*1 resentencing found general provisions Contrary to assertions O.S. Appellant’s O.S.1991, Livingston op- § here. The 929. also applicable § 926 is See (Okl.Cr.1990). by State, sentencing is established tion of P.2d 1055 Accord all granting option Legislature. While ingly, properly resen- we find instance, the in the first criminal defendants provisions O.S.Supp. tenced under the Legislature determined under has 1989, § 701.10a. option that is not O.S.Supp.1989, 710.10a. alleged by Ap- of the errors After review remand, in the to all available defendants any pellant, are unable to conclude we instance. is due the fact second This requires either re- occurred which has life is only is sentence decision whether Appellant’s sen- versal or modification of specific provi- parole. or without Accordingly, the of the trial sentence tence. gen- control over the sions Section 710.10a court AFFIRMED. is 929. provisions of Sections eral Appellant argues alternative LANE, JOHNSON, V.P.J., and CHAPEL applicable to him. 701.10a is not
that Section STRUBHAR, JJ., concur. only governs 701.10a He claims Section re-sentencing procedures capital cases long As he no
that have been remanded. is Appellant argues facing penalty,
er death longer capital no and he
his case is case have been re-sentenced under O.S.
should Although Appellant § 929. not still is penalty, is still a
faced with death this re-sentencing. capital purposes case for BARTELL, Appellant, James Don level, At the trial the State’s notice of intent penalty filing to seek death regular felony particulars transforms
bill Oklahoma, Appellee. The STATE capital penalty If the into a case. death ease No. F-90-0060. conviction, imposed after a the case is is not felony appeal. appealed regular as a Howev Appeals of Oklahoma. Criminal er, imposed by the penalty once the death is fact, capital ease trier of the case remains Sept. appeal, includes resen- until direct Rehearing Denied Oct. tencing proceedings, completed. is Section specific statutory provision 701.10a is deal penalty with cases the death is wherein
initially imposed by the trier of fact and that subsequently is set
sentence aside
Court and case remanded back to It
trial court. well established that when ap arise various statutes
conflicts between situation,
plying specif same more governs.
ic of the statutes Stiles v. (Okl.Cr.1992); Holder v. (Okl.Cr.1976). specifically designed
And when statutes are situation, Legislature given to treat a intent should be effectuated. Luster (Okl.Cr.1987).
State,
fore, Legislature it follows that the intended resentencing specific statutory procedure
designed capital cases found in Title precedence Section 701.10a to take over
. *2 go, replied she
why S.B. she did want James, In re- Appellant. did not like said sponse questioning, S.B. further very something bad had made her do James *3 elaborate, long did long, for S.B. not time. Bower, mother, happened to as her Glenda weekend, The return at time. next when renewed the conversation Wilkerson again grandparents. was at her child to tell promise not S.B. made Wilkerson angry, and would be Glenda she promise made not to tell. James had S.B. Again, Fearing the did elaborate. S.B. not Wilkins, Oklahoma and Jack Steve Hess worst, Glenda. Wilkerson told City, appellant. evening by questioned S.B. that Glenda Lane, Atty., Oklahoma Asst. Dist. Wes playing game parties would City, for State. mother list who loved. S.B. told her McCullar, Benjamin Appellate Indi- Asst. wife; Debbie, she Appellant’s she but loved Defender, Norman, appellant ap- gent on he made did not love James “because what peal. do,” adding had me act was bad and she Gen., long it for a time. S.B. then told her Atty. do Loving, Susan Brimer Steve “he me suck his weenie.” Kerr, Gen., mother made Atty. City, for Asst. Oklahoma by her what meant When Glenda asked she appeal. State that, got a doll which had S.B. collector’s penis, placed and her mouth over small OPINION finger in penis. put Then S.B. her her LUMPKIN, Judge: Presiding sucking it. acted if were mouth and as she Bartell, Don was James tried holding in his penis James She said was jury in the District Court Oklahoma it in her moving and it while hand CRF-88-6937, County, time, and convict- No. long Case This act for a mouth. continued (21 Sodomy of one count of Forcible Oral ed complained had to S.B. said. When she she 888). O.S.Supp.1982, § The recom- bathroom, uri- go James told her to ' (13) to thirteen mended he be sentenced sucking on the floor. continued nate S.B. years and the trial court sen- imprisonment, “juice” point until a came out when accordingly. publish We reaffirm tenced her on James’ “weenie.” told “hole” S.B. dealing principles constitutional er- had mother she told earlier because possibility being to, rors and the of those errors told feared James had her and she Simpson v. harmless in the wake of act angry would be with her. The Glenda (Okl.Cr.1994). before, hot when it was occurred summer “James,” only knew one
out. S.B. po- then Appellant. I. Glenda contacted lice. victim, S.B., years at the The was three old However, began her Bonnie Walker was committed. Police Detective
time
crime
asking
general,
light
nearly
come
until
interview with S.B.
her
the act did not
non-threatening
had
later,
July 1988,
questions. She then
year
S.B. was talk-
when
identify parts
anatomically correct
grandmother,
grandmother.
to her
The
S.B.
