*1 сollections, receipt of the wa- system property became the ter/sewer city. key city was that the was not if it did not collect revenue from
obligated City of water. Neither is the
its sale City obligated
Midwest unless it collects subsequent
tie-on fee from contractors. financing in- there is no deficit
Because bar, it in the case at does not violate
volved 10. and 27 of Article
§§ opinion Appeals of the Court of RE- The trial court decision is
VACATED. AND REMANDED for further
VERSED merits.
proceedings on the C.J., HODGES,
HARGRAVE, DOOLIN,
LAVENDER, KAUGER and
SUMMERS, JJ., concur.
OPALA, Justice, dissenting: Vice Chief deny certiorari and leave the
“I would Ap- Court of
unpublished
peals undisturbed.”
SIMMS, J., dissents. GAINES, Petitioner,
Donald R. MARKETING, AND REFINERY
SUN Risk Workers’
Own Court, Respondents.
No. 69139. of Oklahoma.
Supreme Court
April May 8 and
As Corrected *3 Bell, Norman, A. petitioner.
Richard for Wiles, Jr., City, W. William Oklahoma respondents.
SUMMERS, Justice: compensation for loss of sought Claimant pulmonary function. Workers’ Com- pensation Court denied benefits but granted Appeals reversed. We Court whether certiorari address issue of Compensation the order the Workers’ by any competent evi- supported Court was find dence. Because we that all reports submitted as evidence failed Guidelines, comply with A.M.A. we reverse proceedings. We and remand for further applied rule further set forth the to be appellate re- hereafter order to obtain our reports, of medical and revise view happen position to what shall earlier as are on reports determined when appeal to be insufficient. Gaines, plaintiff, was em- Donald a
ployed years for four truckdriver Refinery respon- Marketing, Sun pick up and His duties included the dent. delivery Every time Gaines of crude oil. picked up or oil to an outdoor delivered to determine storage tank he tested oil gravity. accomplished He the level tube, rope, a by dropping a attached to task hatch through tank to the bottom of the was top of the tank. This task in the con- thirty forty report cannot be performed approximately lines. Because sidered, urges a weеk between the Workers’ times and took five Gaines sup- each perform Compensation ten minutes to occasion. Court’s order is any competent ported by evidence At the Workers’ must be reversed. suffering from asserted that he was Gaines his injury lungs caused as- Answering allegations, Gaines’ Sun during testing he complied the fumes inhaled report of Dr. C. serts that He from procedures. submitted Sun further with A.M.A. Guidelines. A., fifty had Dr. which stated he suffered A. nor claims of Dr. that neither (50%)disability inju- percent because comply Dr. M. with A.M.A. *4 objected report on ry. Sun to this the basis Sun Specifically, or Rule 20. Guidelines it contained an inaccurate and incom- that not points report that Dr. A’s does out injury history. alleged Sun that this plete performed how were state which tests arise in the course of did not out of or rating computed. was The disability Sun, employment with but instead Gaines’ report based on an inaccurate was also by years heavy twenty-three caused of was history, there is no mention of Gaines’ as employment smoking years and of eleven prior toxic fumes and chemi- contact with laboratory continually he was with a where Dr. employment. As to previous cals his chemicals and fumes. in contact with toxic M., report his indicates that one C., Dr. which report submitted from Sun performed, and no required three tests was by that was not disabled stated Gaines twenty analysis support given any injury, injury that work-related and (20%)disability rating. The percent by years twenty-three caused of smok- was makes mention of habitual no Gaines’ objected probative value ing. Gaines prior employment. smoking or his report, stating that Dr. C. not did of Appeals unpublished in an A.M.A. follow Guidelines. opinion reversed thе order memorandum introduced, as The Court then Court’s Court, holding Compensation the Workers’ M., 1, by report, a third written Dr. Exhibit report from Dr. C. was employer’s that the injury out Guidelines, stated that Gaines’ arose compliance not in with A.M.A. Sun, and employment with that such of his adjudica- considered in the and could not be (20%) twenty percent him dis- injury Thus, left the cause was tion of the case. objected report Sun to this on abled. Compensation the Workers’ remanded to that it contained an inaccurate and Court, basis “proceed accord- with directions taking mat- incomplete history. After ingly.” vacate the of the Court We advisement, under the Workers’ Com- ter Appeals and reverse and remand denying an order pensation Court issued proceedings in accord- cause for further benefits, did not because “claimant sustain herein. ance with the views stated personal injury arising accidental out an employment in the course of claimant’s and I. OF REPORTS ANALYSIS MEDICAL respondent the above named ...”
with
OF DR. C.
