Cozart v. Special Indemnity Fund

MEMORANDUM OPINION ADAMS, Judge. ¶ 1 After a 1993 injury to his back, legs, hips and shoulders which resulted in a determination of fifty per cent permanent partial disability to his body as a whole, Claimant Don Cozart filed a claim for benefits for permanent total disability or in the alternative material increase against the Special Indemnity Fund (Fund). Claimant alleged that he was a “physically impaired” person at the time of his 1993 injury by reason of two prior adjudicated injuries to his left foot and back and an “obvious and apparent” disability to his back manifested by a limp in his right leg. After trial, the trial court entered an order which combined only the two adjudicated injuries with the 1993 injury, found a nine per cent material increase as a result of the combination, found Claimant was not permanently totally disabled, and awarded benefits based upon the material increase. The order was silent concerning Claimant’s alleged prior obvious and apparent back disability. ¶ 2 Claimant sought appellate review of that order. Another division of this Court vacated that order and remanded the case, directing the trial court to make appropriate findings concerning the existence or nonexistence of the allegedly obvious and apparent back disability and consider the effect of that disability if the trial court determined it existed. On remand, the trial court made a specific,finding that no obvious and apparent disability existed at the time of the 1993 178 injury as argued by Claimant, and entered the same award as before. ¶ 3 In this review proceeding, Claimant challenges that order on two grounds. First, he argues that the trial court's order finding that he did not have, at the time of his 1993 injury, an obvious and apparent disability to his back, as manifested by a right leg limp, is not supported by any competent evidence. Second, he argues that the finding of no permanent total disability is similarly unsupported by any competent evidence. We address the issues in that order. OBVIOUS AND APPARENT DISABILITY ¶ 4 At the outset, we must note that our standard of review on this issue is not the “any competent evidence” standard. Whether a workers’ compensation claimant is a physically impaired person within the meaning of the Workers’ Compensation Act presents a fact question to be determined from all the evidence. Special Indemnity Fund v. Osborne, 1954 OK 191, 272 P.2d 392. We are required to make an independent review of facts to determine whether a claimant is a physically impaired person as defined in 85 O.S.Supp.1993 § 171. Special Indemnity Fund v. Estill, 1997 OK 99, 943 P.2d 606. ¶ 5 Under 85 O.S.1991 § 171, Claimant’s preexisting back disability, which arose out of a 1979 injury which necessitated back surgery, might arguably be used in his claim against Fund if it resulted in the loss of the use or partial use of a member such as is “obvious and apparent from observation or examination by an ordinary layman.”1 In Special Indemnity Fund v. Scott, 1982 OK 110, ¶ 11, 652 P.2d 278, 280, the Court held as follows: A previous unadjudicated impairment may be established either by lay or medical testimony. Special Indemnity Fund v. Roberts, 356 P.2d 561, 563 (Okl.1960). The requirement that the impairment be obvious and apparent to a layman is established (1) when the condition itself is obvious and apparent or (2) when the condition is manifested by constant, everyday conduct or movement which demonstrates a pronounced physical defect or impairment. (Emphasis added.) ¶ 6 Claimant essentially argues the evidence in this record requires a finding that he had an obvious and apparent partial loss of use of his back because his testimony and that of a long time friend that he limped after the 1979 injury is not directly refuted by any evidence from Fund. This argument overlooks Claimant’s burden of proof on this issue, and the importance of the trial court’s role in assessing credibility. Claimant testified that he limped “a little” after the 1979 back surgery but that his limp dramatically increased after the 1993 injury. He offered no evidence concerning how pronounced his limp was immediately prior to the 1993 injury. His friend testified that he had known Claimant for over twenty years and that he had a limp after the 1979 surgery and just never “quite recovered.” The friend did not testify concerning how pronounced Claimant’s limp was after that surgery or the extent of Claimant’s limp at the time of the 1993 injury. The pronounced nature of the limp has more significance in this case because of Claimant’s allegation that the limp was a manifestation of the loss of use of another part of his body, his back. ¶ 7 The dissent contends that even if the presence of an obvious and apparent disability was not established precisely by the evidence, such an inference could reasonably be drawn. Therefore, according to the dissent, we are required to draw that inference because “the claimant’s evidence must be liberally construed in [his] favor because [he] was entitled to all reasonable inferences which could be drawn from the evidence,” citing Phillips Petroleum Company v. Carter, 1995 OK CIV APP 138, 914 P.2d 677. 179 ¶ 8 We reject such a concept which tilts the scale of justice in Claimant's favor. Phillips, even if it were binding precedent, does not establish such a broad rule.2 It held only that a claimant’s evidence concerning the necessity of certain medical equipment is entitled to such a preferential view. Moreover, Phillips cited no Oklahoma authority for such a proposition. Nor is such a preferential treatment of Claimant’s evidence authorized by the general rule that the Workers’ Compensation Act is to be construed liberally in favor of the Claimant, as suggested by the dissent. This rule governs interpretations of the statutory language which governs workers’ compensation claims. Since the Legislature specifically removed all evidentiary presumptions which previously existed under our prior workers’ compensation law, neither side of these cases is generally entitled to have the evidence viewed with any bias in its favor. ¶ 9 Based on our independent review of the evidence and considering the trial court’s superior opportunity to evaluate the credibility of the witnesses, we conclude Claimant did not sustain his burden of demonstrating that prior to the 1993 injury, his limp constituted a “constant, everyday conduct or movement which demonstrate[d] a pronounced physical defect or impairment” as required by Special Indemnity Fund v. Scott, 1982 OK 110 at ¶ 11, 652 P.2d at 280.3 PERMANENT TOTAL DISABILITY ¶ 10 Claimant argues that because his evidence established he cannot work, the trial court’s finding that he was not permanently totally disabled is unsupported by any competent evidence. The trial court received medical evidence from Fund which, if believed, established that Claimant was not totally disabled as that term is used in our statutes. Claimant has not demonstrated how that evidence was not competent. The trial court’s finding that Claimant was not permanently totally disabled is supported by competent evidence, and we may not disturb it. CONCLUSION ¶ 11 As to the issue for which it is required, our independent review of the evidence leads us to the same conclusion reached by the trial court, i.e., that Claimant’s alleged back disability was not obvious and apparent prior to the 1993 injury. The trial court’s order is otherwise supported by competent evidence and is not contrary to law. The trial court’s order is sustained. SUSTAINED BUETTNER, P.J., concurs. HANSEN, J., dissents with separate opinion. Footnotes [1] Because we sustain the trial court's determination that there was no obvious and apparent disability or loss of use, we need not consider whether the trial court should have considered only the impairment to the leg, a member, as a result of the back injury or the impairment to the body as a whole as result of the back injury, inasmuch as the back may not be a member. See Special Indemnity Fund v. Figgins, 1992 OK 59, 831 P.2d 1379. [2] Apparently, the dissent attaches some significance to the fact that the Oklahoma Supreme Court denied certiorari in Phillips. That denial does not indicate approval of the holding. [3] Claimant’s brief may be read to also argue that the trial court erred in not making specific findings concerning the "nature and extent of the 1979 non-adjudicated injury.” Such a finding was superfluous once the trial court found there was no obvious and apparent disability from that injury in 1993, and we need not consider that argument.