Wilkerson,
penis
she
on the
expressed
pointed
con- dolls. When
Ruth
testified S.B.
doll,
“weenie,”
it as a
going to
Bartell house with male
S.B. identified
cern about
thought
strange,
spontaneously adding
[or did]
“But James do
her mother. Wilkerson
questions
seemingly enjoyed
response
me.”
to more
past
that to
had
S.B.
Walker,
made her
S.B. stated James
visiting
playing
Bartells
with their
act
She continued the
young
Saphronia. When asked
“suck his weenie.”
daughter,
—
juice”
(Okl.Cr.1991),
denied,
“yellow
until a
came out and
went
cert.
mouth,
-,
(1992).1
adding
2940, 119
her
she didn’t like it. Testi-
mony was introduced to the effect
child
acknowledges
State
The
statute
grasp
did not
a firm
of colors
have
unconstitutional;
question was declared
how-
time
made the
she
statement.
S.B. said
ever,
responds
the court’s use of the stat-
clothes,
James did not take off
did
ute
analysis.
to a harmless error
pull
pants
during
his
down
the act. The
argues
harmless,
the error
State
repeated
child also
the incident where James
presented by
since the same matters were
told
if
her to urinate on the floor
she needed
herself,
examining
S.B.
as well as the
doctor
to, refusing
stop
go
to let her
family
members.
bathroom. Walker
*4
related
conversation
Recently,
Simpson
Court in
trial.
S.B. at
The interview was also
(Okl.Cr.1994),
Appellant introduced showing evidence he as it relates to non-constitutional errors did not psychologist commit the acts. A who thoroughly Simpson. discussed Id. at Appellant Appellant tested testified not did Simpson 697-701. notes that it when came Appellant exhibit sexual abnormalities. errors, however, to constitutional courts until pointing also introduced evidence to a former relatively recently assumed a constitutional possible culprit. Ap- husband of as a Glenda always necessitated reversal. The first pellant question did not have S.B. contrary appeared hint Fahy however, sodomy; been forced to commit the Connecticut, he denied had he committed the act. (1963). That case dealt with a Fourth Amendment violation which the Con- II. acknowledged necticut held but it error. reversing harmless In the Court ob- error, proposition For his Appellant first served: alleges he denied was his Sixth Amendment case, of confrontation videotaped when the theOn facts of this it is not now
interview necessary between Walker and S.B. was for us to decide whether the played jury. for the The record not does erroneous admission evidence obtained it, it reflect seems tape by illegal clear the search and seizure can ever played pursuant O.S.Supp.1986, to 22 § 752. to the normal rules of ‘harmless provision That was declared unconstitutional error’ under the federal standard of what by this Court in Burke v. constitutes harmless error. question case, repealed
1. The statute in object- 2. In Bartell’s trial counsel Legislature 197, § 1993. See Laws c. tape's being played jury. ed to the We before repeal interpretation Such renders our presented are therefore not with a situation moot, statute and we therefore see no need to object, where counsel failed to and whether that However, reconsider it. the Court did not con- object analysis. our failure affects analysis sider a harmless error We Burke. application now address of harmless error analysis to constitutional errors. However, as harmless. errors could never be treated 84 S.Ct. at Id. 375 U.S. Id., at 827. 386 at Harlan in his was framed Justice the issue where, dissent, reviewing opinion after deciding standard should be used what below, he discussion of its applying analysis to the harmless error stated: errors, Chapman Court constitutional can recognized first “harmless-error rules brings question This me very unfair and mischievous results” work does reach: constitution- Was examples highly important giving as “when apply ally permissible for Connecticut to evidence, persuasive argument, rule to save this convic- its harmless-error forbidden, though legally way into finds vitiating tion from otherwise effect guilt or inno- trial in which the unconstitutionally the admission Id. at cence is a close one.” why not. evidence? see no reason seized purpose Court stated the 827. The necessary It is no is obvious there rule, noting all such rules harmless-error connection between the fact that evidence rule “will have