Williams Companies v. Dunkelgod

KAUGER, J.,

concurring in part and dissenting in part:

T 1 I agree with the majority that the law as it stands on the date of injury is the appropriate law to use for determining TTD benefits. I also agree with the majority that the law in effect at the time of injury determines the standard of review, The Court of Civil Appeals erred by applying a clear weight of the evidence standard to the trial court's evaluation of Claimant's request that Williams Companies, Inc. be required to provide Claimant with a van for transportation. However, I dissent because under any standard, including the proper standard of any competent evidence, claimant is not entitled to a van because no competent evidence was presented that it is medically necessary. Additionally, it appears inappropriate under the facts for Claimant to be operating a motor vehicle of any kind.

I. The Proper Standard of Review Is Any Competent Evidence and the Statute in Effect at the Time of Claimant's Injury did not Limit TTD Benefits to 300 Weeks.

T2 The majority is correct that the standard of review applicable to a workers' compensation appeal is that which is in effect when the claim acerues, notwithstanding the Legislature's attempt to alter this standard. At the time of Claimant's injury on June 11, 2001, the standard of review required for review of factual determinations by a three-judge panel of the Worker's Compensation Court was one of any competent evidence.1 The legislature enacted the new Workers' Compensation Code, 85 0.8.2011, §§ 301-413 on August 26, 2011. The new version of §$ 340, concerning appeals, provides for an against the clear weight of the evidence standard of review without regard for the date of the injury, with the intent that an against the clear weight of the evidence standard of review will apply to every appeal filed after August 26, 2011.2

*111713 The Legislature's attempt to apply a clear weight of the evidence standard of review for all appeals from the Worker's Compensation Court is invalid. The Oklahoma Constitution protects the right to pursue causes of action that have already accrued, or when suit has been commenced, from being terminated by legislative action. - Okla. Const., art. 5, § 52 provides that:

The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.

Okla. Const., art. 5, § 54 provides that:

The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.

In worker's compensation cases, the date a claim accrues is the date of the injury suffered by the claimant.3 In King Manufacturing v. Meadows, 2005 OK 78, 127 P.3d 584, we held that:

The general rule is that the law in effect at the time of an employee's injury controls in workers' compensation matters. A compensation claim is controlled by the laws in existence at the time of injury and not by laws enacted thereafter. The right of an employee to compensation arises from the contractual relationship existing between the employee and the employer on the date of injury. The statutes then in force form a part of the contract and determine the substantive rights and obligations of the parties. No subsequent amendment can operate retrospectively to affect in any way the rights and obligations which are fixed.4

1 4 When construing the November 1, 2010 amendment to 85 0.8. § 8.6, this Court previously held that the standard of review a claim is subject to on appeal is a substantive right determined by the law in effect on the date of the injury, and where the injury occurred before the amendment to the statute, the traditional standard of any competent evidence applied.5 While this case concerns the new code section on appeal, 85 0.98.2011 § 340, the same logic applies. The legislature may not alter the standard of review for a claim by statute after that claim has accrued, because the standard of review is a substantive right which is unaffected by later-enacted legislation, regardless of the intent of the legislature, and is protected by the Oklahoma Constitution.6

T5 For similar reasons, the Court of Appeals erred in determining that Claimant was limited to a maximum of 300 weeks of TTD benefits, The statute in effect at the time of Claimant's injury, 85 0.8.2001 § 22(2)(c), contained no limit on TTD as long as good cause was shown for extending benefits beyond the statutory limit of 156 weeks.7 Good cause was shown at the time of the award on July 12, 2010, and so there was no statutory cap on the number of weeks Claimant could be awarded TTD benefits: applying the 2005 statute would be inappropriate for the reasons discussed above, because the law was changed after the occurrence of Claimant's *1118injuries and therefore after her claim accrued.

II. Claimant is not Entitled to a Van Because No Competent Evidence Was Presented That it is Medically Necessary.

T6 I dissent, however, to the award of a lift van to the Claimant because no competent evidence was presented that a van is medically necessary. In order for an employer to be required to provide medical apparatus, the apparatus must be necessary.8 Not only is the Claimant in this case capable of walking, no competent evidence has been presented that a van is. in some way essential to her recovery. The statements of Dr. Capehart, one of Claimant's treating physicians, indicate that he believed a lift vehicle "would be appropriate in order to give [Claimant] some degree of independence" and the trial court, in its July, 2010, order noted that Dr. Capehart "recommends transportation assistance to improve claimant's mobility, independence and ultimate psychological recovery/stability." The Court of Appeals correctly indicated that Claimant has not been found to have a compensable psychological overlay. The rest of Dr. Cape-hart's points indicate that he believes a van would be appropriate to give the plaintiff some independence, but no evidence has been presented to link the claimant's independence and ability to go get ice cream whenever she wants to any kind of medical necessity related to her injuries.

