IN THE COURT OF CIVL APPEALS OF THE STATE OF OKLAHOMA

FILEDJUN - 1 ?009

WORKERS'COMPENSATION COURTNOT FOR OFFICIAL PUBLICATION

DIVISION II

OKLAHOMA DEPARTMENTOF HUMAN SERVICES, andCOMPSOI.JRCE OKLAHOMA,

Petitioners,

vs.

CHARLOTTE JACKSON, and THEWORKERS' COMPENSATIONCOURT,

Respondents.

Margaret A. BomhoffFELLERS, SNIDER, BLANKENSHIP,BAILEY & TIPPENS, P.C.Oklahoma City, Oklahoma

Brandon J. BurtonT.R. BanksBURTON & ASSOCIATES, P.C.Oklahoma City, Oklahoma

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PROCEEDING TO REVIEW AN ORDER OFTHE WORKERS' COMPENSATION COURT

HONORABLE MICHAEL J. HARKEY, TRIAL ruDGE

SUSTAINED

w.c.c. {f 2007-Lo645K

Case No. 105,926

For Petitioners

For Respondents

OPINION BY JANE P. WISEMAN, VICE CHIEF JUDGE:

Oklahoma Department of Human Services (DHS) and Compsource

Oklahoma (collectively, Employer) seek review of an order of the Workers'

Compensation Court awarding Charlotte Jackson (Claimant) permanent partial

disability (PPD) benefits for an injury to her neck and lumbar back. The issue on

appeal is whether there is competent evidence to support the trial court's findings

that Claimant sustained permanent impairments. We find that the trial court's

decision is supported by competent evidence and sustain its order.

FACTS AND PROCEDURAL BACKGROUND

Claimant filed a Form 3 on September 12,2007, claiming she sustained

injury to her neck and left shoulder during a motor vehicle accident. Employer did

not dispute that Claimant zuffered a work-related injury. On November 15,2007,

Claimant filed another Form 3 in which she claimed an injury to her back arising

out of the same accident.

At the trial held on May 13, 2008, Employer denied that Claimant was

perrnanently disabled. Claimant testified that on August 18,2007 , she went "on an

errand to get pizza for the team, and on the way back [she] was rear-ended at a red

lighL" Claimant testified she was seen at the "Baptist Emergency Room" on the

day of the accident or the day after. She went to see Dr. Michael Chiaffitelli within

2

a week or two of the accident. She was released to go back to work in October

2007, but after she went back to work, she continued to have problems.

Claimant saw Dr. A.J. Bisson on November 19,2007, and he ordered MRI

testing on her back and neck. After Dr. Bisson reviewed the MRI results, 'ohe

basically determined there was not much in the way of treatment he could do for

[her] from.that"time on, other than home exercises." Dr. Bisson released Claimant

from his care on January 18, 2008.

At the time of fiial, Claimant testified that the only medication she was

taking for her injury was over-the-counter Tylenol. She claimed that she was still

having problems with her neck and back. She testified that she has pain in her

neck everyday. She also has pain in her left shoulder and low back and she cannot

sit for long periods or lie down without these body parts bothering her. She also

testified that climbing stairs hurts and she is unable to do household chores because

of the pain. When asked if she was ever pain free in her low back, Claimant

responded, 'oNot often." During cross-examination; Claimant admitted that she

does not have any restrictions at work, she still works full time, and she has not had

any reduction in her paY.

At the conclusion of testimony, Claimant offered Dr. Lance Rosson's report

into evidence. When asked if there were any objections, Employer's attorney

stated the following:

Your Honorn I have an objection regarding the rating,both the neck and the back rating. The back has 5percent soft tissue rating, and there's a 4 percent ratingfor soft tissue for the neck. I don't think there's anyevidence of any objective and permanent anatomicalabnormality. Dr. Rosson says there is, but he doesn't tell

us what that is exactly. And based upon the MRI's, I

don't think it supports a finding of permanent disability'

The court stated that it would take Employer's objection into consideration. The

court went on to state:

I'm not sure that the Guides give a percentage of

impairment for "soft tissue" injury, but I'll have toconsider whether the range of motion is an anatomicalabnormality. I don't know. I'll consider it one way or

the other. But I'll think about your probative valueobjection. I appreciate your comments, but otherwiseovernrled and it will be admitted as Claimant's Exhibit 1.

