*1 question The first certified whether asks deaths did not arise out the inherent use and Houghton by murders Sanders vehicle. being in burned to death the trunk of the I am authorized to state that Justice automobile “arise out ... use of a LAVENDER join and Justice SIMMS contemplated motor as vehicle” 36 O.S. these views. question I 1981 3636. would answer that § urged Willard, negative. in the As I

order to within injury fall Section causally

must be connected to inherent annotation,

use of the vehicle. See (1982).

ALR4th 10 The vehicle must be

more that the mere situs of the accident. Velthouse, Ins.

Criterion Co. v. (Alaska 1986). While the vehicle does Gary YORK, Appellant, I. cause, proximate not have to be the sense, legal injury

strict must least relate to the inherent use of the vehicle. BURGESS-NORTON MANUFACTURING Id. COMPANY, Own Risk the Work- rely independent Court,

Rather than on “acts of Appellees. ers’ significance” to chain sever the of events No. 70766. does, the majority simply I would hold that as a matter of law the murders were Supreme Court of Oklahoma. causally not connected inherent use Dec. of the vehicle. While reach both rationales conclusion, same the latter nar- more rowly the applicable defines test. This con-

struction would allow for consideration of intent, contracting parties recog- while

nizing link between vehicle and must exist. v. Am. Ins. Sciascia

Co., N.J.Super. 443 A.2d (1982).

Here, the felonious deeds of Hain and accomplished

Lambert the murders. The

deaths did not arise out of the inherent use the vehicle. Automobiles are for loco-

motion, imprisonment nor criminal I agree

incineration. while liable, carrier cannot held I

U.M. do so

for the reason that there is no causal con- tragic

nection between these deaths and

the inherent use of vehicle. questions,

As remaining for the the view question

asserted here as to the first unnecessary

makes it to address them. It

is immaterial whether there was an act of

“independent significance,” or whether the

perpetrators of the crime were considered

“operators” an- vehicle. Under questions to those

swers insurer

simply not liable under the uninsured mo- provision, and

torist because the *2 Bell, Norman, appellant,

Richard A. for McGivern, Jr., L. Craw- Paul V. Daniel Gilliard, ford, McGivern, Scott, McGivern & Robinson, Tulsa, appellees. SUMMERS, Justice. case

This Workers’ presents principal issue non-com- as its pliance with the of medical Impair- to the Evaluation Permanent (Guides), published adopted ment the American Medical Association. disregarded inconsistent employer's doctor showing impair- test results ment, and determined instead impairment. We find claimant had no such disregard that the doctor could results, doing in so the inconsistent but perform an required additional finding that the claimant was not before impaired. find, secondary