their aim a save unconstitutionally de- seized and the good practices avoid- in harmless-error while gree of harm caused its admission. bad, possible.” Id. at so far as question of harmless error turns *5 to The Court then looked S.Ct. at 827-28. inadmissibility reasons for stating: opinion Fahy, in its earlier of of effect the evidence context emphasizes The federal rule ‘substantial Erroneously particular admitted case. rights’ do The as most others. California may often be more ‘constitutional’ evidence emphasizes ‘a constitutional rule miscar- prejudicial erroneously ‘un- than admitted justice,’ riage courts of but the California the harm- constitutional’ evidence. Since have neutralized this to some extent plainly affords no shield less-error rule emphasis, overemphasis, upon perhaps and might damag- prosecutors use under ‘overwhelming of evi- court’s view obtained, evidence, unconstitutionally prefer approach of this dence.’ We conviction, danger is to there no secure deciding Court in what was harmless error application will that of rule undermine Fahy of v. our recent case State of prophylactic function of the rule of Connecticut, 85, 229, 11 375 U.S. 84 S.Ct. inadmissibility. ques- L.Ed.2d 171. There we said: ‘The Id., 94, 84 at 375 U.S. at S.Ct. 234. possi- tion whether there is a reasonable is years Four later Court resolved bility complained of that the evidence The is- framed Justice Harlan. might have contributed to the conviction.’ 18, California, Chapman sue in 386 U.S. Id., 86, Although 84 at our S.Ct. (1967) 824, 17 L.Ed.2d 87 S.Ct. centered prior that are cases have indicated there acknowledged Fifth Amendment around rights a fair some constitutional so basic to commenting on a fail- violation: defendant’s be trial that their infraction can never testify ure trial. con- The defendant error,3 as this statement treated harmless no error could harm- tended constitutional Fahy itself belies belief that all trial disagreed, noting less. The Court that all 50 which violate the auto- errors Constitution states, Congress, had as well as established matically call At same for reversal. rules; noting time, however, harmless-error statutes or that like the federal harmless- distinguished statute, no rule on face between emphasizes an error intention federal constitutional errors errors not to treat as harmless those constitution- state law or federal statutes and rules. As rights’ al that ‘affect errors substantial result, though party. admitting plainly the Court determined even An rele- error applied possibly automatic reversal had been vant evidence which influenced cannot, litigant past, jury adversely to a that itself did mean constitutional See, counsel); e.g., (right Tumey [Footnote Court] L.Ed.2d 799 v. State Number Arkansas, 560, Payne Ohio, v. State U.S. 78 S.Ct. 273 U.S. S.Ct. L.Ed. (coerced confession); Gideon (impartial judge). Wainwright, 372 U.S. Pahy, be conceived of as harmless. cannot. If the error under is to the harm- error, error, Certainly analysis, harmless-beyond-a- in ille- constitutional less-error prejudicial gally admitting highly applies. reasonable-doubt standard Howev- comments, er, or casts on someone than point, other can reviewing before it reach that prejudiced by person it a burden court must first determine whether the al- that it was harmless. It leged show error can be harmless at all. original reason that the common-law harm- put less-error rule the burden on the bene- B.
ficiary
prove
of the error either to
Chapman
past
observed
cases
injury
there
no
suffer a reversal
“indicated that there are some constitutional
erroneously
judgment.
his
obtained
rights so basic to a fair trial that their infrac
little, if any,
There is
difference between
tion can never be
treated
harmless error.”
Fahy v.
State Connect-
our statement in
examples: Payne
It
v. Arkan
cited three as
icut about Vhether there is a reasonable
sas,
356 U.S.
possibility that
complained
the evidence
confession)5;
(dealing with a coerced
Gideon
might have contributed to the conviction’
v. Wainwright, requiring
beneficiary
of a constitu-
(dealing
counsel);
L.Ed.2d
prove beyond
tional
error
a reasonable
Ohio,
Tumey
273 U.S.
complained
doubt
did not
(dealing
impartial
L.Ed. 749
with an
We,
contribute to the verdict obtained.
judge). Chapman,
386 U.S. at
and n.