T7 Another of Claimant's treating physicians, Dr. James Rodgers, stated in his deposition that he doesn't know that claimant needs a van. When asked if a van or even a car with a big seat would be medically necessary for claimant, Dr. Rodgers responded:

I don't know. I just don't know. I'm not sure I have the information to know whether that's even-why it's even being considered in her case. I've got vans being considered in paralyzed spinal cord injury patients, but she looks better now to me in the last three visits than before.9

Dr. Rodgers noted that generally, vans are medically necessary for patients that require hand controls in place of pedals because they are unable to operate a normal vehicle. When asked if he knew of any medical reason why Claimant would need the van, Dr. Rodgers could only say "I'm trying to not answer. I'm trying to say I don't have the answer."10 That testimony from Dr. Rogers can hardly be considered competent evidence that providing Claimant with a van is medically necessary.

T 8 On further examination, when Dr. Rogers was asked if he believed claimant being able to get out of the house more and be social would be beneficial to her, Dr. Rogers responded that it would.11 Something that is beneficial or that might be good for Claimant's independence is being confused with something that is medically necessary. They are not the same thing. Dr. Rogers admitted that he could see the reasoning behind a lift van when it came to transporting the Claimant's seooter to places like the 200, and when the climate is less than ideal such as when it is 110 degrees or icy, but that still provides no link to a lift van itself being medically necessary to Claimant's recovery.

T9 When asked if there were things she would like to be able to get out and do, Claimant responded:

Sometimes, you know, if I want to run to Braum's and get an ice cream Sunday, or something like that, during the day, well, I can't do it. I have to wait until, you know, my sister is available, or maybe later when mom gets home, but she's always so tired that she can't-usually can't take me to get one, so I don't get one.12

There is no reason Claimant would even need her seooter, let alone a lift van to carry it, for *1119a trip to a place such as Braum's. She would never need to leave a vehicle if she went through the drive-through. Even if she wanted to get out of the car, she is fully capable of walking for short periods of time and Dr. Rodgers mentions specifically that her becoming dependent on the scooter would be bad for her.13 It appears that Claimant believes her former employer should be required to replace her broken vehicle, not because a lift van is medically necessary to her recovery, but simply so that she has a vehicle to go where she wants, when she wants, and cannot afford one herself,14

"110 When offered the use of a service to come and pick her up when she needed to go someplace, Claimant objected because of the tight quarters she would be forced to share with strangers due to germs and because it would not give her the independence she desires.15 In her deposition, Claimant had the following conversation:

Q: Do you care if they provide you with some service to come by to pick you up?
A: Yes, I do.
Q: Why is that?
A: A) because of the strangers, B) because I'm susceptible to all germs and sicknesses, and if people have them, and it's in tight quarters, then I would catch it. 16

Evidence was not presented that a lift van, rather than some other form of transportation such as a service, was medically necessary to Claimant's recovery; she simply appears to prefer that option. When reminded that she would also have to be around others and their germs when going to Braum's for ice cream, Claimant responded "but it's not sitting on germs, and doing all this stuff" 17

1 11 While no competent evidence was presented that providing Claimant with a lift van was medically necessary, it does appear from the evidence presented that there is a valid question as to whether Claimant should be operating a motor vehicle of any kind. Claimant stated that she takes several different medications on a daily basis: Oxycontin, Soma, Mobic, Klonopin, Hydrocodone, Baclo-fen, Neurontin, Effexor, Lunesta, Trazodone, a generic version of Senna, and Relistor.18 When Claimant renewed her driver's license several months before her deposition, she did not take a driving test, and did not inform them that she was taking over 10 different medications, including Oxycontin and Hydro-codone.19 Claimant's attorney pointed out that certain medications recommend against driving while they are being taken, but that others in Claimant's family would be able to drive the van if she was on certain medications that day. Not only does Claimant take these medications every day, but having to rely on other family members for transport seems to be what Claimant wishes to avoid by getting the van in the first place. If other family members will have to drive it because she is under the influence of her medications, then what is the point in awarding it?

