BRAY v. PECOFACET HOUSTON, LLC
2017 OK CIV APP 30
| Okla. Civ. App. | 2017Background
- Claimant Edward Bray injured his left shoulder and reported neck complaints after a September 10, 2015 workplace injury; employer admitted the shoulder injury but denied a work-related neck injury.
- Employer provided initial treatment through its chosen clinic; imaging (x-ray, MRI) did not definitively diagnose a neck injury, and MRI report noted no disc herniation or significant stenosis.
- Treating clinic physicians recommended referral to a spine specialist; Claimant obtained an EMG/nerve conduction study on February 10, 2016 (showing cervical radiculopathy), apparently on his own and paid for it.
- The Workers' Compensation Commission (WCC) found Claimant sustained a work-related neck injury but ruled employer retained the right to select the treating physician, reversing the ALJ's order that Claimant could choose his physician.
- Central statutory question: whether employer had "actual knowledge" of the neck injury (triggering a five-day duty to provide treatment under 85A O.S. § 50) such that Claimant could not unilaterally select his own physician.
Issues
| Issue | Bray's Argument | Pecofacet's Argument | Held |
|---|---|---|---|
| Whether employer had "actual knowledge" of Claimant's neck injury, starting the five-day period to provide care | Employer had notice from claimant's complaints and physicians' referrals; five-day clock should have run | No express/actual notice existed before Feb. 10, 2016 EMG; prior tests did not establish a neck injury | Court: No actual knowledge proved before Feb. 10, 2016; five-day period did not begin earlier; claimant failed to show actual notice prerequisite |
| Whether Claimant may choose his own physician because employer failed to provide care within five days | Claimant argued employer failed to provide treatment within five days and thus he could select a physician | Employer argued it never had actual notice and therefore retained statutory right to choose physician | Court: Because Claimant did not prove actual notice, employer's statutory right to choose physician was sustained; court declined to decide whether claimant must incur unauthorized expenses to invoke the right |
Key Cases Cited
- Leche v. Ponca City Production Credit Ass'n, 478 P.2d 347 (Okla. 1970) (actual notice may be inferred from facts; defines contours of "actual notice")
- Heffron v. District Court of Oklahoma County, 77 P.3d 1069 (Okla. 2003) (questions of statutory interpretation present issues of law reviewed de novo)
- Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 932 P.2d 1100 (Okla. 1996) (appellate courts have independent review of legal questions)
- First State Bank v. United Dollar Stores, 571 P.2d 444 (Okla. 1977) (distinguishes actual vs. constructive notice)
- Creek Land & Improvement Co. v. Davis, 115 P. 468 (Okla. 1911) (actual notice may be proven by inference from surrounding facts)