*1 short, deciding theory Because the Bank’s responsibility for on which In summary judgment necessarily an officer was secured cannot whether to dismiss stand, today we need not nondelegable duty actually to consider whether includes the prius victory, the Bank’s nisi based on fed- make that decision. 24(Fifth), pre-emption by eral would have nothing to indi The record contains entitled it to a counsel-fee award that approved or cate that the Board had either stands authorized 936. 24, 1986 ter plaintiffs ratified the March THE COURT OF APPEALS’ OPINION Indeed, CEO mination for “cause.” VACATED; THE IS TRIAL COURT’S March in his affidavit: “On or about states REVERSED; SUMMARY JUDGMENT IS 24,1986 discharged the Plaintiff from CAUSE REMANDED FOR FURTHER According the min CNB [the Bank].” PROCEEDINGS NOT INCONSISTENT meeting, utes of the March 1986 board WITH THIS PRONOUNCEMENT. others, Sargent, along many came to “layoff” be slated for to “reduce over HODGES, LAVENDER, day head.” The Plaintiffs last was to have DOOLIN, HARGRAVE and ALMA been June 1986. This information WILSON, JJ„ concur. leaves that a fact issue still exists no doubt Sargent’s effect on whether dismissal was J., KAUGER, concurs in result. ed the Board. SUMMERS, J., concurs in sum, summary judgment In record part. dissents in protected federally does not establish a dis- charge i.e., one which has been accom- — SIMMS, J., dissents. entity plished 24(Fifth) power to dismiss at will—the board of directors. Should other fact is- regarding applicabili-
sues the federal law’s
ty develop plaintiff on remand and take the purview, pre-emption
out of the statute’s actionability
will not avail as a bar to on
Sargent’s contract-related theories.
IV.
THE COUNTER-APPEAL sought The Bank had corrective BRANSTETTER, Petitioner, Janice Y. relief from the trial court’s of its denial request grounded counsel-fee O.S. pre 1981 936. This section entitles the PUMP, Risk, and the Own TRW/REDA vailing party to counsel-fee award in an Court, action to recover “for labor services.” Respondents. Sargent urged had that the Bank’s counter- appeal timely dismissed for failure No. 70759. copy petition-in-error serve a of the opportunity respond. requested had Supreme Court Oklahoma. permitted response This court but de April 1991. quest. ferred its on the dismissal deny Sargent’s delay We motion. The now receiving copy petition-in-error jurisdictional
is neither a defect nor has Sargent’s rights. prejudice
worked *2 Bell, Norman, petitioner.
Richard A. Deaton, Rhodes, Hieronymus, Jo Anne Jones, Gable, Tulsa, Tucker respon- dents.
SUMMERS, Justice: Compensation The Workers’ Act of Okla- requires reports physicians homa that used as evidence be made accordance with the latest Guides to the Evaluation of Impairment Permanent issued American Medical Association.1 In this employer’s examining case the doctor de- parted expla- from those nation that he did so because the claimant cooperate fully testing did not pro- judge cess. The trial denied benefits based report. Appeals The Court of versed, holding that the doctor’s reasons departing afforded an insufficient basis for Having granted from the Guides. certiora- ri, we now vacate the Court of opinion and remand to the Workers’ Com- pensation proceedings. Court for further alleged pulmonary Petitioner Branstetter injury due to her work at the manufactur- ing plant respondent Pump. TRW/Reda At trial TRW admitted that Branstetter there, employed was but denied that she injury, injured, had or if she suffered was disagreed that the arose out of her employment TRW. Branstetter testified that her duties at working plant with chemicals included her to be unable to whose fumes caused breathe. that she had never She stated 3(11). 1. 85 pri- Perlinger under the any respiratory Rog- trouble v. J. C. or had
smoked (Okla.1988), also in- ers employment there. She Constr. or to her C, stated the Workers’ di- report of Dr. which troduced the judgment in respiratory impair- peti- rected to enter favor of that she suffered *3 lungs. In his damage previously granted to the tioner. We ment and certiorari impair- opinion, partial permanent hereby she had and vacate the of the Court thirty-five body as a whole of Appeals. ment to the (35%).
percent
apply
We must
the laws that were
employer
physician’s
The
introduced a
injury.
in effect at the time of Branstetter’s
F,
in
report from Dr. which stated that
his
Wilson,
Way
Freight
Lee
Motor
v.
opinion Branstetter was not disabled. The
A workers' com
pulmonary
testing performed
function
un-
pensation
by
claim
in
is ruled
the “law
was,
judgment,
der Dr. F’s direction
in his
existence at the time of the
and not
computer-generated
The
inconclusive.
Id.,
by
citing
laws enacted thereafter.”
port of the FEV-1 test
indicated severe
Bird,
Caswell v.
