*1 Petitioner, DAVIS, B. Ronnie risk, GOODRICH, own
B.F.
the Workers’
Court, Respondents.
No. 72080.
Supreme of Oklahoma. 4, 1992.
Feb.
As Corrected Feb.
day smoking and had been for about 15 years at that There was no rate.” limit to walk. distance he could He had not any breathing missed work because of problems. taking any He was not medi- cation, prescription either or over-the-coun- ter, Further, breathing problems. for he breathing for prob- had never seen a doctor he productive lems. He stated that had a cough “very but was minimal.” trial, At the both the claimant and the employer submitted written medical re- ports. Objections competency probative value made to report. were each judge objection did not take under advisement that but stated she would con- arguments sider the claimant’s medi- report. objections by cal on the She ruled admitting reports both without reservation and did not the admission. withdraw Nei- party ther the trial addressed tribu- ruling nal’s on the claimant's or the competency probative value of that re- port appeal. in this that Because issue was appealed, judge’s ruling the trial Bell, Norman, final and is petitioner. Richard not an issue before this Court. A. Wallace, Wilson, Owens, W. Neil Lan- expert, Miller, The claimant’s medical Dr. ders, Morrow, Gee, Wilson, Watson & having impair- rated the claimant as 20% James, Miami, respondent, B.F. Good- lungs impairment ment to his and 10% rich Co. upper system, his respiratory resulting in impairment body. employ- to the 30% HODGES, Justice. Vice Chief expert, Mahaffey, er’s medical Dr. rated the claimant’s The issue on is whether there zero. any competent Dr. reported Miller that claimant had Compensation Court’s day smoked cigarettes about 20 for 20 not sustain or claimant did suffer years. cigarette smoking He testified that arising out injury of and in could cough cause a and shortness of employment. the course of his We find breath. Dr. Miller testified that restric- that the Workers’ Court’s lung tive vital capacity disease the forced supported by competent order is evidence. (FVC) should be and that in decreased ob- (claimant) Ronnie Davis filed a workers’ lung disease, expirato- structive the forced alleging injury claim to his (FEVi) ry volume in the first second should lungs upper system caused be decreased. He testified the claim- by exposure to continuous hazardous chem- “very ant’s FVC test was close to normal” icals, talc, fumes, including industrial (mild but that the into fell class two FEVi employed by (employ- while B.F. Goodrich impairment), indicating lung obstructive er). began working Claimant for the em- “[cjigarette disease. Dr. Miller stated ployer on 1971 and March worked there smoking generally most causes obstruc- years. for fifteen lung exposure tive” disease and that to talc following. probably claimant testified would cause restrictive and both pack cigarettes lung he “a smoked obstructive disease. comply permanent any of ates did not examine
Dr. Miller
argues
His re-
1984 Guide.3 The claimant
prior medical
records.
claimant’s
sputum
cough
requires
results of
not indicate
the 1984 Guide
port did
any wheezing as
in the medical
production
included
of Per-
Evaluation
rating
A.M.A. Guide
of zero
report before
*3
Guide)1 if
(1984
the
Impairment
manent
given
employer’s
and the
medical
can be
Therefore,
it must
present.
are
symptoms
of a
expert failed
include the results
complain
that claimant did
be assumed
rating
report
gave
which
of
test
the
Dr. Mil-
though
symptoms. Even
of these
impairment.
zero
upper res-
report did
indicate
ler’s
Guide,
heading
under the
The
gave the
problems,
he
piratory
system
requires
personal
history,
and medical
of
that
impairment
rating to
claimant
10%
severity of
physician
the
estimate the
that
body.
his
part of
requires
The 1984
dyspnea.