In a issue we contrary from the Guides. The relevant1 statute holding judge, of the trial part: states testimony claimant’s medical constituted provided herein, Except as otherwise *3 competent impairment. of evidence examining physician shall only evalu- ate 4, 1987, in York filed claim on accordance the alleg- June latest ‘Guides to ing had the Evaluation Per- that he an employment- sustained of Impairment’ manent adopted pub- and injury related lungs upper respi- by lished the ratory system. American Medical Associa- judge The trial found that examining tion. The physician York did shall not sustain an personal accidental guides except not deviate injury arising in said as out of the course of from provided be may specifically employment. judge The trial also found for guides. officially These adopted guides that the claimant’s medical was evidence shall the exclusive basis testimony not for competent finding sustain of regard perma- conclusions with occupational disease thus claimant did nent with the exception not proof. meet his burden of The claim- paragraph title, 3 22 of Section of this appealed. ant relating to scheduled member or In unpublished opinion the Court of loss; and impairment, pain including Appeals found that the em- the strength, may loss of be awarded with admitted, ployer’s erroneously doctor was respect to injuries those or areas of the and that the of the claimant’s doctor body specifically by covered said was competent impairment. evidence It guides.” O.S.Supp.1986, 3(11). 85 § the cause remanded with directions to en- (Emphasis added). ter awarding an order the claimant com- plainly This statute states pensation physician compe- the only on basis of the impairment according must evaluate evidence, is, to the tent that the claimant’s. The An impairment rating may Guides.2 devi- employer petitioned for certiorari and the ate from the if exception Guides is writ previously granted. was We vacate “specifically provided guides”. for in the opinion of Appeals, the Court re- words, other to deviate court, compensation verse the order of the from such Guides deviation must be by allowed for proceedings. remand further the Guides itself.3 Employer’s I. evidence. initially We must determine which edition Our in applies. examining phy- standard of review workers’ of the The compensation cases is to determine wheth sician must use “latest” edition er compensation 3(H).4 the order of the O.S.Supp.1987, court 85 Guides. The § supported by any competent printing third evidence. first of the edition of the Municipal Hospital, Parks v. 684 was in Norman November of The 1988. (Okla.1984). by P.2d 548 The first in claimant’s employer’s issue examinations employer’s opinion volves the doctor doctor occurred November of 1987 and February Clearly, and his assertion that his deviated the second edi- apply always O.S.Supp. 1. We the statute in effect at the time of has not been true. 85 1978, 3(11) Halliburton, 812, deviating injury. allowed for assessments § Knott v. 752 P.2d from the Guides when the plained by (Okla.1988); deviation ex- Way Freight Lee 813 Motor v. Wil- examining physician. In 1985 777, son, (Okla.1980). 609 P.2d 779 longer provides was amended § 3 explanation. deviation based on mere 85 O.S. ac This evaluation of must be 3(11). Supp.1985, § cording the Guides when the even conclusion impair is that claimant sustained has not injuries occurring 4. note after respiratory system. ment to the Gaines v. Sun 1, 31, 1988, through November December Marketing, P.2d 1076- are evaluated the Second Edition of AMA (Okla.1990). Language contrary Guides under the new Rules of the Workers’ Compensation Trucks, (Okla. Court, 21(D), O.S.Supp. Case v. Mack Rule (Effective 1990). App.1989) hereby disapproved. App. 1990 Ch. November suits, my opinion results by which it these appropriate standard tion was at all and one must evalu- cannot used York’s determine of their people ate these on the basis by the findings A made review of objective findings clinical status and discussing employer’s doctor is needed changed. which cannot from the Guides. the doctor’s deviation again Again, due to above reasons I doctor, F., referred Dr. exception to the AMA Guides will take spiro- hospital where he received York to having man im- and rate this metry of 1987. tests in October zero. lungs. to his pairment due restric- indicated severe obstructive *4 the first examination lung tive disease. In perfectly healthy and can This man is (FVC) was capacity vital 44% York’s forced type usual of work doing continue his value, a and this indicates predicted without restrictions. reported, how- impairment.5 Dr. F. severe spirometry report indicates that ever, walked, and act- appeared, York to determine cannot be used test results opinion that was of the “vigorously” ed and they impairment are inconsistent because said, lung “In disease. He York had no in- other. We first address the with each course, excep- taking I am respect, of this rating then of no consistent results Guides, as I feel the the AMA tion to hy- take into consideration Guides do not anxiety syndromes perventilation results. Inconsistent test pulmonary on the causing false results The edition to the Guides second hyperventi- This man’s testing procedures. states: job is not related to syndrome lation

