307 P.3d 342
Okla.2013Background
- Adrian Melton, a truck driver for Joe Brown Co., was injured on Nov. 16, 2009 when a 200–300 lb wash rack fell on him while washing his truck.
- A Workers' Compensation three-judge panel awarded 11 weeks TTD, PPD for low back and neck, and PPD for a psychological overlay; continuing medical maintenance was also awarded.
- The Workers' Compensation Court initially found the injury arose within the scope of employment and awarded benefits; the employer appealed to the Court of Civil Appeals (COCA), which vacated/remanded some parts of the award.
- COCA applied the 2011 amended § 340(D) standard (“against the clear weight of the evidence”) when reviewing the panel’s PPD award; Melton argued the pre-amendment “any competent evidence” standard applied because the injury predated the amendment.
- The Oklahoma Supreme Court held the correct standard was the pre-amendment “any competent evidence” standard for injuries occurring before the statutory change, sustained the panel on TTD and physical impairment findings, but vacated the psychological-overlay award because a chiropractor was not qualified to diagnose depression.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard of appellate review (pre- vs post-amendment) | Melton: use "any competent evidence" because injury occurred before 2011 amendment | Employer: COCA correctly applied amended "against the clear weight of the evidence" standard | Court: apply "any competent evidence" (injury predated statutory change); COCA erred to apply new standard but result unchanged on some issues |
| Entitlement to TTD beyond 8 weeks for soft-tissue injury | Melton: objective evidence (permanent impairment) justifies >8 weeks | Employer: §22(8)(d) caps non-surgical soft-tissue TTD at 8 weeks absent objective permanent anatomical abnormality | Held: panel and COCA correctly found objective/credible medical evidence of permanent impairment; award sustained |
| PPD for low back and neck (AMA Guides compliance) | Melton: panel’s impairment findings supported by competent evidence | Employer: award must comply with AMA Guides 5th Ed.; COCA remanded for evidentiary deficits | Held: under any competent evidence standard, panel’s award is supported and sustained; remand unnecessary |
| Psychological overlay diagnosis & psychotropic maintenance | Melton: chiropractor’s testing (Zung) and report establish depression/psychological overlay | Employer: chiropractor lacks qualifications to diagnose psychological conditions; Zung test may not be admissible as objective medical evidence | Held: chiropractor not qualified to diagnose depression; chiropractor’s report as expert on psychology inadmissible; psychological PPD and psychotropic maintenance vacated |
Key Cases Cited
- Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okla. 1984) (discusses standard of review pre-amendment)
- Dunlap v. Multiple Injury Trust Fund, 249 P.3d 951 (Okla. 2011) (applied "any competent evidence" to pre-amendment injury)
- Nomac Drilling LLC v. Mowdy, 277 P.3d 1282 (Okla. 2012) (cited Dunlap on prospective application)
- Williams Cos. v. Dunkelgod, 295 P.3d 1107 (Okla. 2012) (held standard of review at date of injury is a substantive right requiring prospective application)
- Bed Bath & Beyond, Inc. v. Bonat, 186 P.3d 952 (Okla. 2008) (interpreting TTD limits for non-surgical soft-tissue injuries)
- Adecco, Inc. v. Dollar, 254 P.3d 729 (Okla. Civ. App. 2011) (addressed chiropractor testimony and psychological overlay issue)