Since the major reforms of 2005, workers' compensation practitioners have struggled with the meaning of the Act's new terms. Failure of the legislature to define "permanent anatomical abnormality" may undo the soft tissue limitations on temporary and permanent compensation, the centerpiece of the amendments.
No published cases from the Oklahoma Supreme Court or the Court of Civil Appeals have dealt with the meaning of the term. However, two unpublished opinions have addressed the issue. In the latest case, a well written opinion by Judge Jane P. Wiseman discusses the evidentiary requirements for deciding when permanent disability may be awarded for a nonsurgical soft tissue injury.
In Dept. of Human Services v. Jackson claimant sustained a soft tissue injury to her neck and back in a motor vehicle accident. Five months later she was released by her treating physician after conservative treatment. Claimant's medical report found 18% permanent partial disability to the neck and 17% to the lumbar back. Employer's report found no impairment to either, and the treating physician concluded that "one would not anticipate there to be any permanent impairment." The trial judge awarded 7% to the neck and 9% to the lumbar back.
After conducting a very precise review of the medical evidence, the COCA affirmed the trial court order and ruled that the finding in claimant's hired-medical report of loss of range of motion supported the report's conclusion that claimant sustained a permanent anatomical abnormality.
The employer has time (20 days) to request review by the Supreme Court. If review is granted, a Supreme Court opinion would hopefully settle the issue and answer the question of what is a permanent anatomical abnormality in cases involving nonsurgical soft tissue injuries. A prior unpublished case is reviewed in the Oklahoma Workers' Compensation website; however, certiorari (a request for review) was denied.
Here's the problem! While the reasoning of the Jackson case is impeccable and leads to a logical legal conclusion, it results in a neutering of the core provision of the 2005 amendments that attempted to create TTD and PPD limitations on soft tissue injuries. We all know that every claimant's rating report finds loss of range of motion to injured extremities, spines, hips and shoulders. Consequently, we are back to a pre-2005-reform determination of disability because a trial judge, when provided with a report containing such a finding, can avoid the limitations.
This includes circumventing the 8-week limitation on TTD. Think about it. Claimant receives eight weeks of TTD. Later he returns to work after his medical release at maximum medical improvement. Armed with the Jackson decision he asks for additional TTD because he alleges he has a permanent anatomical abnormality. Remember the language of the statutory exception to the limitation. It states "[i]n all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section, unless there is objective medical evidence of a permanent anatomical abnormality." Therefore, if claimant asserts a permanent anatomical abnormality, he could request and received compensation for his lost time in excess of eight weeks by arguing the limitation on TTD does not apply.
What's the answer? 1) Wait for the Supreme Court to review the Jackson decision; or 2) wait for the legislature to clarify the term by amending the soft tissue provisions of the Act. Either way is a long wait. In the meantime the Jackson ruling will justify overriding the soft tissue limitations.
CAVEAT: this is an unpublished opinion of the Court of Civil Appeals, and it is therefore not to be treated as authority or precedent for the proposition. However, it may be an indication of the reasoning that might be followed if the question is addressed by the Oklahoma Supreme Court.
No published cases from the Oklahoma Supreme Court or the Court of Civil Appeals have dealt with the meaning of the term. However, two unpublished opinions have addressed the issue. In the latest case, a well written opinion by Judge Jane P. Wiseman discusses the evidentiary requirements for deciding when permanent disability may be awarded for a nonsurgical soft tissue injury.
In Dept. of Human Services v. Jackson claimant sustained a soft tissue injury to her neck and back in a motor vehicle accident. Five months later she was released by her treating physician after conservative treatment. Claimant's medical report found 18% permanent partial disability to the neck and 17% to the lumbar back. Employer's report found no impairment to either, and the treating physician concluded that "one would not anticipate there to be any permanent impairment." The trial judge awarded 7% to the neck and 9% to the lumbar back.
After conducting a very precise review of the medical evidence, the COCA affirmed the trial court order and ruled that the finding in claimant's hired-medical report of loss of range of motion supported the report's conclusion that claimant sustained a permanent anatomical abnormality.
The employer has time (20 days) to request review by the Supreme Court. If review is granted, a Supreme Court opinion would hopefully settle the issue and answer the question of what is a permanent anatomical abnormality in cases involving nonsurgical soft tissue injuries. A prior unpublished case is reviewed in the Oklahoma Workers' Compensation website; however, certiorari (a request for review) was denied.
Here's the problem! While the reasoning of the Jackson case is impeccable and leads to a logical legal conclusion, it results in a neutering of the core provision of the 2005 amendments that attempted to create TTD and PPD limitations on soft tissue injuries. We all know that every claimant's rating report finds loss of range of motion to injured extremities, spines, hips and shoulders. Consequently, we are back to a pre-2005-reform determination of disability because a trial judge, when provided with a report containing such a finding, can avoid the limitations.
This includes circumventing the 8-week limitation on TTD. Think about it. Claimant receives eight weeks of TTD. Later he returns to work after his medical release at maximum medical improvement. Armed with the Jackson decision he asks for additional TTD because he alleges he has a permanent anatomical abnormality. Remember the language of the statutory exception to the limitation. It states "[i]n all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section, unless there is objective medical evidence of a permanent anatomical abnormality." Therefore, if claimant asserts a permanent anatomical abnormality, he could request and received compensation for his lost time in excess of eight weeks by arguing the limitation on TTD does not apply.
What's the answer? 1) Wait for the Supreme Court to review the Jackson decision; or 2) wait for the legislature to clarify the term by amending the soft tissue provisions of the Act. Either way is a long wait. In the meantime the Jackson ruling will justify overriding the soft tissue limitations.
CAVEAT: this is an unpublished opinion of the Court of Civil Appeals, and it is therefore not to be treated as authority or precedent for the proposition. However, it may be an indication of the reasoning that might be followed if the question is addressed by the Oklahoma Supreme Court.
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