circumstance.” per- spirometric “The tests should formed as described in 1978 ATS spirometry tests requested further Dr. F. Epidemiology Project. Standardization gases. arterial analysis of blood and an calibration, equipment, methods of The repeated Feb- tests were spirometry meet the ATS cri- techniques should day York’s ruary On the same of 1988. teria.” of the and then FVC was first 42% 82% value, FEV1 was predicted normal RO, “Crapo refer to an article: predicted first and then 83% 53% values Spirometric AH: Reference Morris highest values for value. York’s normal using techniques equipment that meet FEV1, respectively, and 2.87 3.37 FVC Respir ATS recommendations. Am Rev i.e., a Class show a mild 1981; at 101. Dis 123:659-664.” Guides reported: Dr. F. impairment.6 published This article cites the standards my original state- “Finally, repeat I will Society Gard- by the Thoracic at: American my report of November ment as of RM, workshop et al. on ner Snowbird lung disease this man has 1987 that spirometry: statement standardization lung disease. His had no and he has Society published by the American Thoracic hyperventilation syn- only problem is Respiratory Review American drome. Disease, 1979, In these refer- 119:831-838. American Thoracic So- words, materials the enced when other “acceptable” spiro- ciety describe per- and not standards not reliable studies metry re- results as follows: properly inconsistent formed with (confidence Impairment” predicted inter- Respiratory FVC val) of 5.20-1.115 5. Table l-"Classes normal). = (lower York's best 4.09 limit Guides at 86. reported and Dr. F. this effort for FVC was 3.37 predicted value. York's as 82% of the shows a Class amount Dr. F.’s 6. The face of for normal as was below the lower limit spirometry are used. FVC results if by interval but calculating per the 95% confidence explained defined the method for predicted. the face of the 60% of predicted above in Whitener South cent of values shows Class Authority, Dr. F.’s Waste Central Solid explained of the Guides. (Okla.1989). report: in Table 1 York as Dr. F.'s 1251-1252 From 3 acceptable measurement, (3) “A minimum of FVC maneu- the ratio of the one will performed. Acceptability vers to the other. employ He did not the esti- by will determined the technician’s test, mated exercise a test done on subject observation that the understood cycle ergometer treadmill or to estimate and' performed instructions the test oxygen minute, consumption per i.e., the exhalation, with a smooth continous with In disregarding V02. effort, apparent maximal with good Dr. F. wrote start, (1) (2) coughing, without Val- “This inconsistent result and im- obvious (glottis closure). (3) salva maneuver is, provement day, same be- (4) Early expiration termination of ... fore and gases after arterial blood were (5) mouthpiece A leak. An obstructed drawn from his arm show that this man’s (6) unsatisfactory expi- ... An start of certainly results are They not reliable. ration, characterized excessive hesi- entirely should be discarded as this man (7) tation or false starts ... An exces- cooperating was either not accept- variability among sive the three intentionally attempted to change the accept- able curves. The best the 3 lung results to imitate disease.” *5 vary by able curves should not more (This referred to jumping Claimant’s FVC per than ±5 cent or reading of 82%, from 42% to and his FEV1 from 53% ±100ml, whichever greater.” Am 83%, to in day.) the same 1979; (Em- Respir at Rev Dis step Guides set out the next for a added). phasis testing physician who coopera- doubts the The seventh factor set forth above indi- the testing process— tion of claimant in the spirometry cates that maneuvers which are and it is the They V02. state: acceptable will acceptable otherwise not be capacity: “Estimated exercise [V02] rating impairment for if the best maneuver Testing to measure exercise more the varies than stated amount. (1) an should be done when individual’s York’s two best for FVC were efforts spirometry and Deo measurement are 3.37 liters and 2.19 liters. These ef- two within not the confidence interval 95% 5%, vary by forts more than and Dr. F. age height, (2) his or for her his OR the spirometry treated results as unac- her spirometry or Deo measure- ceptable measuring impairment for because impairment ments do not indicate severe Thus, report of this variation.7 Dr. F.’s did below; (3) as defined OR the individual not deviate from the second edition the of physically states that or she he unable in- merely disregarded because he Guides job specific to meet the demands aof spirometry consistent results. breathlessness; (4) because of OR the performed individual has not maxi- impairment. 2. Evaluation mally spirometry correctly in the We now come to next the issue: Deo tests.” at 97. Guides report does Dr. F.’s deviate from the conclusions, Clearly, catego- under Dr. F.’s 1, i.e., assessing in York as in Class ry applies number four here: “the individu- with no Dr. F. utilized the maximally performed al has not or correct- spirometry required by the to spirometry the ly in or Deo tests”. lung evaluate mechanics in his examina (for They (1) required perform Dr. F. was to an estimat- tion. FVC forced vital determination, measurement, (2) do capacity), a volume ed V02 and his failure to FEV1, departure of air in so from volume moved the first shows unauthorized expiration, second of forced flow rate the Guides.8 oratories; Although such action was authorized Standardization of —1987 1987; standards, update. Respir Am Rev Dis 136:1285— edition of the Guides third (Cited edition in the third variability requiring spiro- such treats more 118). Guides at metry