REPORT
of the Workers’
order
See
86-1148F,
27,
Court,
Feb.
Court No.
allegation
first turn
Gaines’
We
by
finding
affirmed
the three
This
was
follow
report of Dr. C. failed to
panel.
judge
required by Rule 20.
A.M.A.
Guidelines
eval
requires
Rule 20
a statement that the
appeal, alleging that
then filed an
Gaines
compliance with
report
uation
in substantial
submitted
was
the medical
Sun
If
deviation
A.M.A.
there is a
compliance
A.M.A. Guidelines
Guidelines.
with
not
Guidelines,
explained
O.S.1987,
it must be
there-
Rule
and
and 85
Ch.
O.S.Supp.
report.
by the
his
not be considered as
doctor
fore could
1987, 3(11).
resolve
applied
The test
Specifically,
competent
evidence.
§
compliance is
of substantial
pointed
Dr. C’s
omit-
out that
Gaines
cоr-
“whether,
report’s
a medical
four
required
from
test
the A.M.A. Guide-
ted one
Guidelines,
explain
does
the devia-
ners,
facially apparent and
not
unexplained,
tion,
agree
it is
we must
that
from the Guides can
substantial deviation
reference to their
evidence.
detected
mere
text.”
Central Waste
Whitener
South
DR. A.
REPORT OF
Auth.,
(Okl. 1989).
er and APPELLATE REVIEW II. еvidence, considered as not be cases, including recent Numerous *7 substantially comply with as it does not us, of call the Court the one before 20(a), (c) (h). Rule & review Appeals Supreme Court to compensation reports medical in workers’ LAY TESTIMONY alleged non-compliance with cases for See, Spangler v. e.g., reports all medical A.M.A. Guidelines. Because three Transp., P.2d 780 Lease-Way 20 Automotive requirements of Rule fail to meet the Whitener, 773 P.2d (Okla.App.1989); evidence 209 competent not and are therefore conclusion, (Okla.1989); Dry Valley v. Pauls we must 1248 upon which to base a (Okla. P.2d 238 Facility, of 771 lay testimony Health Care whether consider (Okla. P.2d 125 sup App.1989); LaBarge, 769 evidence to supplies sufficient Gaines’ Hilton, 1988); P.2d 1308 634 Compensation v. Court’s Goodrich port the Workers’ (Okla.1981). past In reviewed we have Indemnity v. Special In Fund order. parties preserved the Stockton, (Okl.1982), complaints if we held such P.2d 194 653 time the making objections at the disability by a issues “[wjhere is of charac that 21, course, of admitted. Rule expert professional testimo is require ter to Compensation extent, objections.4 requires such cause and ny determine the to testimony oral ex- objection offered objection An to is anala- have noted that such 3. We open at must be made court amination Compen- gous the evidence to demurrer to testimony sought to be elicited. is 1249, time the Whitener, supra, practice. at sation by deposi- testimony objection offered An 1. footnote deposi- interposed time the at the tion must be deposition hearing. at the tion offered or Objections to Evidence. Rule testimony objection offered An to medical grounds report, on if verified or declared 1080
courts,
quate
well
history
as this Court and the Court
in that the claimant’s
review,
Appeals
generous
have been
exposure
to other toxic chemicals was
objecting parties
with
insofar as 12 O.S.
included, he
first have
not
must
made that
2104 is concerned. That section
§
substantially
request
trial
identical
provides:
requirements
court. We will make like
predicated
ruling
Error
not be
on a
respect
alleged
computa-
with
errors in
which admits or excludes evidence unless
tions,
ratios, percentages
uses of
of disabil-
timely
...
