy USA, Inc., 1993 OK CIV APP 63, 854 P.2d 378, the claimant filed a Form 8 alleging injury to her right arm and right hand. The trial court found permanent partial disability to the right hand, but none to the right arm. Two years later, the claimant filed a motion to reopen for a change of condition alleging injury to her right shoulder. The Oklahoma Court of Civil [620]*620Appeals held that the claimant could not reopen for a change of condition to the shoulder when the prior adjudication was for injury to the arm and hand only. Id. at T 11, 854 P.2d at 379. The court of appeals based its holding on the claimant's failure to raise the issue of injury to the shoulder in the original proceedings. According to the court, "When a matter is set for hearing on permanent disability, the claimant must indicate what injuries are to be heard and which specifically reserved.... If no injuries are reserved, all injuries are deemed at issue when the case is heard." Id. at 114, 854 P.2d at 380 (citing Frair v. Sirloin Stockade, Inc., 1981 OK 117, 685 P.2d 597). Therefore, the court held, all of the claimant's injuries arising from his accidental injury, including the injury to his shoulder, were at issue in the original proceeding, and the claimant was barred from raising the issue of impairment to his right shoulder in a motion to reopen proceeding.

17 Likewise, in the case at bar, Claimant filed her Form 3 but did not allege injury to the bladder and bowel. Further, prior to the adjudication of permanent partial disability on December 21, 1995, Claimant did not amend her Form 3 to allege bladder and bowel injury, even though it is clear from the record that the condition existed at the time of that hearing. At the December 1995 hearing to determine Claimant's permanent partial disability, Claimant was required to place at issue all injuries arising from the August 10, 1994, accident, including the bowel and bladder injury. Because she failed to do so, she may not raise the injury now in a motion to reopen for a change of condition.

18 Claimant attempts to save her claim by alleging that her bladder and bowel condition manifested itself after the original December 1995 adjudication. It is true that a motion to reopen is the appropriate vehicle for seeking benefits for a condition that is "after-manifested and progressed from the earlier compensable injury." Kirk v. American Airlines, 1998 OK CIV APP 168, ¶ 5, 972 P.2d 883, 885; see also Benning v. Pennwell Pub. Co., 1994 OK 113, 885 P.2d 652 (a reopening claim is authorized where there is a changed condition that unfolds itself after the last prior award). However, it is also clear that, if Claimant knew of the bowel and bladder condition and did not claim it prior to the first award, and disability is the result of the bladder and bowel condition, Claimant cannot obtain an award for the bladder and bowel condition in a reopening proceeding. See Oklahoma City Tent & Awning Co. v. Malson, 1961 OK 141, ¶ 11, 362 P.2d 971, 974.

{9 The record clearly shows that Claimant's bowel and bladder condition preexisted the December 1995 adjudication and, therefore, is not after-manifested. In the December 1995 hearing to adjudicate Claimant's permanent partial disability, Claimant's counsel asked her to describe her "problems" relative to the "injuries that [she] sustained on August the 10th." Claimant answered as follows:

My neck gets really stiff, Holding a phone is a problem to do phone work. I have a lot of tightness in between my shoulders in my back. My low back is constantly painful. I have a lot of pressure that goes down into the rectum, a lot of vaginal pain when the pressure is really intense. I have some sciatic nerve pain in my right leg. I'm having a lot of bowel and bladder spasms. (Emphasis added.)

Further, in the hearing on the motion to reopen, Claimant testified she had had a colonoscopy performed in March 1995,2 and began having problems after that: "I started having abdominal spasms with activity and movement and back pain, which is what sets all of it off, Moving around gets my back pain so intense. And then I start having bowel spasms." Claimant also described her bladder and bowel complaints as becoming exacerbated after the December 1995 hearing, necessarily indicating that they preexisted the hearing. Finally, Claimant admitted that she "had an element of [the bladder spasms] in 95."

110 The historical medical records also reveal that bladder and bowel complaints

[621]*621existed prior to the December 1995 hearing and, thus, are not after-manifested. On May 20, 1995, John C.

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Bluebook (online)
2001 OK CIV APP 91, 29 P.3d 618, 2001 WL 815576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/university-of-oklahoma-v-steinberg-oklacivapp-2001.