FILED

JUN 1 ?009
NOT FOR OFFICIAL PUBLICATION WORKERS' COURT COMPENSATION

IN THE COURT OF CIVL APPEALS OF THE STATE OF OKLAHOMA DIVISION II OKLAHOMA DEPARTMENT OF HUMAN SERVICES,and OKLAHOMA, COMPSOI.JRCE Petitioners, vs. CHARLOTTE JACKSON, and THE WORKERS' COMPENSATION COURT, Respondents.

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w.c.c. {f 2007-Lo645K CaseNo. 105,926

TO PROCEEDING REVIEWAN ORDEROF COURT THE WORKERS'COMPENSATION MICHAEL J. HARKEY,TRIAL ruDGE HONORABLE
SUSTAINED

MargaretA. Bomhoff FELLERS, SNIDER, BLANKENSHIP, P.C. BAILEY & TIPPENS, Oklahoma City, Oklahoma

For Petitioners

Brandon J. Burton T.R. Banks P.C. BURTON & ASSOCIATES, Oklahoma Oklahoma City,

For Respondents

OPINION BY JANE P. WISEMAN, VICE CHIEF JUDGE: OklahomaDepartmentof Human Services(DHS) and Compsource Oklahoma(collectively, Employer) seekreview of an order of the Workers' Court awardingCharlotteJackson(Claimant)permanentpartial Compensation disability (PPD) benefits for an injury to her neck and lumbar back. The issueon appealis whether there is competentevidenceto supportthe trial court's findings permanentimpairments. We find that the trial court's that Claimant sustained decisionis supportedby competentevidenceand sustainits order. FACTS AND PROCEDURAL BACKGROUND Claimant filed a Form 3 on September12,2007, claiming she sustained injury to her neck and left shoulderduring a motor vehicle accident. Employer did not disputethat Claimant zuffereda work-relatedinjury. On November 15,2007, Claimant filed anotherForm 3 in which she claimed an injury to her back arising out of the sameaccident. At the trial held on May 13,2008,Employerdeniedthat Claimantwas perrnanentlydisabled. Claimant testifiedthat on August 18,2007, shewent "on an at errandto get pizza for the team, and on the way back [she] was rear-ended a red lighL" Claimant testified shewas seenat the "Baptist EmergencyRoom" on the day of the accidentor the day after. Shewent to seeDr. Michael Chiaffitelli within

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a week or two of the accident. Shewas releasedto go back to work in October 2007,but after shewent back to work, shecontinuedto have problems. Claimantsaw Dr. A.J. Bissonon November19,2007,and he orderedMRI 'ohe testing on her back and neck. After Dr. Bisson reviewedthe MRI results, basically determinedtherewas not much in the way of treatmenthe could do for Claimant on, [her] from.that"time otherthan home exercises."Dr. Bissonreleased from his careon January18, 2008. At the time of fiial, Claimant testified that the only medicationshewas Tylenol. She claimedthat she was still taking for her injury was over-the-counter having problemswith her neck and back. Shetestified that shehaspain in her neck everyday. She also haspain in her left shoulderand low back and she cannot sit for long periodsor lie down without thesebody parts botheringher. Shealso testified that climbing stairshurts and sheis unableto do householdchoresbecause of the pain. When askedif shewas ever pain free in her low back, Claimant 'oNotoften." During cross-examination; Claimant admittedthat she responded, doesnot have any restrictionsat work, she still works full time, and shehasnot had any reductionin her paY.

At the conclusionof testimony,Claimant offered Dr. Lance Rosson'sreport into evidence. When askedif therewere any objections,Employer's attorney statedthe following: Your HonornI have an objectionregardingthe rating, both the neck and the back rating. The back has 5 percentsoft tissuerating, and there's a 4 percentrating for soft tissuefor the neck. I don't think there's any evidenceof any objective and permanentanatomical abnormality. Dr. Rossonsaysthere is, but he doesn't tell us what that is exactly. And basedupon the MRI's, I don't think it supportsa finding of permanentdisability' The court statedthat it would take Employer's objectioninto consideration.The court went on to state: of I'm not surethat the Guides give a percentage impairmentfor "soft tissue" injury, but I'll have to considerwhetherthe rangeof motion is an anatomical abnormality. I don't know. I'll considerit one way or the other. But I'll think about your probativevalue your comments,but otherwise objection. I appreciate overnrled and it will be admittedas Claimant's Exhibit 1. rangeof motion testingon Claimant'sback which Dr. Rossonperformed (2) producedthe following results: (1) true lumbar flexion to 40 degrees, true (a) (3) lumbar extensionto l5 degrees, right lateral flexion to 15 degrees, left on (5) lateral flexion to l5 degrees, straightleg raising is positive at 65 degrees the right and 65 degreeson the left. The range of motion testingon Claimant's neck