therefore, do no more than adhere to the
The above
in danger
prison,
from
his life
in
while
confid-
provides
precept
some constitutional er
ed to
police agent
another inmate who was a
harmless,
rors can
solely
be considered
agent
and some
because the
said he would not
4. As the Court said:
to sustain
state
conviction constitutes
inde-
pendent
adequate
ground
judg-
and
state
Whether a
conviction
crime should stand
ment.”)
when a State has failed to accord federal con-
case,
appeal
As this
direct
is
this Court need
stitutionally guaranteed rights
every bit
is
as
Chapman
not determine whether the
harmless-
question
particular
much of
federal
as what
applies
post-conviction ap
error standard
provisions
federal constitutional
themselves
Abrahamson, - U.S. -,
peals. See Brecht v.
mean,
they guarantee,
what
and whether
-,
1710, 1713-14,
113 S.Ct.
have been denied. With faithfulness to the
(1993) (In deciding
whether
States,
constitutional union of the
we cannot
Chapman
applies
harmless-error standard
leave to
States the
of the
formulation
au-
prosecution’s
impeachment purposes
use for
laws, rules,
designed
thoritative
and remedies
petitioner’s post-Miranda silence
re
on habeas
protect people
by
from infractions
the States
lief,
Instead,
does
”hold[s]
not.
federally guaranteed rights.
determining
standard for
whether habeas relief
Chapman,
protect Fulminante unless proposition, Faced plete truth. with the factual the defen- decide murdering innocence, and sex- Fulminante confessed promotes guilt dant’s leaving ually assaulting stepdaughter, his by public respect process criminal for the body in Fulminante was convict- the desert. underlying focusing on the of the fairness majority of this confession. The ed based on virtually than trial rather on the inevitable was not harm- the Court held the confession presence error.” of immaterial less; however, opinion of the value 307-08, 111 Id. at S.Ct. at 499 U.S. dealing portion lies in the this discussion Arsdall, 475 U.S. (quoting Delaware v. Van be used at all harmless error could whether (citations omitted)). at at 1436 106 S.Ct. majority appeal. analyzing The Court, through speaking Justice Rehn- Chief the “trial errors” The Court differentiated analyzed the harmless- quist, cases where from it deemed “structural defects what used,6 conclud- analysis had been then mechanism, trial the constitution ed: defy analysis ‘harmless-error’ standards.” connecting thread these cases common Wainwright, Gideon pointed It 372 U.S. error” —error is that each involved “trial (1963) (in- 792, L.Ed.2d 799 presentation during which occurred volving deprivation the total jury, there- the case to the and which Ohio, trial); Tumey 273 U.S. counsel quantitatively the con- fore assessed (1927) (involv- L.Ed. presented text of order other evidence impartial), a judge who was not as exam- admission was to determine whether observing ples, “[t]he entire conduct of the beyond a doubt. harmless reasonable beginning obviously af- trial from to end analysis to applying harmless-error these counsel crimi- fected the absence of for a violations, many constitutional different defendant, just presence nal it is the Court has been faithful belief judge impartial.” who is bench doctrine is essen- the harmless-error 309-10, Id. 499 U.S. preserve “principle
tial
S.Ct. at
See,
trial,
e.g.,
Mississippi,
494 U.S.
defendant's silence at
violation of
Clemons
752-53,
1441, 1450-51,
Clause);
L.Ed.2d
Amendment Self-Incrimination
Fifth
*7
(1990) (unconstitutionally
jury
Evans,
605,
2049,
overbroad
in
725
Hopper
U.S.
102 S.Ct.
v.
