Permanent Anatomical Abnormality - What Is It?

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 However, two unpublished opinions have addressed the issue.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 A prior unpublished case is reviewed in the Oklahoma Workers' Compensation website; however, certiorari (a request for review) was denied.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. 

BB&B v. Bonat: Return of the 8-Week Limitation for Soft Tissue

The soft tissue provision inserted into the Workers' Compensation Act in 2005 contains a patent ambiguity. Language at the beginning of 85 O.S. §22(3)(d), Soft Tissue, limits temporary total disability compensation ("TTD") for nonsurgical soft tissue injuries to 8 weeks plus a 16 week extension if surgery is recommended. The ambiguity arises when a subsequent section 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 . . .." [Referring to 85 O.S. §22(2) which allows up to 300 weeks of TTD].

Three divisions of the COCA construed the ambiguity by overriding the 8 + 16 limitation and allowing TTD in excess of 24 weeks for nonsurgical soft tissue cases.

In Bed, Bath & Beyond v. Bonat, a 9-0 decision written by Justice Tom Colbert, the Oklahoma Supreme Court addressed the issue and stated "this Court provides this analysis as binding authority for resolution of the ambiguity."

Justice Colbert succinctly stated the Court's conclusions in ¶12:
1. The legislature intended to limit TTD for certain soft tissue injuries;
2. TTD for non-surgical soft tissue injuries is limited to 8 weeks;
3. If surgery is recommended the trial court may extend TTD for up to 16 additional weeks while waiting to perform the surgery; and
4. Since there is no reference to TTD and medical benefits when a soft tissue surgery is performed, §22(2)(c) applies allowing up to 300 weeks of TTD.

In an apparent attempt to limit claimant's TTD to 24 weeks, the employer withheld authorization for surgery until the outcome of the appeals. The Court held "[t]he presence of a soft tissue injury is a medical question to be determined by the Workers' Compensation Court based on competent medical evidence, not on an employer's decision to authorize or refuse to authorize recommended surgery. The claim in this matter is not subject to the soft tissue injury time limitations set forth in section 22(3)(d)."

This holding fits squarely with the doctrine of "extra-statutory forfeiture of benefits" pronounced by the Court in BE&K Construction v. Abbott. Employers will not be allowed to avoid compensating their injured workers through unilateral actions outside the Workers' Compensation Act.

Epidural Steroid Injection Is "Surgical"

Claimant alleged an epidural steroid injection (ESI) was a surgical procedure in the case of Boyce Manor Nursing Home v. Kaylor, COCA, Div IV, Case No. 104,035 (unpublished). The COCA cited with approval, Hartford Accident & Indemnity Co. v. Barfield, 80 S.E.2d 84 (Ga. Ct. App. 1954), in which the Georgia Court of Appeals concluded a myelogram constituted "surgery" in the context of Georgia workers' compensation law.

In Boyce Manor, the Court stated, "An epidural steroid injection is clearly a manual and instrumental operation for relief of suffering. It involves the same type of invasive 'penetration of living tissue,' as the myelogram in the Hartford Accident & Indemnity case. Accordingly, we believe an ordinary person would understand that this invasive procedure is 'surgery' because it is 'performed manually by a surgeon . . . in a sterile aseptic surgical room.' We also believe that an ordinary person would understand that this procedure is 'corrective' because it provides relief from pain, albeit temporarily."

If the reasoning of this case is followed, then it appears that procedures such as ESIs, myelograms, and discograms will be considered "surgical," thus removing the statutory soft tissue limitation on temporary total and permanent partial disability benefits.

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 thinking that might be followed if the question is addressed by the Oklahoma Supreme Court.