Guide also
Dr. Ma-
expert,
The
medical
spu
physician
cough
the
include
haffey,
rated
claimant’s
wheezing,
production,
and environmen
tum
Mahaffey
claimant’s
Dr.
noted the
zero.
exposure,
chronological
tobacco
tal
use
He
that at no
smoking habit.
observed
Likewise,
occupational
history.
data
the
claimant
during
the test
did the
time
requires
physician
the 1984 Guide
the
Dr.
appear
of breath.
short
wheeze
a number of other data such as
record
spirometry
Mahaffey
administered
the
rates,
pressure,
heart and
blood
results
tests were
of those
tests.
breathing,
x-rays results.
patients’
the
Mahaffey’s
range.
the normal
Dr.
within
expert
medical
should also evaluate the
pulmonary
compared the
report
claimant’s
However,
degree
degree
dyspnea.
of
the
through Au-
functions
from October 1979
may not
criteria for
dyspnea
be the sole
pul-
1985 with the claimant’s current
gust
impairment.4
evaluation
monary
no substantial
functions and found
change.
testing spe
Step
physiologic
I of the
requires
expiratory
cifically
a forced
medi-
respondent
At trial the
submitted
test,
maneuver,
simple spirometry
include a VO2
evaluation which did not
cal
perma
in all
“performed
examinations
objected
or a
test.
claimant
Dco
is used to
impairment.”5
This test
nent
compe-
probative value and to its
report’s
capacity of the
ventilatory
measure
tence.
parts
this
lungs.
component
The three
The trial tribunal
found that the
(1)
capacity
the forced vital
test
are:
injury aris-
had not suffered
(FVC),
expiratory
forced
volume
employ-
his
ing
of and
course of
out
(FEVi),
the ratio
first second
Appeals
found the
The Court of
ment.
expressed as a
measurements
the first
two
report
competent
medical
ratio).
(FEVi/FVC
This ma
percentage
tribunal.
sustained
described
should be
neuver
the decision
uphold
This Court will
(American
Society)
1978 ATS
Thoracic
if
Compensation Court
of the Workers’
Project. To
Epidemiology Standardization
any competent evidence to
there is
if the test
results
within
determine
compe
Our
that decision.2
review
limits,
predi
locates a
normal
limited to
report
the medical
tence of
value).
(predicted
from a
cated value
chart
non-compliance
1984 Guide.
facial
values,
range
is a
normal
Because there
Interval”
Act re
the value of
“95% Confidence
The Workers’
predicated
from the
evalu- must be subtracted
a medical
quires that
3(11)
Association,
(Supp.1986).
TO
tit.
GUIDE
3. Okla.Stat.
American Medical
PERMANENT IMPAIR-
THE EVALUATION OF
1984).
(2d ed.
MENT
Guide,
supra
at 85.
4. Hosp.,
7. Orrell 854; Guide, supra 13. Id. at note at Figure 2. Guide, supra 8. note at 97. Figure 2. 14. Id. at Guide, Figure supra at note Guide, Figure supra 15. 1984 note at 98 Guide, test, single capacity Under the 10. Id. at 97. In the estimated exercise “[t]he person placed for the breath should be used evaluation on either a treadmill or a Dco impairment." ergometer. V02, oxygen cycle American Medical all levels of con- Association, minute, sumption per TO THE EVALUATIONOF GUIDE is not measured direct- (3rd 1988) through relationship ly ed. PERMANENTIMPAIRMENT but is determined its Guide). (1988 power output, which is measured in kilo- (KPM/min). power pond meters/min provides: 11. The 1988 Guide “The measures grade speed Dco output is related to the the amount of CO which diffuses across the treadmill. specified alveolar-capillary membrane in a Id at 97. Guide, supra amount of time.” 1984 16. Id. at 97. physiologic schema for The test correctly maximally or performed clearly indicates that when the testing tests.17 Dco FEVi, of the two are and the ratio the FVC test is The estimated V02 (the predicated limits the normal within tests have been spirometry and if the interval) confidence value minus 95% are not within results of both given and the respiratory complaints are patient’s states that ranges, the claimant specified measurements, those consistent with specific job because perform a he cannot required, physician is not under the 1984 breathlessness, “has not or the claimant Guide, test or a to administer a V02 correctly in the maximally or earlier, if the results of the test. As stated The determi or the tests.” FEVi, FVC, and the ratio of the two per claimant