FILED

- 1 ?009
JUN
NOT FOR OFFICIAL PUBLICATION WORKERS'
COURT
COMPENSATION

IN THE COURT OF CIVL APPEALS OF THE STATE OF OKLAHOMA

DIVISION II
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OKLAHOMA DEPARTMENT luN- reiie
OF HUMAN SERVICES,and /r4rcffAsf
OKLAHOMA,
COMPSOI.JRCE S;.R;
OAbFi;
Petitioners, w.c.c. {f 2007-Lo645K

vs. CaseNo. 105,926

CHARLOTTE JACKSON, and THE

WORKERS' COMPENSATION
COURT,

Respondents.

PROCEEDINGTO REVIEWAN ORDEROF

THE WORKERS'COMPENSATIONCOURT

HONORABLEMICHAEL J. HARKEY,TRIAL ruDGE

SUSTAINED

MargaretA. Bomhoff
FELLERS, SNIDER, BLANKENSHIP,
BAILEY & TIPPENS,P.C.
Oklahoma City, Oklahoma For Petitioners

Brandon J. Burton
T.R. Banks
BURTON & ASSOCIATES,P.C.
Oklahoma City, Oklahoma For Respondents
OPINION BY JANE P. WISEMAN, VICE CHIEF JUDGE:

OklahomaDepartmentof Human Services(DHS) and Compsource

Oklahoma(collectively, Employer) seekreview of an order of the Workers'

CompensationCourt awardingCharlotteJackson(Claimant)permanentpartial

disability (PPD) benefits for an injury to her neck and lumbar back. The issueon

appealis whether there is competentevidenceto supportthe trial court's findings

that Claimant sustainedpermanentimpairments. We find that the trial court's

decisionis supportedby competentevidenceand sustainits order.

FACTS AND PROCEDURAL BACKGROUND

Claimant filed a Form 3 on September12,2007, claiming she sustained

injury to her neck and left shoulderduring a motor vehicle accident. Employer did

not disputethat Claimant zuffereda work-relatedinjury. On November 15,2007,

Claimant filed anotherForm 3 in which she claimed an injury to her back arising

out of the sameaccident.

At the trial held on May 13,2008,Employerdeniedthat Claimantwas

perrnanentlydisabled. Claimant testifiedthat on August 18,2007, shewent "on an

errandto get pizza for the team, and on the way back [she] was rear-endedat a red

lighL" Claimant testified shewas seenat the "Baptist EmergencyRoom" on the

day of the accidentor the day after. Shewent to seeDr. Michael Chiaffitelli within

2
a week or two of the accident. Shewas releasedto go back to work in October

2007,but after shewent back to work, shecontinuedto have problems.

Claimantsaw Dr. A.J. Bissonon November19,2007,and he orderedMRI

'ohe
testing on her back and neck. After Dr. Bisson reviewedthe MRI results,

basically determinedtherewas not much in the way of treatmenthe could do for

[her] from.that"timeon, otherthan home exercises."Dr. BissonreleasedClaimant

from his careon January18, 2008.

At the time of fiial, Claimant testified that the only medicationshewas

taking for her injury was over-the-counterTylenol. She claimedthat she was still

having problemswith her neck and back. Shetestified that shehaspain in her

neck everyday. She also haspain in her left shoulderand low back and she cannot

sit for long periodsor lie down without thesebody parts botheringher. Shealso

testified that climbing stairshurts and sheis unableto do householdchoresbecause

of the pain. When askedif shewas ever pain free in her low back, Claimant

responded,'oNotoften." During cross-examination;Claimant admittedthat she

doesnot have any restrictionsat work, she still works full time, and shehasnot had

any reductionin her paY.

 At the conclusionof testimony,Claimant offered Dr. Lance Rosson'sreport

into evidence. When askedif therewere any objections,Employer's attorney

statedthe following:

Your HonornI have an objectionregardingthe rating,

both the neck and the back rating. The back has 5
percentsoft tissuerating, and there's a 4 percentrating
for soft tissuefor the neck. I don't think there's any
evidenceof any objective and permanentanatomical
abnormality. Dr. Rossonsaysthere is, but he doesn't tell
us what that is exactly. And basedupon the MRI's, I
don't think it supportsa finding of permanentdisability'

The court statedthat it would take Employer's objectioninto consideration.The

court went on to state:

I'm not surethat the Guides give a percentageof

impairmentfor "soft tissue" injury, but I'll have to
considerwhetherthe rangeof motion is an anatomical
abnormality. I don't know. I'll considerit one way or
the other. But I'll think about your probativevalue
objection. I appreciateyour comments,but otherwise
overnrled and it will be admittedas Claimant's Exhibit 1.