Dr. Rosson performed range of motion testing on Claimant's back which

produced the following results: (1) true lumbar flexion to 40 degrees, (2) true

lumbar extension to l5 degrees, (3) right lateral flexion to 15 degrees, (a) left

lateral flexion to l5 degrees, (5) straight leg raising is positive at 65 degrees on the

right and 65 degrees on the left. The range of motion testing on Claimant's neck

4

produced the following results: (l) flexion to 40 degrees, (2) extension to 40

degrees, (3) right lateral flexion to 30 degrees, (4) left lateral flexion to 30 degrees,

(5) right rotation to 60 degrees, (6) left rotation to 50 degrees. As to both sets of

. range of motion tests, Dr. Rosson stated, "These measurements were obtained by

dual inclinometer and they satisfy the validity criteria for range of motion

measurements . . . in accordance with the AMA Guidelines."

Dr. Rosson opined that Claimant had sustained an lsYopermanent partial

impairment to the body as a whole as a result of the injury to her back 'obased upon

l l% due to range of motion abnormalitres,5%o due to soft tissue injury, and2o/o

due to residual neurosensory injury." Additionally, Dr. Rosson found that

Claimant sustained a lTYo pennanent partial impairment to the whole person from

the injury to her neck. Dr. Rosson's calculation was o'based upon 8% due to range

of motion abnormalities,4Yo due to soft tissue injury, and 5Vo due to residual

neurosensory injury."

Employer presented the report of C.B. Pettigrew, D.O., in which he gave the

opinion that "[Claimant] has sustained no permanent partial impairment" and

oosustained no anatomical abnormality to the cervical, thoracic, or lumbar spine, or

left shoulder as a result" of her work-related accident. In his evaluation, Dr.

Pettigrew performed range of motion tests, the results of which differed in many

areas from the tests performed by Dr. Rosson.

Employer also submitted the medical report of Dr. A.J. Bisson, which

indicated that Claimant's cervical and lumbar strains had resolved and that she had

reached maximum medical improvement. Dr. Bisson stated, "[s]he can partake in

fulIduty work activities. I would not anticipate there to be a need for any type of

work restrictions to be placed upon her, particularly grven the findings of her MRI

studies. Additionally, one would not anticipate there to be any permanent

impairment."

The trial court found Claimant sustained an accidental personal injury to her

neck and lumbar back arising out of and in the course of her employment with

DHS, and that she was paid temporary total disability benefits from August 24-28,

2007 , and September l8 through October 28,2007 . The court found that Claimant

..sustained 7 percent IPPD] to the NECK (permanent anatomical abnormality) and

9 percent IPPDI to the LUMBAR BACK (permanent anatomical abnormality), for

which Claimant is entitled to eompensation for 80 weeks."

Employer appeals.

STANDARD OF REVIEW

We may not disturb atialcourt's non-jurisdictional findings if supported by

competent proof. Lanrnan v. Oklahoma County Sheriff 's Office,1998 OK 37,n 6,

958 P.2d 795,798.

ANALYSIS

On appeal Employer contends that the trial court's award of PPD is not

supported by objective medical evidence. Employer claims that the MRI report

offered by Claimant does not support an award of PPD. The MRI report

introduced by Claimant stated that the MRI of the lumbar spine is

"[u]nremarkable." Employer claims that Dr. Rosson's report does not even

indicate that he reviewed either of the reports of the MRIs performed on Claimant.

Employer contends that this means that Dr. Rosson's finding ofpermanent

impairment is not supported by competent evidence. Employer additionally

contends that Claimant is not entitled to PPD for a soft tissue injury.

Title 85 O.S. Supp. 2008 $ 22(3Xd) provides, in parto

Soft Tissue Injury: In case of a nonsurgical soft tissue

injury, temporary total compensation shall not exceedeight (8) weeks. A claimant who has been recommendedby a treating physician for surgery for a soft tissue injury

may petition the Court for one extension of temporary

total compensation and the court may order such anextension, not to exceed sixteen (16) additional weeks, if

the treating physician indicates that such an extension isappropriate or as agreed to by all parties. In the event thesurgery is not performed, the benefits for the extensionperiod shall be terminated. For purposes of this section,"soft tissue injury" means damage to one or more of thetissues that surround bones and joints. "Soft tissueinjury" includes, but is not limited to: sprains, strains,contusions, tendonitis, and muscle tears. . . .

(Emphasis added.) Subsection (d) further provides:

In all cases of soft tissue injury, the employee shall onlybe entitled to appropriate and necessary medical care andtemporary total disability as set out in paragraph 2 of thissection, unless there is objective medical evidence of aperrnanent anatomical abnormality. In determining theexistence of such an abnormality, the Court may considerif there is credible medical evidence that the ability of theemployee to earn wages at the same level as before theinjury has been permanently impaired-

(Emphasis added.) Therefore, under current law, PPD can only be awarded for soft

tissue injuries when there is objective medical evidence that the claimant has a

permanent anatomical abnormality.