has of whether the nation range and consistent within the normal correctly is within the maximally or formed complaints, then the with the claimant’s the doctor.18 Other discretion of zero physician give can a classification of req wise, is not estimated unnecessary V02 impairment, and it would be physician If has doubts about of the other two tests. administer either uired.19 test, accuracy of the estimated require a simply does not V02 The 1984 Guide (mea capacity the measured exercise then give or the always the Dco V02 *5 test) should be administered. sured giving impair 1 zero test before Class V02 circumstances, the under the above rating. Even ment on a performed not test should V02 four recent case There have been who, opinion of the exam “in the report given a zero medical which the contraindica ining physician, has medical considering rating without to such test.”20 tions They are Branstetter v. TRW/Reda test. V02 Burgess-Norton p,24 York v. Pum “gold standard” Spirometry is Co.,25 Refinery and Gaines v. Sun Mfr. determining lung disease be- obstructive v. B.F. Goodr Marketing,26 and Orrell nature and extent of an it detects the cause ich.27 also used for Spirometry is obstruction.21 lung Orrell, disease be- determining restrictive decided first. was Orrell “lung volume or expert gave it detects whether the claim- cause per gas rating per- moved volume of that can be ant a zero gener- is the extent of test forming is reduced and test. breath” Dco required as ally given measure- reduction. The FVC before FEVi V02 held that was ments, are the above. Orrell and the ratio of the two discussed give the before lung always necessary to disfunc- not most useful indications Dco given. rating could be a zero other hand the tion.22 On the Dco test recognized that widely.23 This may vary test measurements Dco V02 Guide, Figure supra added.) note at (Emphasis The 1988 Guide 17. Id. states: Guide, supra note at 97. 20. 1984 capacity Testing exercise should to measure individual’s done when an not be Attorney’s Medicine Textbook 4A impair- severe indicate measurements Dco 1989). (R. Gray 3rd ed. 204A.31 ¶ testing capacity exercise ment. Measured com- the individual’s be done when 22. Id. at 204.63. ¶ spiro- dyspnea plaint is more severe than indicate; indi- metry OR would Guide, supra note 97-98. 23. 1984 physically un- he or she is vidual states that specific job demands of a able to meet the (Okla.1991). P.2d 1305 24. 809 breathlessness; (3)OR the individ- because correctly maximally not ual has (Okla.1990). P.2d 697 25. 803 spirometry or tests. Guide, (emphasis supra at 113-14 (Okla.1990). P.2d 1073 26. 790 added). P.2d 848 27. 787 See Id. at 854. admittedly perform if the forced did given maximally must be results of the on (the simple spirome- expiratory York, maneuver test. Consistent try test) range and were the normal within this Court held that the test had to be V02 complaints the claimant’s were inconsistent performed. York, Neither Branstetter nor with those results. Gaines, required like test be V02 given as to whether com- decision such under all circumstances before a
plaints actually or of having inconsistent claimant could be rated as zero im- greater severity objective than the more pairment. results, physiologic so that DCO test require None of the would factors which performed, the 1984 should be under examining physician perform the Dco Guides an area of medical are within present test or the test is in this case V02 expertise generally subject are not they were in York and Branstetter. guessing to second a court. For all of competent The medical perceive error above reasons we no supporting the trial tribunal’s failure perform [the doctor’s] job-related, no injury. there was DCO test.28 The trial tribunal’s order is sustained. Orrell, this After Court decided Gaines CERTIORARI PREVIOUSLY GRANT- held that test had to be V02 ED; OF APPEALS’ COURT OPINION given expert before the medical rate could VACATED; ORDER OF WORKERS’ impairment. claimant at zero As dis- COMPENSATION COURT SUSTAINED. earlier, cussed the 1984 Guide does always require given that a test be V02 OPALA, C.J., LAVENDER, SIMMS, rating impairment.