testing complete disregard. rather with Society Thoracic American Committee Profi- in 8. Another test sometimes used ciency Pulmonary Function Standards for Lab- impairment single breath Deo assessment noticing “mucous build- objected York to the admission Dr. he started my sought He non-compliance up with the throat”. medical at- F.’s Guides, reviewing objection we the company this from doctor and that tention prior to the opinion note that the case was tried that the mucous doctor was mandate Gaines Sun from an ulcer. York testified that (Okla.1990), Marketing, but it there was ventilation fan: "... had objection supervisor need not have thus asked the never worked. We required under that case. specificity now get could it fixed.” fix it. We never F.’s failed to We find that Dr. com- C., doctor, Dr. said that York had York's Guides, with the and was thus insuffi- ply partial permanent impairment percent of 25 court’s order. cient to sustain trial body as whole second- ary respiratory to Class II. The claimant’s evidence. percent damage lungs partial his and 10 deposition of York’s doctor was permanent impairment secondary ob- trial at trial. The court found submitted upper airway respiratory struction did not sustain accidental York concerning York’s system. Dr. C.’s arising course of out Burgess exposure to certain substances at respondent. The employment with the my was summarized: “It's Norton court further found that York's medi trial these have caused opinion that [substances] competent, and that cal evidence was respiratory some marked proof meet he had failed to his burden of gentleman”. 3.4 Title 85. as set forth at Section The doctor testified that York listed the *6 proof in Generally, burden of “[t]he exposed he to at his em- substances was compensation upon the workers cases rests spent he ployment and the amount of time seeking benefits to establish all claimant employment. positions in the various essential elements of his claim”. Arm particular explained Dr. medical C. Holcomb, co, Inc. v. problems exposure with to kero- associated (Okla.1985). of the claimant’s Our review problems and that such sene and its fumes that he met that burden. evidence shows experienced by York. Dr. C. also were exposure gas natural was stipulated explained York that to employer that was expe- pulmonary edema alleged consistent with the employee at the time of the an York. Dr. C. testified that he employ- by to his rienced injury and York testified as evidence of that did not find ment York testified dur- conditions. problems exposure from to exposed he to as would occur ing employment his was car- dust, carbide, particulate matter such as explained dust and asbestos bon opinion explained He that his exposed. he York asbestos. manner in which was description upon of the ciga- was based York’s that he had never smoked testified exposed employ- to cigarette he was at exposed to the rettes was substances but ment, knowledge his medical of the conse- employees. York also testi- other smoke of exposure to those quences to substances exposed to fumes from that he was fied listed, and manifestation of York York's mixed with kerosene. He stated solvent exposure symptoms with to and nose consistent fumes irritated his throat that the physician diffusing In the case before us the carbon mo- with Orrell. to determine finding performed judgment when that A Deo test "should be and made noxide. a greater exercised his complaints patient respiratory that are of has performing the maxi- was the claimant severity spirometry observed than the correctly. require mally further The Guides ex- Guides at 97. We results would indicate." plained finding testing is made. The when such a Goodrich, P.2d v. B.F. in Orrell analogous with the Deo test would situation (Okla.1990), used in medical discretion is that finding physician that a makes a occur when particular subjective determining whether com- complaints respiratory patient does indeed have results, plaints correlate with the severity greater than the observed that thus, guess a this court would not second then after mak- spirometry would indicate—and test which finds Deo to medical decision unnecessary. finding give ing fail to the Deo test. such a analysis herein is consistent Our those working (Okla.1977). substances while em- for his deposition Dr. C’s discloses ployer. find opinion to inbe com- presence and extent of permanent im- pliance consistent with pairment resulting from accidental injury reasoning our Gaines Sun sufficient to proof. meet York’s burden (Okla.1990). Marketing, 790 P.2d 1073 explained we Gaines III. Conclusion. exposure due to sub- toxic York’s evidence was sufficient to make a upon stances should based information prima showing facie of an accidental period “regarding expo- or extent of out arising of and in the employ- sure course of ... estimate the hazard [and an] [of] posed ment. The by toxic claimant met chemicals and his burden of fumes.” proof. By Id. 790 at 1078. explained failing P.2d Dr. C. that to administer the Y02 he had an posed by estimate of the hazard imper- witness the substances York exposed at missibly Guides, deviated from and his employment. Dr. explained C. also that report was thus support insufficient to York had informed him of the duration of denying order benefits. The exposure to the substances. Appeals Court of is vacated. The order of reversed, judge pursuant trial Dr. C. testified that he did not need our in Gaines, supra announcement know exposure the exact amount of in mak- 1081, the case is remanded to the Workers’ ing regarding his conclusions the sub- for a stances “we Court new trial. phy- involved because know as sicians individuals have different

