Cox v. B.F. Goodrich Co. ( 1989 )

SUPPLEMENTAL OPINION ON REHEARING

The petitioner has filed a Petition for Rehearing requesting “a rehearing” for the following reasons:

“Petitioner would request that this Court publish its Opinion of June 27, 1989. Petitioner would point out to this Court that attorneys for Respondent have in the past at Court accused Petitioner’s attorney of ‘doctor shopping’ in preparation for Trial. It would appear also that Respondent’s attorneys also engage in ... doctor shopping in preparation for Trial.”

What the petitioning claimant is referring to are the following facts:

The employer tested the claimant’s lung function at the plant in April 1986. The resulting values — ^according to the later deposition of the employer’s selected expert, Robert M. Mahaffey, M.D., of Independent Medical Evaluations of Oklahoma, Inc. — placed the claimant’s impairment in a Guides¹ Class III category which has an impairment range of between 30 and 45 percent to the whole body.

After the Goodrich plant tests, the employer sent the claimant to a Roy L. De-Hart, M.D., who, on August 15, 1986, examined the claimant at the doctor’s Independent Medical Evaluations offices. He noted that the claimant’s “cooperation throughout all tests was excellent,” came up with pulmonary function results which he said placed the claimant in a Guides Class II category and gave him a 20 percent impairment rating.

Evidently not satisfied with Dr. DeHart’s evaluation, the employer had the claimant go back to Independent Medical Evaluations on December 5, 1986, to be seen by Dr. Mahaffey. The physician went over everything again, ran some more pulmonary function tests, and issued a report in which — after a “discussion” of certain “studies” of the harmful effects of the various air pollutants inhaled by the claimant at the Goodrich plant throughout the years — he concluded that the claimant had sustained only a “10.0% Permanent Partial Impairment to the whole body.”

It was this report that the employer attached to a Form 10 filed January 26, 1987, and it, in spite of all the other evidence of greater impairment, became the basis for the challenged 10 percent award.

While the circumstances may indeed invite use of the term “doctor shopping,” neither such assessment of the employer’s strategy nor the request that our opinion be published furnishes a premise for granting a rehearing.

We will, however, treat the petitioner’s petition as a motion to publish this opinion and sustain it.

Therefore, the petition for rehearing is denied. The original opinion filed June 27, 1989, and this supplemental opinion are released for publication.

BACON, J., concurs, and RAPP, J., not participating.

1 . A.M.A. Guides to the Evaluation of Permanent Impairment (2d ed. 1984).