before of zero To the HARGRAVE, JJ., DOOLIN and extent concur. that Gaines inconsistent with this rejected. holding, it is *6 SUMMERS, J., concurs in result. Gaines, After York In was decided. York, admittedly per- the claimant not did KAUGER, JJ., ALMA WILSON and spirome- form or maximally correctly in the dissent. try employer’s expert test. The medical OPALA, Justice, concurring. Chief did employ not the test or test. the V02 expert’s court held that the failure Today the court that in a holds denied impermissible conduct further tests was an respirato- claim for deviation from the 1984 Guide. The 1984 ry injury which the Guides’1 ver- requires per- Guide test V02 applies, expert’s sion the medical evalua- when, alia, formed “the individual inter upon tion impairment” rating which a “zero performed has maximally correctly not is based need not include “carbon the mo- the or the tests.” How- (or Dco). diffusing capacity” noxide ever, Orrell, under whether the individual today’s I embrace pronouncement While performed maximally correctly subjec- is interpretation applicable the correct of and, thus, expert’s tive the medical within requirements,2 Guides’ I concur sustain- discretion. ing claim’s the the denial for reasons ex- Branstetter, pressed dissenting
The last four cases in Part I my opinion is York, which like involved a who in Refinery Gaines v. Sun and Market- ed. 1984) employer's Id. at 854. 97. The medical appears to contain no indication this test 1. The term refers “Guides” to the American necessary. was had determined Medical Association’s "Guides to the Evaluation that the claimant’s test results are Impairment," of Permanent whose edi- second complaints consistent absence re (or version) applies tion to this claim. garding shortness of normal breath with activi "within an ties. This determination lies area of single "The breath should be expertise... generally subject patient not complaints when a greater severity spiro- guessing by are of Orrell than the observed second court.” v. B.F. Goodrich, Okl., (2d metry results would indicate.” AMAGuides by I the stated am was neither advanced briefs nor ing.3 the reasons to be For goes beyond in the suggests preserved record the join in the dissent which unable to Reynolds Special limits of the phy Indemni legislation requiring that we invalidate exception. Reynolds ty Fund7 teaches of the AMA Guides. sicians’ use public-law controversy ag if in a the party’s wrong grieved brief advances I reversal, reviewing court reason for Gaines, case, as in this the claimant grant free to corrective relief from that the zero solely on the contention relied theory on an urged applicable error cho impairment rating given by the sponte i.e., theory that sup sua sen — unexplained, and from an doctor stems ports assigned error but was neither from the impermissible, deviation hence below nor on and is advanced dis- In neither did the claimant Guides. case by aggriev issue positive raised judge’s finding that no question the trial inapposite party. Reynolds here. ed injury had “This job-related occurred. The reversible error of a constitutional di a discussion a claimed devi- alone makes by sponte isolated sua mension the dissent purely the Guides academic ation from (a) assigned argued by neither scope of issues tendered dehors below, aggrieved party, either here or nor Indeed, per- “an assessment of review.”4 (b) predicate clearly rest on a laid by does it disability the exist- presupposes manent Reynolds trial tribunal’s record.8 Our on-the-job injury.”5 ence of some disposi- sponte choose sua freedom public-law wrong theory tive when one II to identify is advanced does not extend my by I stand in Branstette While views urged ing by a constitutional not flaw9 r,6 expressed about the below, where doubt party here or aggrieved either open- constitutionality legislature’s supplying a deficiency nor to delegation private entity to a jurisdictional ended record.10 Unlike tribunal’s —the infirmities, stan presence Medical Association—of its we American into whose urged dards-setting responsibility they for evaluation even when examine parties,11 physical impairment, I can constitutional compensable upon us