objection
.a
or motion to strike
ity,
objections
and so forth.5 Absent
record,
appears
specific
stating the
reports
specificity
made with such
ground
if
objection,
specific
appellate
rely
courts hereаfter will
on a
ground
apparent
was not
from the con-
reporting physician's
20-required
Rule
as-
added)
(emphasis
text. ...
report substantially
sertion
his
com-
case,
recently
this
as with most others
Guidelines,
plies
appealing
A.M.A.
us,
grounds given
reviewed
at trial
parties
Court cases will
objections
general,
spe-
have been
arguments
heard to
not be
advance
thereon
practical
cific.
appellate
As
matter the
expressed
at this level that were not
being employed
courts are
to be courts of
arguably
trial of the case. Because
this
guide-
first review
A.M.A.
as to whether
past precedent,”
decision overrules “clear
lines are met. Such is not the function of
application
prospective only.
its
will be
appellate courts. Trial courts are not tradi-
Corp.,
v.
732
Carlile
Cotton Petroleum
tionally reversed for error unless the error
(Okla.1986);
P.2d
Ry.
N.
Great
was called to their attention at a
when
time
Co.,
Co.
Sunburst Oil &
U.S.
Ref
they
reasonably
themselves could
be ex- 358, 364,
145, 148,
53 S.Ct.
since would affirm the today promulgates though even this Court THE EMPLOYER’S MEDICAL REPORT opinion. new law in Part II of its THE TRIAL TRIBU- SUPPORTS I am authorized to state that Chief Jus- DENYING NAL’S ORDER THIS Hargrave Opala tice and Vice Chief Justice CLAIM expressed join with me the views herein. permanent partial The claimant seeks disability compensation respiratory im- OPALA, Justice, Vice Chief with pairment job sustained while on the for this HARGRAVE, Justice, joins, whom Chief employer. judge The trial considered three dissenting. claimant’s, letter-reports medical —the employer’s independent and the examiner’s. The court holds that the Workers’ Com- physician, hаving The claimant’s found his pensation denying order this claim Court’s lungs impaired to be result of continu- employer's must be vacated because the chemicals, exposure ous to fuels and other expert, who found the claimant to disability court-ap- rated his 50%. respiratory impairment, free of failed to pointed expert evaluated the condition at comply with the American Medical Associa- employer’s expert attrib- 20%. tion’s “Guides to the Evaluation of Perma- impairment workplace uted no I Impairment” nent cannot ac- [Guides]. “[a]ny symptoms respiratory concluded [of part today’s pronouncement cede to this entirely does have are due he ... disease] (1) following for the reasons: this claim years heavy smoking, although to 22 he was denied absence a work-related. quit yeаrs.” has the last three ;pulmonary injury fact found —a tribunal, judge the claimant “did trial which claimant does not The trial found (2) personal injury dispute and even if I were to assume not sustain an accidental disability job-re- arising claimed to have been out of and in the course of claim- lated, my employ- employment it firm view that the ant’s with the above named expert respondent employer].” three-judge deviate from the A er’s medical did not [the agree today’s panel denying Neither can I affirmed the order the claim. Guides. compen- legal Appeals assessment of the claimant’s medical The Court of vacated the view, decision, my concluding “there is opinion. court errs sation court’s gauging support value of that no the find- evidence by applying pre-Evidence ing Citing Perlinger norms of of the trial v. Code court.” law, yesteryear’s Rogers Company,4 Oklahoma common now J.C. Construction claim, implic- appellate court remanded the abrogated. Zebco, Okl., (1988) LaBarge Although 130- the third edition of the AMA 3. See J., (1989) (Opala, concurring part published, Guides has been cedes, the claimant con- *10 recognizes, dissenting Perlinger Rogers part); v. J.C. and the court that the 1984 J., Co., (Opala, applies supra this claim. Const. note 2 at 907 con- version to curring part dissenting part). and Okl., Co., Perlinger Rogers v. J.C. Const. 