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(2) producedthe following results: (l) flexion to 40 degrees, extensionto 40 (4) (3) degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, (6) (5) right rotation to 60 degrees, left rotation to 50 degrees.As to both setsof were obtainedby . range of motion tests,Dr. Rossonstated,"These measurements dual inclinometerand they satisfythe validity criteria for rangeof motion with the AMA Guidelines." . measurements . . in accordance partial an Dr. Rossonopined that Claimant had sustained lsYopermanent 'obased upon impairmentto the body as a whole as a result of the injury to her back due l l% due to range of motion abnormalitres,5%o to soft tissueinjury, and2o/o injury." Additionally, Dr. Rossonfound that due to residualneurosensory Claimant sustaineda lTYopennanentpartial impairment to the whole personfrom the injury to her neck. Dr. Rosson'scalculationwas o'based upon 8% due to range

due of motion abnormalities,4Yo to soft tissueinjury, and 5Vodue to residual injury." neurosensory the Employerpresented reportof C.B. Pettigrew,D.O., in which he gavethe no opinion that "[Claimant] has sustained permanentpartial impairment" and oosustained anatomicalabnormalityto the cervical,thoracic,or lumbar spine,or no left shoulderas a result" of her work-relatedaccident. In his evaluation,Dr.

Pettigrewperformed rangeof motion tests,the resultsof which differed in many areasfrom the testsperformedby Dr. Rosson. Employer also submittedthe medical report of Dr. A.J. Bisson,which indicatedthat Claimant's cervical and lumbar strainshad resolvedand that shehad maximum medical improvement. Dr. Bisson stated,"[s]he can partakein reached fulIduty work activities. I would not anticipatethereto be a need for any type of work restrictionsto be placedupon her, particularly grventhe findings of her MRI studies. Additionally, one would not anticipatethereto be any permanent impairment." an The trial court found Claimant sustained accidentalpersonalinjury to her neck and lumbar back arising out of and in the courseof her employmentwith DHS, and that she was paid temporarytotal disability benefitsfrom August 24-28, 2007 and Septemberl8 through October 28,2007. The court found that Claimant , ..sustained percent 7 IPPD] to the NECK (permanentanatomicalabnormality)and 9 percentIPPDI to the LUMBAR BACK (permanentanatomicalabnormality),for for which Claimant is entitled to eompensation 80 weeks." Employer appeals.

STANDARD OF REVIEW We may not disturb atialcourt's non-jurisdictionalfindings if supportedby OK 37,n 6, CountySheriff'sOffice,1998 v. proof. Lanrnan Oklahoma competent 9 5 8P . 2 d7 9 5 , 7 9 8 . ANALYSIS On appealEmployer contendsthat the trial court's award of PPD is not by supported objective medical evidence. Employer claims that the MRI report offered by Claimant doesnot supportan award of PPD. The MRI report introducedby Claimant statedthat the MRI of the lumbar spine is "[u]nremarkable." Employer claimsthat Dr. Rosson'sreport doesnot even indicatethat he reviewedeither of the reportsof the MRIs performedon Claimant. Employer contendsthat this meansthat Dr. Rosson'sfinding ofpermanent impairmentis not supportedby competentevidence. Employer additionally that Claimant is not entitledto PPD for a soft tissueinjury. contends Title 85 O.S. Supp.2008 $ 22(3Xd)provides,in parto Soft TissueInjury: In caseof a nonsurgicalsoft tissue shall not exceed injury, temporarytotal compensation eight (8) weeks. A claimant who has beenrecommended by a treatingphysicianfor surgeryfor a soft tissueinjury may petition the Court for one extensionof temporary and the court may order such an total compensation extension,not to exceedsixteen(16) additionalweeks,if

the treating physician indicates that such an extension is appropriateor as agreedto by all parties. In the event the surgeryis not performed,the benefits for the extension period shall be terminated. For purposesof this section, "soft tissueinjury" meansdamageto one or more of the tissuesthat surroundbonesand joints. "Soft tissue injury" includes,but is not limited to: sprains,strains, tendonitis,and muscletears. . . . contusions, (d) (Emphasisadded.) Subsection further provides: In all casesof soft tissueinjury, the employeeshall only medical care and and necessary be entitled to appropriate in paragraph2 of this temporarytotal disability as set out section,unlessthere is objectivemedical evidenceof a perrnanentanatomicalabnormality. In determiningthe existenceof suchan abnormality,the Court may consider if there is crediblemedical evidencethat the ability of the employeeto earnwagesat the samelevel asbefore the injury has beenpermanentlyimpaired(Emphasisadded.) Therefore,under current law, PPD can only be awardedfor soft tissueinjuries when there is objectivemedical evidencethat the claimanthas a permanentanatomicalabnormality. SinceJanuary30,2006,Rule 20(c) of the Rulesof the Workers' Court, 85 O.S. Supp.2006, ch.4, app.,hasprovided: Compensation or Medical opinions concerningthe existence extentof perrnanentimpairmentmust be supportedby objective of medical evidence permanentanatomicalabnorntality, cases, may include medical evidence and, in appropriate that the ability of the employeeto earnwagesat the same level as beforethe injury has beenpennanentlyimpaired. Medical opinions supportingemploymentas the major

