ATWOOD DISTRIBUTING LP v. CAMP
2017 OK CIV APP 22
| Okla. Civ. App. | 2016Background
- Claimant injured her right hip/back/right leg in a work incident on March 19, 2014; Employer accepted compensability for the back and paid 16 weeks TTD (including 8 weeks for an injection).
- Treating physician recommended right hip arthroscopic surgery; Claimant sought authorization and additional TTD via Form 9; Employer contested compensability of the hip and need for surgery.
- ALJ found the right hip compensable, ordered surgery, and initially awarded an additional 16 weeks TTD based on the surgery recommendation; Claimant later sought TTD for the waiting period prior to surgery beyond the 32 weeks already paid.
- Employer argued Claimant was limited to § 62’s nonsurgical soft-tissue TTD caps (8 weeks, +8 for injections, +16 by petition), so additional pre-surgery TTD was barred; Claimant argued § 62 does not apply once surgery is performed and § 45’s general TTD limits control.
- The Commission affirmed the ALJ, concluding that once surgery was performed the injury was no longer a “nonsurgical” soft tissue injury and § 45 (general TTD) applied; this court sustained that decision.
Issues
| Issue | Claimant's Argument | Employer's Argument | Held |
|---|---|---|---|
| Whether § 62’s nonsurgical soft-tissue TTD limits bar additional TTD for time before surgery when surgery is later performed | § 62 applies only to "nonsurgical" injuries; once surgery occurs the injury is surgical and § 45 governs, allowing additional TTD subject to § 45 limits | § 62 limits apply regardless; Claimant should be capped by the soft-tissue scheme even if surgery later occurs | Held for Claimant: Once surgery is performed the injury is no longer "nonsurgical," § 62 does not apply, and § 45 governs TTD for the relevant period (absent claimant bad faith) |
| Whether the Commission’s findings were insufficient regarding classification of pre-surgery care as maintenance vs. active care/reopening | Not raised before Commission; Commission’s order adequately set forth facts and law | Argued Commission failed to make specific findings on whether the pre-surgery period required reopening | Held for Claimant: Commission’s order was comprehensive and adequate; no merit to insufficiency claim |
| Whether delay in surgery (beyond § 62’s extension) caused by claimant in bad faith, which would bar extension | Claimant consistently sought authorization and did not cause delay | Employer suggested surgery delay could preclude benefits under § 62’s bad-faith provision | Held for Claimant: No evidence of claimant bad faith; delay not attributable to Claimant |
| Whether Bonat is distinguishable / controlling | Bonat supports that if corrective surgery would have been performed absent employer refusal, general TTD limits may apply; therefore persuasive here | Employer argued Bonat inapplicable to § 62 or facts here | Held: Bonat instructive; statutory silence treated similarly and supports applying § 45 once surgery actually performed |
Key Cases Cited
- Bed Bath & Beyond, Inc. v. Bonat, 186 P.3d 952 (Okla. 2008) (when corrective surgery for a soft-tissue injury is performed or would have been performed absent employer refusal, the general TTD limits govern rather than the nonsurgical soft-tissue caps)
- Williams Cos., Inc. v. Dunkelgod, 295 P.3d 1107 (Okla. 2012) (applicable law and standard of review determined by date of injury)
- Scott v. Sprint PCS, 274 P.3d 173 (Okla. Civ. App. 2012) (distinguishable: claimant had not commenced benefits prior to surgery so extension procedures differed)
- Travis v. Mays Housecall Home Health, Inc., 335 P.3d 279 (Okla. Civ. App. 2014) (distinguishable: surgery recommendation occurred long after injury)