753 (1988). supra 4. See note 2. P.2d 907 Guides, the answer directing deviated from the itly an award be made based i.e., employer. Today, the the only competent would the on “the evidence”— favor breathing reports court-appoint- and of of the claimant’s court holds that the results three (FVC), experts. ed medical capacity vital аsures— f orced me (FEVi) and expiratory volume their forced review, at- claimant’s brief-in-chief On (FEVi/FVC) percent ratio as be ex- — must employer’s medical only tacked normal to make within the lower limits respiratory im- pert’s evaluating method of of rating impairment a zero conformable to pairment. corrective relief claimant For approach the Guides.5 In the court this solely his zero the contention that relied teachings depart seems to of doc- employer’s rating impairment Waste Whitener South Central Solid unexplained deviation tor from an stems respirato Authority,6 where we held that a He not from the Guides. did “impairment ry rating be rested on primary conclusion and physician’s finding that there of ventila- tribunal’s critical the results of but one” the three trial event, compensat- to be job-related injury tory any tests. or no function of a This makes a discussion ed. alone be denying this claim must still sus der purely from the Guides claimed deviation only all tained because not were three scope issues dehors the of academic and correctly by the em measurements made of purposes for review. For tendered also the results ployer’s physician, but an assessment compensation workers’ range within normal and each are disability presupposes the exist- permanent as to support hence the doctor’s view on-the-job injury. Because ence of some impairment. respiratory See absence of supports employer’s medical evidence dissent, to which shows the attachment this finding that the claim- trial tribunal’s supporting calculations the correctness in- from harm injuriеs do result ant’s findings. working environ- in and about the curred essence, that the argues, The claimant denying ment, the order I would sustain given by the rating em- impairment zero this claim. on a miscalcula- ployer’s physician is based alleged to error is said consti- tion. This II. impermissi- unexplained, hence tute an DID EVEN IF THE CLAIMANT SUFFER ble, from the Guides. claim- deviation INJURY, THE EM- AN ON-THE-JOB employer’s clearly wrong. The ant IS REPORT PLOYER’S MEDICAL because his medical evaluation is accurate VAL- WITHOUT PROBATIVE NOT necessary mathematical expert made UE adjustment claimant’s race. Coun- for this apparently claimant overlooked were, sel for the Assuming dispositive question explana- requirement. For a detailed this review, urged on whether as the claimant tion, to this dissent. see the attachment expert improperly employer’s lung all measures re- for ”[r]esults lists "three tests ... 5. The court’s four rangе must be in the normal quired [the to confirm that an examinee fits ... function according They impaired impairment] category.” appear person in- considered not to be 0% (shortness breath), 2) added.) 1) dypsnea (Emphasis ven- physiologic parameters.” clude: tilatory (FVC, FEVi/FVC) FEVi, ventilatory function are for those four tests Three of 3) consumption per ratio). "oxygen minute” or mea- (FVC, function FEVi/FVC FEVi Max). capacity Because diffusing exercise capaci- sured is the The fourth measurement (VO2 nor monoxide, the 1984 the 1988 version neither ty While latter of carbon Dco. requires all these normal results from Guides impairment pertinent zero classi- test is not to a precondition finding Guides, as a measurements fication, according both the impairment, required tests I assume the three no allow the "measured 1984 and 1988 editions refers are those of ventilato- court Max) capacity” alone test exercise (VO2 ry alone. function placing ex- alternative basis used governs Although category. impairment version of the Guides aminee the 0% (see 1), supra edition note claim Okl., (1989). change. noteworthy provides It does contain a *11 1084 competing letter-reports they