appellate today join calling for invali flaws not be corrected dissent rule sponte sponte. prudential process the AMA Guides. A sua sua dation of *7 and question necessity, adhered to all state feder review of a constitutional 1073, Okl., (1990) authority (Opala, permitting review in a Extant case 790 P.2d 1082-1083 9. V.C.J., dissenting). controversy public-law of a constitutional issue sup lends no which was not dealt with below Marketing, supra Refinery v. Sun Gaines port dissenting view. The constitutional V.C.J., (Opala, dissenting). at 1083 note 3 cases, urged though not reached in those flaw tribunal, clearly assigned as Refinery Marketing, supra error 5. Gaines v. Sun V.C.J., dissenting). (Opala, e.g. appellate Simons v. note 3 at 1083 court. See before Okl., Storage, 344 P.2d Brashears Transfer Okl., Pump, P.2d 6. Branstetter v. 809 TRW/Reda 1107, (1959); Bank v. Southland 1113 First Nat'l C.J., 1305, (1991) (Opala, concurring in 1308 9, Co., (1941), 1087 189 Okl. 112 P.2d Prod result). 11, State, Magnolia citing Pet. 175 Okl. 52 Co. v. (1935), Refining Indemnity Co. Reynolds, Okl. Oil & v. Special Fund v. 199 P.2d 81 Shaffer 841, (1948). Treasurer, 6, (1935). Reynolds 842 See v. 76 County 188 P.2d P.2d 175 Okl. 52 Fund, Okl., 1265, 1270 Special Indem. 725 P.2d (1986), application Reynolds public- Okl., Hosp. So. v. 10. See Memorial Muncrief exception. issue law Okl., (1988); Chamberlin v. 767 P.2d 402 Okl., (1986). Chamberlin, 723-724 720 P.2d Okl., Brooks, Drilling Company 451 v. Lewis (1969); Tank Truck Ser P.2d 960 Bostick inquire sponte into sua its 11. This court Okl., Nix, (1988); see v. 764 P.2d 1349 vice Co., Inc., Okl., jurisdiction. Cate v. Archon Oil Monday, Okl.App., P.2d Food Co. v. Johnston Hill, Okl., (1985); AMOCO, (1985); Pointer Okl.App., Edwards v. (1975). (1989). 536 P.2d courts, al commands that constitutional is have to showing negative be based on a sues not be resolved in advance of strict all of the three. Hence we from results necessity.12 nega concluded that the Guides finding tive of zero V02
SUMMARY
impairment.
sum, though
by my
I stand
views
may
practical
Our conclusion
have led to
Branstetter,13
today’s
I concur in
decision
difficulties
denying
to sustain the order
this claim
workplace. Apparently many physicians’
medical evidence
“[b]ecause
spirometry
offices where
(ventilatory func-
supports
finding
the trial tribunal’s
tion) testing
equipped
is done are not
injuries
the claimant’s
do not result from
Also,
administer the
it is clear that
VO2.
working
harm
in and
incurred
about the
not,
may
some claimants
for other health
environment.”14
reasons,
safely placed
on á treadmill or
cycle ergometer, the device used in measur-
SUMMERS,Justice, concurring in result.
ing
Guides,
event,
any
P. 97. In
VO2.
majority
may
states that a
majority
now concludes our earlier
patient
impaired
rate a
as zero
reading of
incorrectly
the Guides
over-
(1)
testing
FVC, FEVi,
further
when
Respondent’s
loaded the
physician,
normal, (2)
pa
are all
FEVi/FVC
prepared
accept
am
repudia-
the Court’s
tient has
appro
the tests in the
tion of that facet of
opinion.
the Gaines
manner,
priate
patient’s complaint’s
results,
are consistent
such
principal objection
Claimant’s
here was
patient has not stated that he or
Respondent’s
she is
doctor failed to adminis-
physically
unable meet the demands of a
ter the
test.1 The Guides
describe
Deo
specific job
breathlessness,
because of
requirement
cit
administering
thus:
Dco
ing
1, 97,
at 86
Guides
Table
and 98.
single
“The
breath
per-
should be
departure
This is a
from one of our
patient
earlier
formed
when a
com-
conclusions
Refinery,
plaints
Gaines Sun
greater severity
that are of a
than
(Okl.1990).
P.2d 1073
Therein we noted
spirometry
the observed
results would indi-
(Table
86)
that the Guides
appeared
at P.
explained
cate.” We have
that whether
finding
to allow a
particular complaints
based on
do not correlate with
positive
any
results from
one of
the three
require
results so as to
appearing
standards
therein: Dyspnea, or
test calls for the exercise of medical
Ventilatory
(FVC, FEV,
Tests of
Function
discretion that
guess.
we will not second
FEVi/FVC)
finding
or the
Max. If
Goodrich,
Orrell v. B.F.
