Isearch Results Page | of 7 Filename: m0017755 Match Number: 3 of 33 Score: 122 Entry_Date: 030407 Appellant: Ameriresource Group, Inc. and Compsource Oklahoma Jurisdiction: Court of Appeals of Oklahoma, Division No. 2 Hearing Date: February 13, 2007 Text_of Rule: (Fischer ) (Richard L. Blanchard ) Not Published PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT SUSTAINED Darren Derryberry, Oklahoma ;, Oklahoma, For Petitioners John C. Forbes, FORBES & FORBES, Oklahoma City, Oklahoma, For Respondent OPINION This is an appeal from an order of a three judge panel of the Workers' Compensation Court, which affirmed the Trial Court's order awarding Worker Calvin Stroud temporary partial disability (TPD) benefits in addition to the eight weeks temporary total disability (TD) benefits Employer had previously paid. Based on our review of the record an appeal and applicable law, we sustain the order. BACKGROUND FACTS ‘Worker was employed as a foreman. On August 8, 2005, he suffered an on the job electrocution injury while working near an electrical box. He lost consciousness and fell down, sustaining injuries. Employer provided medical treatment and, on August 12, 2005, began paying Worker weekly benefits for TTD without an order of the Workers’ Compensation Court. Employer continued the TTD payments for eight weeks. Worker filed his Form 3 on September 8, 2005, alleging injury to his back, right knee and psychological overlay, Worker began receiving treatment from Dr. Odor, who, after examining Worker on November 14, 2005, released him to return to work on light duty restrictions that included "no repetitive bending, twisting, or lifting greater than ten pounds." Dr. Odor reviewed the results of an MRI of Worker's Jumbar spine that had been taken one month earlier, noting "clinical symptomatology secondary to Worker's injury.” Dr. Odor further noted indications of strains to Worker's cervical and thoracie spine, for which he recommended Worker receive further treatment, including additional MRI scans of those areas of Worker's spine. hitp://oklegal.onenet net/oklegal-cgi/isearch 9/20/2007Tsearch Results Page 2 of 7 Employer offered Worker light duty within the restrictions imposed by Dr. Odor, and Worker accepted the light duty. However, Employer offered Worker only 15 hours per week at a reduced wage of $6.00 pet hour. His average weekly wage dropped significantly. Before his injury, Worker's average weekly wage had totaled $578.20. Worker filed a Form 9 motion to set for trial the issue of TPD. He also requested approval for additional medical treatment -specifically the MRI recommended by Dr. Odor. Employer objected to Worker's request for TPD benefits, arguing that the eight weeks TTD it had paid Worker constituted the total amount of benefits he was entitled to for a soft tissue injury under 85 0.S. 22(3)(d) (2005).1 Employer did stipulate, however, that the appropriate rate for TPD would be $341.74, if the Trial Court found that Worker was entitled to the benefits in addition to the TTD. Employer's counsel did not object to the request for additional medical treatment, stating that "if the Court is so inclined, I don't have any medical evidence in the alternative." The Trial Court found that Worker sustained a compensable injury to his lumbar, thoracic and cervical spine and reserved the issue of alleged injury to the right knee for future hearing. After noting the parties’ stipulation that Worker had suffered a "soft tissue injury,” the Trial Court further found: "THAT claimant was paid 8 weeks of temporary total disability as required by 85 0.S. 22 (2005). Claimant was released to light duty work and on November 14, 2005, Employer provided claimant with a light duty job. Claimant worked 15 hours per week @ $6.00 per hour. Claimant had an average weekly ‘wage of $578.20 prior to his injury. The difference between claimant's average weekly wage and claimant's weekly wages after November 14, 2005, is $488.20. 70% of this figure equals $341.74 which is claimant's temporary partial disability rate. Claimant shall receive $341.74 per week for temporary partial disability for a petiod not to exceed 52 weeks from the date of this order or until further order of this court." The Trial Court ordered Employer to provide Worker with all reasonable and necessary medical treatment, including the additional MRI recommended by Dr. Odor. The Trial Court reserved the issues of underpayment and/or overpayment of temporary disability benefits and permanent disability, if any, for future hearing, Employer appealed to a three-judge panel, which affirmed the order of the Trial Court. Employer now seeks review in this Court. Employer claims that the Trial