160 Okl.
defect,
lung
obstructive
but contained a
(1933). The last date of Branstetter’s em
S,
by
pulmonary
handwritten note
Dr.
ployment with TRW was November
tests,
specialist
interpreted
who
that
alleges
ongoing inju
1985. Because she
suggests
suboptimal
data
“Inconsistent
fumes,
ry
exposure
due to
to harmful
we
performance.”
lengthy report
Dr.
con-
F’s
controlling,
shall consider that date to
as
be
cluded as follows:
possible expo
of her last
date
lung
"I can find no evidence of
disease
sure.
on this woman at this time.
It is noted
O.S.Supp.1985,
Title 85
became
x-ray
that her chest
is normal as it has
1, 1985,
is thus the
effective November
and
past.
pulmonary
been in the
Her
func-
applicable
law
to this case:
tion studies cannot be evaluated as this
cooperate fully
woman did not
with this
according
test
and
test and
results
only
any examining physician shall
evalu-
according
interpreta-
Dr.
written
[S’s]
ate
in accordance with the
tion,
trying
this woman was not
on this
Per-
latest “Guides to the Evaluation of
test
These
unknown reasons....
adopted
and
Impairment”
manent
test results are not reliable and cannot
Associa-
lished
the American Medical
patient.
be used in evaluation of this
examining physician
tion.
The
except as
guides
not deviate
from
in the
may
be
report
from the AMA
This
is
variance
adopted guides
officially
These
Guides,
cooperate
as this woman did not
testimony
the exclusive basis for
be
pulmonary
with the
functions studies
regard
perma-
conclusions with
applied
cannot
therefore
added)
(emphasis
impairment....
nent
particular
this
test.”
in effect at the time was
Also
Court,
Compensation
Compensation
Court found
Rules of the Workers’
employer,
and Branstetter
favor
which said:
appealed.
reversed
deviates
.... Whenever
the order of the Workers’
“Guides”,
the basis
Court, holding
report
that Dr. F’s
was not
together deviation shall be stated
competent
it deviated from the
because
(empha-
explanation_
medical
full
Guides,
subjective
A.M.A.
that the
as-
added)
sis
sessment of the doctor that she “was not
argues
giving
Employer
that
trying
was an insufficient rea-
on the test”
Thus,
deviating from
explanation for
deviating
his medical
son for
Guides.
20(i).
complied
trying.
F
with Rule
belief that
the claimant wasn’t
Dr.
the Guides
again
follow-up
argues
under
Here
he failed to
Section
Branstetter
capacity
V02 estimated exercise
occur
test re-
the Statutes deviation
quired
the Guides when the “individual
To the
allowed
the Guides.
specifically
performed maximally
correctly
not
conflict,
has
that the two
answer
extent
York,
spirometry....”
As in
we
contravene a
simple; a court rule cannot
Employer’s
must here also find that the
Ogle, 517
Ogle
statute.
constitutional
report
is insufficient under the
(Okla.1973). The statute allows
P.2d 797
support
A.M.A.
Guides
lower court’s
only may
deviation from
Guides
denial of benefits.
expressly provided for in the
*4
that would allow
does conflict with the rule
Appeals
The
of the Court of
upon
explanation. The stat
deviation
mere
case, having
prior
vacated. The
been tried
prevail.
County
ute must
Oklahoma
Refinery,
to our
in
v.
Gaines
Sun
(Okla.
Hunter,
York is provisions case. The court holds that again disregarded 3(11)1 Here in O.S.Supp.1985 doctor to as —referred spirometry upon consistent tests based a “constitutional statute” —control over pertinent 1. The terms of 85 'Guides to the Evaluation of Permanent Im- 3(11), applies pairment’ adopted published by statute’s version which the Amer- case, provided: this examining The ican Medical Association. " * * * physician deviate shall not said any examining physician only shall evaluate except may specifically provided for impairment in accordance with the latest contrary accept sedes court rule —I this (b) Rules, force,2 exposition a correct longer in norm as of the law which is no only in the abstract. terms of claim’s denial must be vacated because at the time critical force to this cause employer’s physician, who had found provided that respiratory the claimant to be free from addi- impairment, failed to administer any examining physician “... prescribed by the tional test Guides3 evaluate accordance with uncooperative patients.4 accede adopted the latest [Guides] today’s pronouncement latter lished the American Medical Associa- a) following employer’s reasons: examining tion. legal, offered no physician-expert guides except not deviate any other deviating basis for scientific * * * ” Guides, b) depar- from the the unwarranted added.)6 saps Guide-prescribed ture from standards quoted version of bound the employer’s report probative of its value physician to the AMA’s standards unless a c) wisely the court remands the case specific exception was found in the Guides. *5 for reexamination of all issues.5 20(i),7 operative terms of Rule on the allowed deviations as hand, long As for the first of the court’s hold- other as ing super- physician gave explana- a constitutional