deterioration or causeof occupationaldisease age-related by must be supported objectivemedical or degeneration, evidence. "Obiective medical evidence"includes rnedtcaltestimonythat restson reliable scientific, the technicalor specializedknowledge,and assists Court to understandthe evidenceor to determinea fact in issue. (Emphasis added.) Title 85 O.S. Supp.2008 $ 3(17) defines"objectivemedical which meetsthe criteria of FederalRule of Evidence702 evidence"as 'oevidence and all U.S. SupremeCourt caselaw applicablethereto." Here,both Dr. Rossonand Dr. Pettigrewperformedrangeof motion tests. Basedon his findings, Dr. Rossonconcludedthat Claimant sufferedfrom rangeof that there is no objective motion abnormalities.Although Employer asserts medical evidenceof an anatomicalabnormality,Employer doesnot take into and accountthat theserangeof motion testswere performed. that Dr. Rossonbased his medical opinion in part on the resultsof the tests,as evidencedby the fact that Dr. Rossongave the opinion that Claimant'spermanentdisability was based,at leastin part,on her lossof rangeof motion. Also, Dr. Rossonspecificallycitesthe AMA Guidelinesin supportof his testingresults. Under 85 O.S.Supp.2008 $ 3(19), 'nPermanent impairment" meansany anatomical abnormality aftermaximum medical improvementhas been achieved,which abnormalityor loss the physician considersto be capableof being evaluatedat the time the

rating is made. Except as otherwiseprovided herein, any examining physicianshall only evaluateimpairment in with the latestpublication of the American accordance Medical Association's"Guides to the Evaluationof PermanentImpairment" in effect at the time of the injury. . . . All evaluationsof permanentimpairment must be supportedby objectivemedical evidence.. . . Dr. We find no trial court erroi in awardingPPD benefitsto Claimant because Rosson'sopinion that Claimant has a permanentanatomicalabnormality objective medical evidenceunder $ 22(3Xd) to supporta PPD award. constitutes Dr. Rossonreviewed Claimant's medicalhistory, performedteststo determineif shesufferedfrom loss of rangeof motion, and usedthe AMA Guidesto evaluate Claimant'sdisability. that "[n]o evidencewas offered to show that the Employer also asserts Claimant's abitity to earnwagesat the samelevel as before the injury was in any way impaired." And due to the lack of this evidence,the trial court erredwhen it awardedPPD benefits. of This issueis not, however,determinative this appeal. Section22(3)(d) ability doesnot mandaterelianceon such a finding of impaired wage-earning before PPD may be awarded- it simply allows the trial court to use sucha finding in its considerationof the issue. Even without sricha finding, the fiial court had of Dr. Rosson'sopinion,basedon his examination Claimantand Claimant's

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medical records,that Claimant had a permanentanatomicalabnormalityto her back and neck on which the court could baseits award of PPD. with Dr. with Dr. Rosson'sconclusionwhen contrasted One may disagree Bisson's or Dr. Pettigrew's opinion, but this determinationrequiring weighing the evidenceis purely within the province of the trial court, and its decisionon this issuewill not be disturbedon appealunlessthere is no competentevidenceon which to base it. Parks v. NormanMun. Hosp., 1984OK 53, tl 12,684 P.2d 548, 552;seealsoBerg v. ParkerDrilling Co.,20O4OK72, fl 14,98 P.3d 1099,I l0lrnc.v. creek,l979 oK ll, fl 19,590P.2d197, 02 (quotingRefrigeratedTransp., of 200) (The determination the weight and probative value of evidence,including medical evidence,is within the exclusiveprovince of the Workers' Compensation Court "which may acceptall or part of the evidence,or reject the evidence entirely."). CONCLUSION We find that the trial court's decisionis supportedby competentevidence. The decision of the fiial court is accordingly sustained. SUSTAINED. BARNES, P.J.,and GOODMAN, J., concur. June 1,2009
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