Court erred as a matter of law by awarding Worker TPD benefits because: (1) the award exceeds "the statutorily capped eight weeks TTD benefits for his and neck injuries;" and (2) the, record is devoid of any competent evidence indicating between Worker's reduced hours and his injury, STANDARD OF REVIEW The parties disagree as to the applicable standard of review. Employer urges this Court to conduct ade novo review to address application of the eight-week TTD benefit for soft tissue injury, set forth in section 22(2)(c), to the lower court's order regarding TPD. Worker argues that the any-competent- evidence standard applies. See Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548. The issue of temporary disability, whether total or partial, is a question of fact to be decided by the Workers* Compensation Court. The lower court's determination of this issue will not be disturbed on review by this Court if it is supported by any competent evidence and is not contrary to law. Gray v. Natkin Contracting, 2001 OK 73, 11, 44 P.3d 547, 550; Richardson v. M. & D. Freight Lines, Inc., 1957 OK http://oklegal.onenet.net/oklegal-cgi/isearch. 9/20/2007Isearch Results Page 3 of 7 246, 0, 322 P.2d 192 (Syllabus 1). DISCUSSION 1, Employer's payment of eight weeks TTD did not, as a matter of law, preclude Worker's recovery of TPD. Section 85 0.S, 22 of the Workers’ Compensation Act is entitled "Schedule of Compensation." It was first enacted in 1915. At that time, it was divided into four subsections, each dealing with a type of disability -permanent total, temporary total, permanent partial (PPD) and temporary partial. Starting with amendments in 1993, the Legislature began to segregate injuries by date and varied the amount of compensation depending on when the injury occurred. See 1993 Okla. Sess. Laws, ch. 349, 10; 1997 Okla. Sess. Laws, ch. 361, 9. In its current form, the statute distinguishes those injuries occurring before November 4, 1994, from those occurring during defined periods on or after that date with regard to TTD, PPD and TPD. The latest amendment to section 22, effective July 1, 2005, added a "soft tissue injury" paragraph to the PPD portion of the statute, See Okla, Sess. Laws 2005, Ist Extr. Sess., ch. 1, 20, Subsection 85 O.S. 22(2) is entitled "Temporary Total Disability." The applicable version of the subsection is 85.0.8. 22(2)(c) which provides, in pertinent part: "(c) With respect to injuries occurring on or after November 1, 1997, total payments of compensation for temporary total disability may not exceed a maximum of one hundred fifty-six (156) weeks in the aggregate except for good cause shown, as determined by the Court. Total payments of compensation for temporary total disability, inclusive of consequential injuries, may not exceed a maximum of three hundred (300) weeks in the aggregate.” Section 85 0.8. 22(3) is entitled "Permanent Partial Disability." Section 22(3)(d) provides: "With respect to injuries occurring on or after January 1, 2003, in case of disability partial in character but permanent in quality, the compensation shall be seventy percent (70%) of the employee's average weekly wages, and shall be paid to the employee for the period prescribed by the following schedule: sane nes *Soft Tissue Injury: In case of a nonsurgical soft tissue injury, temporary total compensation shall not exceed eight (8) weeks. A claimant who has been recommended by a treating physician for surgery for a soft tissue injury may petition the Court for one extension of temporary total compensation and the court may order such an extension, not to exceed sixteen (16) additional weeks, or the treating physician indicates that such an extension is appropriate or as agreed to by all parties. In the event the surgery is not performed, the benefits for the extension period shall be terminated, For purposes of this section, "soft tissue injury" means damage to one or more of the tissues that surround bones and joints. "Soft tissue injury” includes, but is not limited to: sprains, strains, contusions, tendonitis, and muscle tears. Cumulative trauma is to be considered a soft tissue injury... . “In all cases of soft tissue injury, the employee shall only be entitled to appropriate medical care and temporary total disability as set out in paragraph two of this section, unless there is objective medical evidence of a permanent anatomical abnormality. In determining the existence of such an abnormality, the Court may consider if there is credible medical evidence that the ability of the employee to earn ‘wages at the same level as before the injury has been permanently impaired.” http://oklegal.onenet.net/oklegal-cgi/isearch. 9/20/2007