Background

• Claimant sustained a work-related cumulative back injury in 2004 with prior TTD awards, and later had a 30% PPD to the lumbar spine with radiculopathy and disfigurement in 2007.
• In 2008 Claimant moved to reopen alleging worse condition and psychological overlay; Employer denied a change of condition for the worse.
• Trial in December 2009; Claimant testified of sleep deprivation and crying spells after starting an anti-depressant prescribed by Dr. Newey; no prior depression treatment.
• Claimant introduced McClure, a chiropractor, whose October 2009 report concluded psychological overlay with a 5% body-whole impairment, using AMA Guidelines and Zung Depression Test results.
• Employer objected to McClure’s testimony; trial court admitted the report; Dr. Gillock opined no psychological overlay; court found a 3% overlay and 12% additional back impairment; maintained medical maintenance for meds.
• Employer appealed solely on the admission and use of McClure’s report for psychological overlay; Claimant sought to tax costs for frivolous appeal, denied.

Issues

Key Cases Cited

• Scruggs v. Edwards, 154 P.3d 1257 (Okla. 2007) (Daubert issues relate to admissibility and probative value)
• Conaghan v. Riverfield Country Day Sch., 163 P.3d 557 (Okla. 2007) (AMA-guidelines-based opinions may be admissible; varying probative value)
• Brown v. Mom's Kitchen, LLC, 96 P.3d 808 (Okla. Civ. App. 2004) (expert testimony required to prove permanent disability)
• Okla. Natural Gas Corp. v. Schwartz, 293 P.2d 1087 (Okla. 1930) (chiropractor may testify as expert within scope of knowledge)
• Inter Ocean Oil Co. v. Marshall, 26 P.2d 399 (Okla. 1933) (recognizes qualified chiropractors as experts within their knowledge)
• Trout v. Gandy, 424 P.2d 52 (Okla. 1967) (physicians presumed competent to testify on mental condition)
• Holt v. State, 181 P.2d 573 (Okla. Crim. 1947) (general competency of medical experts)
• Turner v. Dewbre, 530 P.2d 144 (Okla. Civ. App. 1974) (chiropractor as expert within professional scope)