III. or may escape discovery point until some A PROBATIVE MEDICAL REPORT’S evidentiary hearing. At the course of an AF- VALUE MAY BE ADVERSELY law, probative the value of an common BY THE FAIL- FECTED EXPERT’S destroyed upon stood expert’s opinion mere A COMPLETE URE TO ASSUME upon showing expert relied inaccu- AND HISTORY ONLY ACCURATE incomplete rate or facts material THROUGH CROSS-EXAMINATION approach professional’s assessment.7 This A OPINION YIELDING CONTRARY changes longer light is no valid THE EXPERT’S IN- OR DISCLOSING 12 by provisions. effected the Code See TENT TO ABANDON HIS ORIGI- Today it is 2703 and 2705.8 O.S.1981 §§ NAL OPINION the cross-examiner who has the burden of claimant’s the medi- The court concludes crоss-examination, showing, through probative cal lacks value because complete expert’s to assume a or failure physician upon relied an inaccurate or history adversely accurate and of affect- incomplete history when he attributed opinion’s probative by elic- ing the value employee disability rating. At 50% opinion iting contrary either a or the hearing employer challenged the expert’s original intent to abandon his report’s probative very value for this rea- view based on facts conformable Today the court views the medical son. proof in the record.9 opinion utterly devoid of value comparing no more than the histo- Assuming probative-value status of after ry in the with “other testi- noted the claimant’s medical were now mony or evidence." cеrtiorari, gener- I would hold ally the factual basis of an ex- that when relating Flaws arise two challenged assumption pert opinion is expert’s opinion when an rests on contexts: facts, incomplete party false or assumption it is tainted some false or when against whom the evidence is offered has by incomplete Discrepancies may facts. be through cross-ex- showing, a facial initially apparent from examination the burden of 939, Evidence, Dickerson, Okl., (1985) ("Section Glaspey P.2d homa at 255 § 7. See v. 350 2705 (1960). complements 942 2705 Section 2703 and does not require, permits, the direct examiner but provide: 12 2703 § 8. The terms of O.S.1981 bring underlying upon out the data which the particular upon data in the case "The facts or based, appropriate expert’s opinion if it is expert opinion an or inference bаses require not confuse the trier of fact or does perceived by or made known to be those added.)); consumption” (Emphasis undue time hearing. type at or If of a him before Blakey, to the Oklahoma Evi- An Introduction par- reasonably upon experts relied in the Thirty-fourth Hearsay Excep- dence Code: the forming opinions ticular field in or inferences 1, 5, tion, (1980); 16 Tulsa L.J. 8 Jackman subject, or data need not be the facts Gilsinger, Expert Testimony Under the Okla- added.) (Emphasis in evidence." admissible Code, 767, O.B.J. homa Evidence 61 774-775 provide: The terms of 12 O.S.1981 2705 § (1990). expert may testify opinion in terms of or "The give his reasons therefor with- inference Nix, Okl., 764 Tank Truck Service v. 9.Bostick underlying prior or out disclosure of facts 1344, (1988). P.2d 1348 See also Smith v. Ford data, requires unless the court otherwise. 784, Co., (10th 626 F.2d 793-794 Cir. Motor expert may required to disclose the 918, 1363, 1980), cert. den. 450 U.S. 101 S.Ct. underlying or data on cross-examina- facts (the L.Ed.2d 344 combined effect of Rules added.) (Emphasis tion.” Evidence, 705, Federal Rules of [or 703 and may testify expert Since "an in the form of an 2705, supra note is to §§ 8] O.S.1981 2703 and underly- opinion prior without disclosure of the place exploring facts and the burden of data,” discrepancy ing facts or between facts underlying expert’s opinion assumptions adduced in evidence and those shown to have opposing squarely counsel on the shoulders of expert assumed does not itself been cross-examination); Bryan v. John Bean Divi sap destroy opinion's probative operate 541, (5th Corp., Cir. sion FMC 566 F.2d Therapy value. See Tiedemann Radiation ('“the 1978) eliciting the bases Consultants, onus Or. (Em Nix, placed (1985) on the cross-examined' Truck Service v. and Bostick Tank 1348; added.)). phasis Whinery, Okla- note 9 at see also 1 infra
1085 animation, opinion expert that the have that elicits would examination contrary different had all the material and an opinion originally been either to that If given correct been assumed. a medical facts or his intent to abandon his first opinion facially history, opinion.11 rests on a flawed is, that one which factual inaccuracies or hearing