responses to certain length levels C.J., HARGRAVE, OPALA, V.C.J., and exposure.” essentially Dr. C. testified that HODGES, LAVENDER ALMA exposure extent of York’s was of suffi- WILSON, JJ„ concur. cient temporal duration had the rela- tionship type to a KAUGER, J., known specially. concur such exposure. caused The Guides SIMMS, JJ., DOOLIN, dissent. provide assessment of *7 fumes, exposure gases, due to to noxious particulate upon: or matter OPALA, is based 1. The Justice, concurring. Vice Chief year exposed a claimant was first to an disposition I concur court’s agent [gas, particulate matter]; fume or 2. pronouncement. claim I and its write exposure

The extent of The total 3. number separately explain why join today’s to I years exposure of of 4. The claimant’s esti- opinion. agent posed mate of the hazard the 5. years exposure The of since the number respiratory impairment. claim is for ceased. at 86. We find that Dr. According employer’s physician, upon C.’s was based these consider- ventilatory (spirome- claimant’s function complies ations and Guides. tric) test results1 inconsistent and “unacceptable.” expert hence The medical that have said the cause and extent that, opinion, explained in his claimant disability proved by of must be the testimo failed to cooperate either tried to imitate ny professional people. of skilled Chro symptoms lung disease. The American malloy-American, Wright, Okla. Div. v. (Okla.1977) 567 Medical Association’s “Guides to the Evalu Groendyke P.2d 71 Trans Willson, (Okla. Impairment” port, ation Permanent Inc. v. 527 P.2d 1364 [Guides]2 1974) requires Independent that a doctor confronted with an Dist. No. School Albus, County patient person’s uncooperative Tulsa v. 572 P.2d 554 that (1984) applies explanation to For an of the method which 2. The Guides’ second edition ventilatory "normar function values are to this claim. results, compared with actual test see Whitener Auth., Okl., v. South Solid Waste Cent. 773 P.2d (1989). 1251-1252 preced- capacity.” physi I this cause exercise concur here because “estimated failure to administer this test to cian’s ed Gaines. The Workers’ include its results makes the evaluation heard on March Court this matter under hence substandard re-emphasize I write to that when cases probative valu saps the medical May have reach us which been tried after flaw in the Because this e.4 alike, 5, 1990, employers employees curable, proof appears the claim is medical competent present must evidence employer properly remanded afford no at of trial —there will be the time more replace opportunity an substandard preserve is necessary This rule “overs”. that is defect-free. report with one that judicial economy, and to assure there Today correctly the court follows meaningful litigation. will end teaching v. Sun of Gaines directing trial tribunal Marketing5 by SIMMS, Justice, dissenting; re- upon to reconsider the entire claim mand.6 I I respectfully must Dissent. submit upon majority opinion predicated KAUGER, Justice, concurring specially: is, premise, AMA Guidelines erroneous granted on note that certiorari was I applied required must be and the tests v. Sun November Gaines given by examining physician thereby Mktg., 790 P.2d Refinery & though physician pa- finds the even 4,May (Okla.1990), which was mandated lung