112 Claimant's dependence on medication is something that appears to be unlikely to change in the near future. Dr. Rodgers stated he believed that "she'll always be on some-she'll always be on a sizeable amount of medication. I think the chance of her being off all the nareoties that she's on is less than one percent that she'll be off of them." 20 *1120He elaborated further on the problems faced by someone taking the amount of medication Claimant is taking:

[There's a price for being able to drive, and that's taking half of the medication and half the narcotics she's taking. We can do anything as a bonus prize because if you reduced her in half of what she's taking now, she won't have any sedative ef-feets from the narcotics And after you take narcotics for a period of time-if we took six pills today, we'd both be asleep, but if we take six pills every day for a month, we probably are not going to have any sedation problems. We'll probably have some sleep problems, getting to sleep is where you have problems if you're on narcotics for a while. So she is bright and wake [sic] when I see her. There's no question her reaction time-moving rapidly is not as good when you're on the medications she's on.21

1 13 No competent evidence was presented that providing Claimant with a lift van was medically necessary, but evidence was presented that perhaps allowing Claimant to drive at all was not in the best interests of her or the public. Claimant's desire for independence and greater freedom of movement does not mean she is entitled to a free vehicle at the expense of her former employer. I agree with the majority that the law as it stands on the date of injury is the appropriate law to use for determining the amount of TTD benefits a claimant is entitled to. Further, I agree with the majority's holding that the proper standard of review of the medical necessity of providing Claimant with a lift van is whether there was any competent evidence rather than the clear weight of the evidence. However, Claimant fails to meet the burden in this case under any standard of review. Accordingly, I respectfully dissent regarding the award of a lift van to Claimant.

. Parks v. Norman Municipal Hosp., 1984 OK 53, 12, 684 P.2d 548. ("[While the three-judge panel is governed, in its re-examination of the trial judge's factual findings, by the clear-weight-of-the-evidence standard, the Supreme Court or the Court of Appeals, in reviewing the panel-altered factual determinations, must apply the any-competent-evidence test.")

. Title 85 0.S.2011 § 340(D) provides in pertinent part:

After the effective date of this act, regardless of the date of injury, the Supreme Court may modify, reverse, remand for rehearing, or set aside the *1117order or award upon any of the following grounds:
1. The Court acted without or in excess of its powers;
2. The order or award was contrary to law;
3. The order or award was procured by fraud; or
4. The order or award was against the clear weight of the evidence.

. King Manufacturing v. Meadows, 2005 OK 78, ¶ 11, 127 P.3d 584

. King Manufacturing v. Meadows, note 3, supra. (footnotes omitted).

. Nomac Drilling LLC v. Mowdy, 2012 OK 45, 18, 277 P.3d 1282; Dunlap v. The Multiple Injury Trust Fund, 2011 OK 14, ¶ 1, 249 P.3d 951.

. Okla. Const., art. 5, § 52; Okla. Const., art. 5, § 54.

. Title 85 0.$8.2001 § 22(2)(c) provides:

injuries occurring on or after November 1, 1997, total payments of compensation for temporary total disability may not exceed a maximum of one hundred fifty-six (156) weeks in the aggregate except for good cause shown, as determined by the Court.

. - Zwahlen v. B.F. Goodrich, 1988 OK 54, 14, 755 P.2d 658.

. Deposition of Dr. James Rodgers, January 14, 2010, at 19.

. Deposition of Dr. James Rodgers, January 14, 2010, at 19.

. Deposition of Dr. James Rodgers, January 14, 2010, at 23.

. Deposition of Kristy Dunkelgod, January 4, 2010, at 18. i

. Deposition of Dr. James Rodgers, January 14, 2010, at 23.

. Deposition of Kristy Dunkelgod, January 4, 2010, at 18.

. Deposition of Kristy Dunkelgod, January 4, 2010, at 20. Claimant appears to be completely opposed to the kind of contact with strangers that is the norm for the residents of many major U.S. cities who use public transportation on a daily basis to commute to and from their place of employment and to go about their lives.

. Deposition of Kristy Dunkelgod, January 4, 2010, at 19-20.

. Deposition of Kristy Dunkelgod, January 4, 2010, at 34.

. Deposition of Kristy Dunkelgod, January 4, 2010, at 16.

. Deposition of Kristy Dunkelgod, January 4, 2010, at 24.

. Deposition of Dr. James Rodgers, January 14, 2010, at 23.

. Deposition of Dr. James Rodgers, January 14, 2010, at 18.