597 private parties,1 I from spirit of the duties to dissent keeping with and notions laws workers’ majority’s opinion gives efficacy should be afford- Ronnie Davis fairness.4 American Medical Association’s claim support his opportunity another ed to the Evaluation of Permanent “Guides Accordingly, I compensation. workers’ (AMA Guides). Impairment” dissent. respectfully required by 12 O.S.1981 Court KAUGER, Justice, dissenting: judicial the consti- 2201 to take notice of § all tution.2 Courts to consider Legislature is constitutional- Because constitutional, legislative applicable statutory, and de- precluded delegating from its ly Honor, always provided he is aware of Your the Doctor states we’ve them. He MR. DOTY: [report] according produce print- to the American that his did his state the fact machine does Society’s; page note on Thoracic also I would out. comply No, only reason his did not machine MR. DOTY: I’m not. I have never cross the, Society’s Thoracic Mahaffey. with American Dr. [sic] examdined spirometer have a is that his did not Okay, somebody your standards of- MR. GEE: over just digital. printout; it was has. fice digital acceptable, Is THE COURT: not the go THE COURT: I’ll ahead and admit it. admitted.) Mr. Gee? (Repondent’s Exhibit 1 standards, admits GEE: The ATS and he else, MR. Anything gentlemen? Is THE COURT: for in the ATS standards which are called that this case submitted? Guidelines, print- require producing a the AMA MR. GEE: Case submitted as far as we are out. concerned, Your Honor. I’ll and take it THE COURT: read all that you, you may COURT: be ex- THE Thank else, Anything Mr. Gee? consideration. under cused. objections? your all Are those (End Proceedings.) Yes, sorry. I’m MR. GEE: compen- The intended results of our workers’ (Claimant’s admitted.) Exhibit No. 1 provide laws are to a "workable means of sation securing compensation else, Doty? Anything COURT: Mr. THE injured employees DOTY: We MR. rest. industry of the wear and to have bear its burden right, All Mr. Gee. THE COURT: power.” man and tear on the human machine or please: If the We would ask MR. GEE: Commis- & McDannald v. State Industrial Smith Mahaffey’s mark the Court Dr. sion, (1928). [Em- 133 Okl. P. 25th, report of November as an exhibit and results, phasis accomplish To these added.] into be introduced evidence. "compensation be con- laws should Respondent’s 1 is a medical THE COURT: liberally, fairly, of the indeed in favor strued 25th, Dr. dated 1987 from November the workman_” injured v. State Indus- Stasmos Mahaffey; any objections? Commission, P. 762 80 Okl. Yes, Honor, object to the MR. DOTY: Your I [Emphasis added.] incompetent probative report that it's and lacks object comply to it with value. I that it does not Homsey, Corp. 1. American Home Prod. speculative. Guides and it’s the AMA State, (Okla.1961); Potter v. P.2d comply to COURT: does it not THE Where (Okla.Ct.Crim.App.1973). The the AMA Guides? Const, provides: § art. Okla. test; give DOTY: He did not a D.C.O. MR. government powers of the State of “The brought up Gee’s ATS standards since Mr. separate shall be into three Oklahoma divided give any spirome- note that the Doctor doesn’t Executive, Legislative, departments: The printout be- in this evaluation and I don’t tric Judicial; except provided Con- in this complied page his with 160 in lieve he Table Executive, stitution, Legislative, and Judi- airways. upper But evaluation sepa- government departments shall be cial probative would be a value in that. distinct, shall exercise and neither Okay. response, rate you THE COURT: Do have properly belonging powers to either response? a brief Yes, ma’am, others.” very Dr. Ma- MR. GEE: brief. Const, pertinent provides art. 1§ The Okla. part: printout haffey’s produce does and it machine compliance He ATS standards. is in authority Legislative the State shall “The he it. If he it attached all did not attach wanted Legislature, consisting of a Senate in a vested have to have done was ask us and we could had Representatives...” House of and a provided it to him. Why you attach THE COURT: didn’t pertinent provides in Title 12 O.S.1981 2201 though? part: whenever it MR. GEE: It wasn’t sent to me by the notice be taken exam- "A. Judicial shall came to me and whenever he has cross law, Mahaffey constitutions them and court of the common ined Dr. he’s asked for *11 598 repeated of presentation applica to a cause.3 applicable
cisional law
Since
bility
in
of the AMA
workers’
Guides
com
in 1941 in
this Court’s decision
First Nat’l
pensation
employ
causes
the fact that
Co.,
9,
Bank v.