impair- “0” tient has disease and 1990, we held that: ment. “Henceforth, until such time as 3(11), the O.S.Supp.1986, As I read 85 § after shall come before us tried cases is to im- purpose of the Guide evaluate herein, when a medical mandate pairment, not to determine if fact for an award or which is the sole basis 20(3)(i) requires exists. Rule incompetent of award held to be denial compliance the statement of substantial non-probative as evidence under Rule in reference to de- with the Guides Compen- the Workers’ 20 of the Rules of upon which an tailed factors evaluation Court, Court will reverse the sation permanent re- based. it judgment on which is based question report in concludes there proceedings, ...” mand for further Okl., Workman, Guides, Corp. p. provide body 312, as follows: Galion 3. The (1982). n. 7 "Testing exercise should to measure * * * (4) individual has [when] be done: *8 maximally correctly performed 1073, Okl., (1990). 5. 1080-1081 Before added.) (Emphasis tests.” of Deo Gaines, appellate court held an whenever medical evidence to be or claimant’s report, un- probative value of medical flawed, fatally admissibility, the trial tribunal was directed to competence denotes the its like provide evidentiary sup- legal efficacy upon opponent's proof's an order based com enter establish. port technique which it seeks to petent was evidence. known stan- meets the Guides’ in evidence if dards for Perlinger "jackpot LaBarge rule.” v. the Zebco, See compensable evaluating impairment, Okl., (1989) (Opa P.2d 130-131 purpose. probative for that It can has value it la, J., dissenting concurring part part). "probative compensa- be described as hence teaching of Its demise came with the Gaines. short, impairment.” evidence which is ble also, Refinery Marketing, See Gaines v. Sun proof of is to be in law as a fact said sufficient V.C.J., dissenting). (Opala, supra at 1082 v. South "probative” that fact. See Whitener Auth., supra P.2d note Cent. Solid Waste findings, Contrary judge’s the trial 1; Hill, n. 201 Kan. at 1249 Akin v. Estate of the basic ele- claimant’s evidence does establish (1968). extent which P.2d (a) exposed to harm- of his claim: he ments probative evi- weight admitted is to be accorded period particles ful airborne at work for suffi- fact. When it is issue for the trier of dence (b) injury, respira- permanent cient to cause proof urged is com- offered or admitted is (c) tory system impaired and force, any probative chal- pletely devoid of workplace-related causally attributable to the lenge testing the evidence as calls for effective exposure. legal proof it to estab- for the facts is tendered question presents pure Pea- law. lish. This is permanent impairment. This conclu- upon objective

sion was based the doctor’s which,

findings observed, he cannot be

changed.

I would hold to be admissible, however,

competent and I

would leave to the trier of the facts the any,

determination what if weight, given

should be the report.

Simply put, my position physi- it

cian need not resort Guides to evalu- finding

ate where there nois

I am authorized to state that Justice joins

DOOLIN expressed views here-

in. AUTHORITY,

GRAND RIVER DAM

public corporation, Appellee, Eaton, Nadja

Don E. L. EATON al., Appellants.

No. 75022.

Supreme Court of Oklahoma.

Dec.