City of Frederick v. Elmore , 1978 Okla. LEXIS 436 ( 1978 )

DOOLIN, Justice:

This proceeding for review presents two issues. First, is the State Industrial Court authorized to order further medical treatment when awarding compensation for permanent partial disability? Secondly, did State Industrial Court commutation of total award to lump sum payment constitute abuse of discretion?

There is no controversy concerning facts of accidental injury and resulting disability. Claimant sustained a heart attack in. August 1975, while working and was placed in the intensive care for five days, and returned home. A further attack while sleeping necessitated his removal to Oklahoma City for hospitalization and eventual open heart surgery. Claimant returned to light work but was unable to perform without difficulty and was forced to quit work upon the advice of the heart specialists. As result of injury claimant was unable to perform anything requiring minimal exertion. He sometimes suffers severe chest pains just sitting at home, and remains under strict regimen of a variety of medication. The heart surgeon had advised claimant there was possibility further heart surgery would be necessary.

A trial judge’s corrected order found claimant sustained accidental injury due to heart attack during covered employment; temporary total compensation had been paid (62 weeks), and claimant had sustained 80% permanent partial disability due to accidental injury. Upon en banc appeal State Industrial Court modified this order:

“That respondent and insurance carrier are ordered to provide claimant with continuing medical treatment; that claimant was temporarily totally disabled from August 21, 1975 to October 13, 1975 and April 30, 1976 to October 29, 1976, for which time he is entitled to compensation for 83½ weeks, in the total amount of $2,010.00; that claimant’s permanent partial disability remains at 80% to the body as a whole.”

The order then was affirmed as modified.

Petitioners, hereafter respondents, first contend the State Industrial Court erred in ordering respondents to provide claimant with continuing medical care. Two grounds of argument are advanced. The first urges claimant did not appeal the trial judge’s order, as provided by 85 O.S.1971 § 77, or within requirements of State Industrial Court Rule 17. And, sections 29 and 77 of the Act, declare orders and awards of that court became final absent timely appeal. Therefore, claimant’s failure to appeal finalized the trial judge’s order and State Industrial Court en banc was without jurisdiction to consider the unappealed question. Therefore the order for continuing medical treatment was void.

Authorities offered to support this conclusion are inapplicable. The Act, supra, § 77(9) authorizes appeals from a trial judge’s order to State Industrial Court en banc:

“ * * * Upon the filing of such appeal, the entire Commission, or a majority thereof, sitting as a body shall hear such appeal, and upon completion thereof shall issue such order, decision or award as it may deem proper, just and equitable. * * *

This provision has been construed and applied innumerable times since amended, S.L.1939, Sec. 2, Art. 2, Ch. 72. In Amerada Petroleum Corporation v. Hester, 188 Okl. 394, 109 P.2d 820 (1941), it was pointed out an en banc appeal contemplates hearing on questions of law and fact, or mixed questions of law and fact, to be determined on the record made before the trial judge. In Edmonds v. Skelly Oil Co., 204 Okl. 471, 231 P.2d 360 (1951), we held duty of State Industrial Court on appeal is to make a new and independent order, or award based upon the record. That court en banc must review the record and enter such order as is deemed proper, just and equitable. Reid v. Phillips Petroleum Co., 531 P.2d 340 (Okl.1975); Bell v. J. H. Rose Trucking Co., 452 P.2d 141 (Okl.1969).

Respondents’ second ground of argument insists State Industrial Court lacked authority to award permanent partial disability benefits and simultaneously order continuing medical treatment. Respondents argue the principle of our decision in Orrick Stone Company v. Jeffries, 488 P.2d 1243 (Okl.1971). However, respondents attempt to distinguish between that decision and the present case in that Jeffries involved permanent total disability, whereas this case concerns permanent partial disability. Further, they argue no legislative revision has expanded benefits extended under the Act since the Jeffries decision. To affirm this order, which awards continuing medical treatment, would invoke the legislative function by retroactively doing what the Legislature did not see fit to do.

This argument does not require extended discussion. Nothing contained in reasoning presented in Jeffries offers basis for claiming future medical care can be awarded only for permanent total disability. Prior to Jeffries, the rule set out in Oklahoma Planning and Resources Board v. Herren, 341 P.2d 599 (Okl.1959), was that award for future medical expenses could not be made along with an award for permanent partial disability. In Jeffries the Herren decision specifically was overruled, and attention was directed to McMurtry Brothers v. Angelo, 139 Okl. 236, 281 P. 964 (1929). This case held full payment of permanent partial disability compensation did not preclude an order for respondents to pay expense of further medical treatment.

No provision of the Act or any expression in our decisions, supports respondents’ claim that further medical treatment cannot be ordered following award for permanent partial disability. To the contrary, reasoning expressed in Jeffries indicates an order for further medical treatment may properly be entered after court determinations of reasonableness and necessity. Under section 14 of the Act, an employer must furnish medical care beyond 60 days following injury if, within the court’s judgment this is required. The Jeffries decision quoted from Angelo in respect to required medical care: “ * * * as will reasonably and seasonably tend to relieve and cure the injured employee from the effects of the injury. * * * ft

The evidence showed extensive medication was necessary to maintain claimant, further medical supervision was needed, and further surgery was a possibility. Under these circumstances the order for continuing medical care, after award of compensation for permanent partial disability, was proper under requirements of the statute.

The second proposition urges commutation of the award to a lump sum constituted an abuse of discretion. Respondents insist evidence discloses a combination of factors which shows a grave physical condition establishing a bad prognosis. This creates an inference claimant is unlikely to live out the term of this award, and in interest of justice this order should be set aside and compensation be paid weekly. Although no evidence intimated death was impending, the inference created should bring review of this order within rules stated in Kerr's, Inc. v. Smith, 359 P.2d 330 (Okl.1961) and Garvin County v. Douglas, 394 P.2d 469 (Okl.1964).

These decisions are inapplicable to the matter reviewed. In the Smith case evidence affirmatively showed commutation was ordered either on day of death or the prior day, in an effort to defeat the rule then effective, that an award abated upon a claimant’s death. A commutation order was vacated in the Douglas case, for failure to accord due process because respondent had been denied the right to introduce evidence of the claimant’s life expectancy. Also see Independent School District No. 1 of Tulsa County v. Albus, 572 P.2d 554 (Okl.1977) requiring proper application for commutation.

Herein respondents offered no evidence bearing upon this matter, although there was opportunity to do this. We have held certainty of death cannot be equated with impending death because of a claimant’s incurable malady, absent some specific declaration as to probable time. Fox-Smythe Transportation Company v. McCartney, 510 P.2d 686 (Okl.1973). State Industrial Court’s commutation of award for permanent partial disability to lump sum did not constitute an abuse of discretion under the record.

ORDER SUSTAINED.

HODGES, C. J., and WILLIAMS, SIMMS and HARGRAVE, JJ., concur. LAVENDER, V. C. J., and IRWIN, BARNES and OP ALA, JJ., dissent.