456
sentencing stage
capital
of a
(statute
structions at
(1982)
improperly
the time act hap- anatomically something had the use correct dolls this his wife admitted categorized child; as scientific the that she was not as situation cannot be pened to Appellant as she had evidence. affectionate toward believed Appellant Both his wife been. doctor, Campbell, Denise Scott inter- abused; they sexually the child had been taHng history S.B. from a viewed after culprit. the simply denied only confu- social worker. She related the evidence, S.B. had about incident was its overwhelming we sion light In of this frequency: hap- have though she indicated it videotape, the admission of hold more once. told unconstitutional, pened than S.B. then rea- was harmless then what occurred. She demonstrated sonable doubt. acts, trial, using dolls. S.B. Likewise only used the dolls to demonstrate the act III. jury relating had after what occurred. error, Appel- assignment For his second pre find it We difficult believe allowing erred in lant contends the court school-age such as could make child S.B. testimony hear and see demonstra- Rather, of scientific effective use evidence. anatomically involving correct dolls. tions evidence, the dolls here demonstrative were used dolls to demonstrate S.B. in that were “not ... involved again pediatric resident and at trial what had event, litigable for illustra [were] offered instances, occurred to her. both use purposes only to tive make other evidence dolls recollection followed S.B.’s verbal comprehensible fact.” 2 more for the trier of of the incident.8 Whinery, L. Commen Oklahoma Evidence: appeal, Appellant claims the court On tary long Law Evidence at 424. So erred use of the dolls did meet “possesses] demonstrative evidence reliability the scientific standard enunciated degree accuracy representational nec States, 46, 47, Frye App.D.C. v. United essary to purposes fulfill their illustrative (1923). the stan 293 F. This is courtroom,” it need not meet some traditionally has used in dard Court admissibility stricter standards of as so- dealing with scientific evidence. See Yell v. “real” Id. called evidence. This Court has State, (Okl.Cr.1993); 856 P.2d admissibility held the of demonstrative evi (Okl.Cr State, P.2d Moore v. dence within the discretion of the trial State, .1990); P.2d Plunkett v. court, will whose discretion not be disturbed (OH.Cr.1986); State, Driskell Ngu absent abuse of discretion. See (Okl.Cr.1983). 343, (Okl.Cr.1988) State, yen 769 P.2d (admitting appellant the rela a shirt We note the existence of into evidence tively nearby apartment night pronouncement recent the United had left on the error.); States Daubert v. Merrell of the murders not Owens v. (Okl.Cr.1987) Pharmaceuticals, Inc., -, (admitting 960-61 Dow 509 U.S. (1993) pellet pistol that victim testified looked like gun appellant the introduction of the Evidence Code has “showed” her before he error); effectively Frye. raped Coggin The circum- her not overruled *9 1182,1185 (Okl.Cr.1987) preclude (holding from re- stances this case us P.2d refusal examining Frye tape our of the test as of court to an video use it admit educational First, pertains to the of Post our own Evidence Code. effects Traumatic Stress Dis objections, outweighed waiving probative we note the order its absence value proposition appeal plain, prejudicial appellant for all but effect not error; O.S.1991, 2104(A); repeating admissibility § 12 reversible error. demons- it, Appellant doll did raise but the record also ticular S.B. chose “a collector’s item not penis just happens shows S.B. act to and it to have kind of a little demonstrated sexual by using mother a collector’s doll the mother on it.” The mother said S.B. demonstrated the "put kept par- by taking at the act this doll and it in her mouth.” house. The mother testified the
101 question support a legal trative evidence is rele- his conviction. We reviewed that vance that is within the discretion of the trial evidence above connection our harm court). analysis. repeat less-error not We need it light here. In the most favorable to the jurisdictions Other faced with the prosecution, there is sufficient evidence to anatomically correct dolls have reached any allow rational trier of fact to find the requirements Frye need conclusion the the crime elements of reasonable involving applied techniques not be ana State, Spuehler doubt. 203-04 Oslund, tomically In correct dolls. State v. ( Okl.Cr.1985). (Minn.App.1991), N.W.2d 489 tests, deemed the were not dolls scientific V. tools,” adding “primarily but illustrative an Appellant next contends his sentence interpretation expert aspect by an is “a small He was excessive. sentenced to 13 testimony expert derived from these years imprisonment. punish The maximum techniques.” at 494-95. In Id. Matter of years. ment law allowed was 20 This Rinesmith, Mich.App. 376 N.W.2d repeatedly Court has will stated it not dis (1985), appeals 141-42 court held the turb a sentence unless it is so excessive that use of the dolls does rise to the level it shocks the conscience of Court. Bris rule, subject Frye scientific ob test State, (Okl.Cr.1988); tol v. 764 P.2d serving are not “[t]he dolls calculated to elicit State, (OH.Cr. 1342,1346 Casady v. 721 P.2d particular permit result tool to 1986); Moore v. 501 P.2d children to communicate ideas which are (Okl.Cr.1972). nothing There is shocking express” age unable to because of lack of or about this sentence. forced a vocabulary. also See Commonwealth him, three-year-old girl effecting to sodomize Trenholm, Mass.App. 442 N.E.2d profound change in the child’s outlook to (1982); Garrison, People 166 Mich. This proposition wards him. final is without App. (1988), vacat N.W.2d merit. ed on grounds, other 436 Mich. (1990); Accordingly, Jenkins, Appellant’s conviction is AF- N.W.2d 226 State v. (N.Dak.1982); Lee, FIRMED. N.W.2d 67 State v. 9 Ohio
App.3d (1983), ap N.E.2d 910 all LANE, Judge, specially concurring: proving anatomically use of correct dolls. disagree majority I do not with the when it Therefore, since the evidence a sci is not subjects admitting tape the error in to a requires entific test in it the sense a certain However, analysis. harmless error I do not reliability, Frye scientific test —or necessary. think it establishing reliability other test or trustwor my thiness, Daubert, dissent Burke v. see 509 U.S. at - n. (Okl.Cr.1991) expressed my I view that 113 S.Ct. at n. L.Ed.2d at n. 22 O.S.Supp.1986, 752 did violate the apply. 9 — need not And since the evidence Confrontation Clause of either state possessed here degree represen also constitutions, federal and that necessary tational fulfill accuracy illus code, limitations courtroom, evidence video purpose trative rele taped statement of a child victim vant and its was not admission error. nothing tape I find admissible. or its Therefore, plain we no see necessi- use that would make it inadmissible under tating proposition reversal. This is without code, and therefore vote to merit. using affirm the conviction without analysis. error” “harmless IV. JOHNSON, Presiding Judge, Vice Appellant’s The remainder of conten *10 dissenting:
tions do not necessitate extended discussion.