Prod.
189 Okl.
Southland
rely upon
employees
ers as well as
(1941),
112
we
P.2d
1098-99
have
compensation system
protec
for
recognized
importance
considering
of
on-the-job
tion for
injuries warrants consid
for the first
question
constitutional
time on
question
eration of
the constitutional
public
if the
welfare and interest so
presented. Additionally, at least two re
require:
opinions
cent
indicate
issue is a
public
questions
policy
“Thus where
of
recurring
v.
one — Dosh
TRW/REDA
widespread public
or
interest are in-
(Okla.1991)
Pump, 810
1284
P.2d
appellate
may
volved an
court
review a
Pump,
Branstetter
v. TRW/REDA
809
theory
presented
cause on a
(Concurring in
opin
result
Magnolia
tribunal.
Pet.
Co.
by Opala, C.J.).
ion
State,
81;
52 P.2d
Okl.
Shaffer
THE AUTHORITY
DELEGATION OF
TO
County
Oil &
Co. v.
Treasurer
Ref.
of DETERMINE PERMANENT IMPAIR-
Okl.
County,
Creek
must be power department. one
tralization Legis- long recognized that the
It been may delegate authority primarily not
lature Delegation legislative of the character.8 Petitioner, BOND, Albert E. to is for- legislative power private entities v. bidden.9 SUPPLY, St. Paul In- FOX BUILDING 3(11) private purely vests in a Section Co., surance Oklahoma Work- organization, the American Medical Associ- Court, Respondents. Compensation ers’ ation, authority set stan- the unbridled to permanent dards for No. 72400. right to com- govern employee’s collect Supreme Court of Oklahoma. del- pensation on-the-job injuries. for guides, restric- egation made 11, Feb. tions or standards. It has resulted requiring unnecessary expen- of often but of the
sive tests which increase cost
system, cost of
insurance, business, doing the cost of products
the cost of to the ultimate con- Legislature may delegate
sumers. legislative power privately con- organization.10
trolled national Section
3(11) it vests is unconstitutional because note, Walker, title, supra; relating Refining paragraph v. see this 3 of Section 22 of this Co. 934, loss; State, supra. The injury or im- v. see note 1 at member Potter scheduled provides strength, limits pairment, including pain loss Act no or profession may injuries parameters respect to the medical awarded with to those be promulgation of body specifically direction in the of the covered inclusion or areas by guides_” AMA Guides. said 3(11) has been revised since the instant Section However, controlling Corp. Homsey, cause ute, filed. stat- see Prod. v. 9. American Home Annot., 3(11) 1; State, 1, O.S.Supp.1986 requires supra; also eval- see § note "Delegation Potter Legislative Nongovern Medi- accordance with the American uations in Power to Prices, Agencies Regards Wages, cal "Guides to the Evaluation Association mental Hours,” 188, (1949). Impairment”. Homsey, In Permanent A.L.R.2d delegation of as an unlawful we struck down Const, supra. Act, see note § Okla. art. legislative power the Oklahoma Fair Trade seq., delegated 41 et because 78 O.S.1951 persons right prescribe Walker, private a rule Sterling Refining 165 Okl. Co. v. Annot., governing which bound (1933); conduct the future Lim- "Permissible Potter, nonconsenting Power,” parties. the Oklahoma Delegation Legislative its of 79 L.Ed. Legis Appeals of Criminal found Only those administrative right private entity delegation lature’s implementation of incidental to the functions pictures motion could to determine what legislative other intent be vested in an unconstitution distributed in Oklahoma was accompanied must be bodies. These functions delegation legislative authority. Legisla- al prescribed by the well-defined limits Arnold, Okl. ture. Herrin v. State, 977, 982, supra. (1938); Sterling Potter see note 119 A.L.R.