Since January 30,2006, Rule 20(c) of the Rules of the Workers'

Compensation Court, 85 O.S. Supp. 2006, ch.4, app., has provided:

Medical opinions concerning the existence or extent ofperrnanent impairment must be supported by objectivemedical evidence of permanent anatomical abnorntality,and, in appropriate cases, may include medical evidencethat the ability of the employee to earn wages at the samelevel as before the injury has been pennanently impaired.Medical opinions supporting employment as the major

cause of occupational disease or age-related deteriorationor degeneration, must be supported by objective medicalevidence. "Obiective medical evidence" includesrnedtcal testimony that rests on reliable scientific,technical or specialized knowledge, and assists the Courtto understand the evidence or to determine a fact inissue.

(Emphasis added.) Title 85 O.S. Supp. 2008 $ 3(17) defines "objective medical

evidence" as 'oevidence which meets the criteria of Federal Rule of Evidence 702

and all U.S. Supreme Court case law applicable thereto."

Here, both Dr. Rosson and Dr. Pettigrew performed range of motion tests.

Based on his findings, Dr. Rosson concluded that Claimant suffered from range of

motion abnormalities. Although Employer asserts that there is no objective

medical evidence of an anatomical abnormality, Employer does not take into

account that these range of motion tests were performed. and that Dr. Rosson based

his medical opinion in part on the results of the tests, as evidenced by the fact that

Dr. Rosson gave the opinion that Claimant's permanent disability was based, at

least in part, on her loss of range of motion. Also, Dr. Rosson specifically cites the

AMA Guidelines in support of his testing results.

Under 85 O.S. Supp. 2008 $ 3(19),

'nPermanent impairment" means any anatomicalabnormality after maximum medical improvement hasbeen achieved, which abnormality or loss the physician

considers to be capable of being evaluated at the time the

rating is made. Except as otherwise provided herein, any

examining physician shall only evaluate impairment inaccordance with the latest publication of the AmericanMedical Association's "Guides to the Evaluation of

Permanent Impairment" in effect at the time of the

injury. . . . All evaluations of permanent impairmentmust be supported by objective medical evidence. . . .

We find no trial court erroi in awarding PPD benefits to Claimant because Dr.

Rosson's opinion that Claimant has a permanent anatomical abnormality

constitutes objective medical evidence under $ 22(3Xd) to support a PPD award.

Dr. Rosson reviewed Claimant's medical history, performed tests to determine if

she suffered from loss of range of motion, and used the AMA Guides to evaluate

Claimant's disability.

Employer also asserts that "[n]o evidence was offered to show that the

Claimant's abitity to earn wages at the same level as before the injury was in any

way impaired." And due to the lack of this evidence, the trial court erred when it

awarded PPD benefits.

This issue is not, however, determinative of this appeal. Section 22(3)(d)

does not mandate reliance on such a finding of impaired wage-earning ability

before PPD may be awarded - it simply allows the trial court to use such a finding

in its consideration of the issue. Even without srich a finding, the fiial court had

Dr. Rosson's opinion, based on his examination of Claimant and Claimant's

l0

medical records, that Claimant had a permanent anatomical abnormality to her

back and neck on which the court could base its award of PPD.

One may disagree with Dr. Rosson's conclusion when contrasted with Dr.

Bisson's or Dr. Pettigrew's opinion, but this determination requiring weighing the

evidence is purely within the province of the trial court, and its decision on this

issue will not be disturbed on appeal unless there is no competent evidence on

which to base it. Parks v. Norman Mun. Hosp., 1984 OK 53, tl 12,684 P.2d 548,

552; see also Berg v. Parker Dril l ing Co.,20O4 OK72, fl 14, 98 P.3d 1099, I l0l-

02 (quotingRefrigeratedTransp., rnc.v. creek,l979 oK ll, f l 19,590P.2d197,

200) (The determination of the weight and probative value of evidence, including

medical evidence, is within the exclusive province of the Workers' Compensation

Court "which may accept all or part of the evidence, or reject the evidence

entirely.").

CONCLUSION

We find that the trial court's decision is supported by competent evidence.

The decision of the fiial court is accordingly sustained.

SUSTAINED.

BARNES, P.J., and GOODMAN, J., concur.

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June 1,2009