statute the a “full medical —that Rules, 4, guides. officially adopted guides O.S.Supp.1990, the These Ch. sation 85 testimony be the exclusive App., provide: shall basis for whose terms regard permanent impair- 33, conclusions with "Except provided as in Rules 32 and all paragraph exception ment with the of 3 of reports rating written medical the extent of title, relating Section 22 of this to scheduled permanent impairment prepared shall be loss_” injury (Emphasis member ed.) or add- compliance appropriate substantial in Rule edition the AMAGuides as set forth of version, 3(11), Its current 85 added.) (Emphasis 21.” provides: " * * * 3. The term "Guides” refers to the American any examining physician evaluate Medical Association’s "Guides to the Evaluation impairment in accordance with the latest (1984) Impairment” second of Permanent whose the lication American Medical Association’s of applies to this claim. edition the ‘Guides to Evaluation Permanent Im- of pairment' at the the incident time effect Burgess-Norton Manufacturing 4. See York v. However, compensation sought. which is for Okl., 697, (1990), Company, 701 where 803 guides revisions to made the American denial because the the court vacated claim's published Medical Association which are after 1, employer's physician to administer an failed January operative 1989 shall be one hun- (120) twenty day Guide-prescribed pa- days test suited for dred after the last additional publication. examining ventilatory during the month of func- tients whose efforts physician guides shall not based on inadequate. See also York v. tion test were follow origin, race or ethnic but otherwise shall not Burgess-Norton Manufacturing Company, supra may except deviate be (Opala, concurring). at 703-704 These officially adopted guides exclusive court has in numerous other cases 5. This testimony basis with re- conclusions reexamination when the manded a claim for gard permanent with the ex- flawed, yet judge’s trial decision rested on a ception title, paragraph 3 of Section 22 of this See, report. e.g., Wheat v. Heri- curable medical relating to scheduled member Okl., 74, Manor, (1989); tage Bill 784 P.2d 79 ” added.) (Emphasis loss Okl., 1063, Gillum, Hodges Co. v. 774 P.2d Truck pertinent terms Rule Workers’ 2.The (1989). Rules, O.S.1981, Compensation Court Ch. App., provided: 3(11) superseded 6. This version of " * * * Whenever the deviates supra note 1. amendment. See ‘Guides’,the deviation shall be basis together explana- stated full 20(i) supra pertinent Rule see 7. For the terms of ” added.) tion note 2. longer appears rule no exists. It to have This 20(D), Compen- replaced been Rule Workers’ here real issue to be decided Gaines v. Sun Re- dissenting opinions m tion.” 3(11) must in all cases override fining Marketing, whether 790 P.2d 20(i). Burgess-Norton and York v. (Okla.1990), Mfg., 803 P.2d I give qualified here a far more I would would vacate the of the Court of in this by holding that affirmative answer and sustain Order case yield the court rule will have contrary text of the statute whose consti- Court. validity challenged. has not been tutional
A is free from fundamental- statute contrary infirmity prevails
law over upon
content a rule is not rested which promulgating court’s constitutional au-
thority.8 suggestion There is no in this delegata
case that under the doctrine of
potestas potest delegari9 non may present
in its or former version constitute delegation legis- an unlawful state’s BROADWATER, Appellee, Laura (the power private entity lative to a AMA),10 binding or that the AMA text’s challenge force vulnerable Sheryl COURTNEY, Appellant. impermissible legislative predetermination adjudicatory of an scientific fact.11 No. 70152. narrowly would hence conclude that § must here contrary control over the con- *6 Supreme Court of Oklahoma. 20(i) tent of Rule because the statute’s 23, April 1991. validity question. has not been drawn
SIMMS, Justice, dissenting:
respectfully
dissent
majority’s
from the
expressed
my
the reasons
Ass’n, Okl.,
Tweedy
authority
8. See
promulgate
v. Oklahoma Bar
624
tive
rules for the law’s
1049,
(1981);
City
P.2d
1052-1053
Winters v.
nondelegable.
execution. The former is
It in-
724,
(1987)
City,
(Opala,
Oklahoma
740 P.2d
730
be,
cludes discretion in what the law shall
while
J., concurring
dissenting
part);
in
Perceful,
latter,
delegable, may only
which is
be exer-
State ex rel. Oklahoma Bar Ass’n v.
carry
policy
apply
cised to
out the law’s
and to
Okl.,
627,
(1990)
V.C.J.,
(Opala,
796 P.2d
631
to various conditions.
dissenting).
generally,
Delegation
legisla-
See also
Annot.:
Delegata potestas
delegari
potest
9.
non
means
power
nongovernmental agencies
tive
as re-
delegated power
redelegated.
that a
cannot
hours,
188;
gards prices, wages, and
3 A.L.R.2d
(6th
Dictionary
ed.1990).
Black’s Law
at 426
Validity
regulations
plumbers
Annot.:
as to
See
State ex
also
rel. Oklahoma Bar Ass’n v.
plumbing,