deficiencies are discoverable before IV. inspection, objection on mere visual then an competency (admissibility) to its should be CONCLUSION expert’s deposition filed and the taken to employer’s is underlying a ferret out the facts. Should fatally competently supports at flawed. It initially appear or a discrepancy develop claim, denial. Because the “onus of hearing party against оf the claim’s the eliciting giv- the bases of the ex- opinion the should be whom is offered [claimant’s pert’s] opinion” clearly by en, cast the Evi- opportunity adverse- upon request, an against ly upon party dence Code the whom to affect opinion’s probative the value {here, employ- the expert. is offered through cross-examination er),12 pronouncement today court’s sum, a In the common law divined fatal claimant, wrongly places on the who was materially hypothetical from flaw a tainted offering party, producing the burden of question, opinion while the Code treats an which all material letter-report a data comprehensive differing on or less based conformity assumed are strict per only challengeable, se data as but not developed by the facts evidеnce. utterly probative devoid force.10 Medi- pro- opinions prima Ap- cal now stand facie I would hence vacate the Court of bative, evidentiary peals’ opinion at their and reinstate the trial tribu- least until value compensation. adversely through denying cross- nal’s order has been affected ATTACHMENT RAW DATA THE EMPLOYER’S MEDICAL REPORT:
UNDISPUTED FROM a black Claimant is male: n Age: year old Weight: 186 lbs. = = cm) (68 in. Height: 5'8" 173 cm 2.54 cm/in. 172.72 x (SPIROMETRY RESULTS): OBSERVED PULMONARY FUNCTION == = (1.) capacity vital FVC 3.50 liters Forced = = expiratory 3.11 1. Forced volume FEVi = = (3.11/3.50) percent Ratio as 89% X FEVi/FVC NORMAL DERIVED FROM TABLES USING RAW DATA: PREDICTED VALUES opinion judge expert's An be deemed some critical fact. If the trial should not against facially challenge, party utterly probative whom devoid value for a sustain the afforded, departure upon opinion apparent must is offered must be fatal from Guides show, through request, opportunity to distinguished cross- be from one that vulnerablе an examination, expert's opinion that would be cross-examination because dis destruction complete incomplete crepancies if the or cor- in or of facts assumed different or abandoned instance, judge expert. Should the trial former rect facts were known. law, Zebco, supra against offering party, LaBarge must presented is one of v. rule latter instance, opportunity at in the latter it is be afforded the either to stand note 3 while practice credibility beyond opinion replace it. the reach of or to This one of and hence reviewing Peabody scrutiny. Gal Court seems to re- court’s See Workers’ Workman, Okl., provisions Corp. quired Evidence Code’s 314- ion (1982). hypothetical question law’s abolish the common Nix, Bostick Tank Truck Service v. device. See 1348; supra at Whitener v. South Cent. note 9 When facts at variance with those assumed 2; Auth., supra n. note 6 at 1249 see Solid Waste letter-report deposi- physician’s or Corp., Bryan revealed, v. John Bean Division FMC also party are it devolves tion supra note at 545. proof challenge opposing the assumption value of the inac- incomplete supra cited note 9. or for want of 12.See the authorities curate = = = (Table 2, Guides, ed., 89) 4.75 1. 1. AMA 2d FVC *13 (Table 4, 6, 91) 3.85 at FEVi (Table 93) 81.0% FEVi/FVC The for FVC is the table-derived value lower limit normal for FVC minus the 95% — = 1.12 Confidence Interval or 4.75 3.63 1. The for the table-derived value for lower limit normal minus the 95% FEVi FEVi — = Confidence Interval or 3.85 0.842 3.01 1. is the value lower limit normal table-derived FEVi/FVC FEVi/FVC — = minus the Confidence Interval 8.28 95% 81.0% 72.7%. they “The are spirometry patients results for black divided 0.9 before should be compared Guides, ed., predicted at 89. values.” AMA 2d CLAIMANT’S ADJUSTED SPIROMETRY RESULTS: = 3.89 1. 1./0.9) (3.50 FVC = (3.11 1./0.9) 1. FEVi = 89% (3.46/3.89) X FEVi/FVC CONCLUSION: ventilatory claimant’s function test are range: results all within the normal Claimant’s values Lower limit normal 1.
FVC 3.89 3.63 1. 3.46 1. 3.01 FEVi 89% 72.7% FEVi/FVC LARGE, Appellant, Michael AND MANU
ACME ENGINEERING CORPORATION,
FACTURING
Appellee.
No. 66098.
Supreme Oklahoma.
April