error,
For
in
proposition
agree
Judge Chapel
his third
of
I
the
of
dissent
herein,
doing
clarify my
contends
to
to
there was insufficient evidence
so
I need
majority opin-
analysis
part
I
that I
from the
agree with
position as to the dissent.
also
ion.
analysis
Judge Chapel that a harmless error
may
applied
videotape
the
that was
be
to
explicitly
majority
the
does not
so
While
§
I was
pursuant
to
O.S.
admitted
state,
it is
that
the unconstitutional
clear
opinion
as it relates to such
the author
the
videotape
plain
of the
here was
admission
(Okl.Cr.1991),
State,
their witness and opportunity argument. In the video-
tape saw and heard the child-victim
respond questions an uncontradicted
and unexamined account crime. Tulsa, Pat Padgett, petitioner. A. say beyond cannot reasonable doubt that A; this evidence did not contribute to the ver- Flynn Riggin, Tulsa, Robert Matt dict. I would reverse Bartell’s conviction respondents. remand for trial. a new
MEMORANDUM OPINION HUNTER, Presiding Judge: (Claimant) Judy Briggs was awarded compensation workers’ upon benefits the tri- finding al court’s permanent partial dis- ZEBCO MOTORGUIDE National ability. The trial court also ordered continu- Company,
Union Fire Insurance
ing medical treatment
for Claimant in the
Petitioners,
prescription
form of
medications. Petition-
challenge
ers
the trial court’s order authoriz-
ing continuing medical treatment for Claim-
Judy K.
BRIGGS and Workers’
ant
allege
finding
perma-
Compensation Court,
disability
nent
receiving
bars
from
Claimant
Respondents.
further
prescription
medical
treatment or
No. 82555.
medications, relying on the case of Bill
Gillum,
Hodges
Company
Truck
(Okl.1989).
Oklahoma,
Appeals
Court of
In Hodges
Company,
Truck
No. 3.
Division
permanent
Court determined that once
dis-
April
ability begins,
to receive further
Aug.
Ordered Published
by operation
medical treatment ceases
of law
except
very
explicitly
under
limited and
au-
thorized situations. The Court noted that
nursing
under the health and
services autho-
14, permanently
§
rized under 85
O.S.
dis-
abled worker
receive services which do
improvement
not afford an
or
alteration
condition,
physical
worker’s
but constitute
merely day-to-day
maintenance
the work-
er’s permanently
condition. In
disabled
find-
ing that
request
Gillum’s
for a heart trans-
plant
category,
did not fall within that
“[bjecause
explained
post-
regarded
award claim cannot be
as one for
day-to-day
care but is
maintenance
rather to
surgical
be treated as
an
one for
invasive
procedure designed
produce
an anatomical
change, it must
the same
meet
standards of
proof
applicable
as those which are
to a
reopening proceeding for additional medical
injured
services on
an
recurrence of
worker’s
healing period.”
P.2d at
1066-1067.
contrast,
seeking
Claimant herein is not
n
surgical procedure
invasive
medical
Burke v.
notes
Bartell
statute.
error. The
that
—
-,
denied,
opportunity
to confront and cross-exam-
t.
the
U.S.
cer
trial,
(1992).
the chüd-
ine the chüd-victim
that