Dr. Rossonperformedrangeof motion testingon Claimant'sback which

producedthe following results: (1) true lumbar flexion to 40 degrees,(2) true

lumbar extensionto l5 degrees,(3) right lateral flexion to 15 degrees,(a) left

lateral flexion to l5 degrees,(5) straightleg raising is positive at 65 degreeson the

right and 65 degreeson the left. The range of motion testingon Claimant's neck

4
producedthe following results: (l) flexion to 40 degrees,(2) extensionto 40

degrees,(3) right lateral flexion to 30 degrees,(4) left lateral flexion to 30 degrees,

(5) right rotation to 60 degrees,(6) left rotation to 50 degrees.As to both setsof

were obtainedby
. range of motion tests,Dr. Rossonstated,"These measurements

dual inclinometerand they satisfythe validity criteria for rangeof motion

measurements. . . in accordancewith the AMA Guidelines."

Dr. Rossonopined that Claimant had sustainedan lsYopermanentpartial

'obasedupon
impairmentto the body as a whole as a result of the injury to her back

due to soft tissueinjury, and2o/o

l l% due to range of motion abnormalitres,5%o

due to residualneurosensoryinjury." Additionally, Dr. Rossonfound that

Claimant sustaineda lTYopennanentpartial impairment to the whole personfrom

o'basedupon 8% due to range
the injury to her neck. Dr. Rosson'scalculationwas

of motion abnormalities,4Yodue to soft tissueinjury, and 5Vodue to residual

neurosensoryinjury."

Employerpresentedthe reportof C.B. Pettigrew,D.O., in which he gavethe

opinion that "[Claimant] has sustainedno permanentpartial impairment" and

oosustained
no anatomicalabnormalityto the cervical,thoracic,or lumbar spine,or

left shoulderas a result" of her work-relatedaccident. In his evaluation,Dr.

Pettigrewperformed rangeof motion tests,the resultsof which differed in many

areasfrom the testsperformedby Dr. Rosson.

Employer also submittedthe medical report of Dr. A.J. Bisson,which

indicatedthat Claimant's cervical and lumbar strainshad resolvedand that shehad

reachedmaximum medical improvement. Dr. Bisson stated,"[s]he can partakein

fulIduty work activities. I would not anticipatethereto be a need for any type of

work restrictionsto be placedupon her, particularly grventhe findings of her MRI

studies. Additionally, one would not anticipatethereto be any permanent

impairment."

The trial court found Claimant sustainedan accidentalpersonalinjury to her

neck and lumbar back arising out of and in the courseof her employmentwith

DHS, and that she was paid temporarytotal disability benefitsfrom August 24-28,

2007, and Septemberl8 through October 28,2007. The court found that Claimant

..sustained7 percent
IPPD] to the NECK (permanentanatomicalabnormality)and

9 percentIPPDI to the LUMBAR BACK (permanentanatomicalabnormality),for

which Claimant is entitled to eompensationfor 80 weeks."

Employer appeals.
 STANDARD OF REVIEW

We may not disturb atialcourt's non-jurisdictionalfindings if supportedby

proof. Lanrnanv. OklahomaCountySheriff'sOffice,1998OK 37,n 6,

competent

9 5 8P . 2 d7 9 5 , 7 9 8 .

ANALYSIS

On appealEmployer contendsthat the trial court's award of PPD is not

supportedby objective medical evidence. Employer claims that the MRI report

offered by Claimant doesnot supportan award of PPD. The MRI report

introducedby Claimant statedthat the MRI of the lumbar spine is

"[u]nremarkable." Employer claimsthat Dr. Rosson'sreport doesnot even

indicatethat he reviewedeither of the reportsof the MRIs performedon Claimant.

Employer contendsthat this meansthat Dr. Rosson'sfinding ofpermanent

impairmentis not supportedby competentevidence. Employer additionally

contendsthat Claimant is not entitledto PPD for a soft tissueinjury.

Title 85 O.S. Supp.2008 $ 22(3Xd)provides,in parto

Soft TissueInjury: In caseof a nonsurgicalsoft tissue

injury, temporarytotal compensationshall not exceed
eight (8) weeks. A claimant who has beenrecommended
by a treatingphysicianfor surgeryfor a soft tissueinjury
may petition the Court for one extensionof temporary
total compensationand the court may order such an
extension,not to exceedsixteen(16) additionalweeks,if
 the treating physician indicates that such an extension is
appropriateor as agreedto by all parties. In the event the
surgeryis not performed,the benefits for the extension
period shall be terminated. For purposesof this section,
"soft tissueinjury" meansdamageto one or more of the
tissuesthat surroundbonesand joints. "Soft tissue
injury" includes,but is not limited to: sprains,strains,
contusions,tendonitis,and muscletears. . . .

(Emphasisadded.) Subsection(d) further provides:

In all casesof soft tissueinjury, the employeeshall only

be entitled to appropriateand necessarymedical care and
temporarytotal disability as set out in paragraph2 of this
section,unlessthere is objectivemedical evidenceof a
perrnanentanatomicalabnormality. In determiningthe
existenceof suchan abnormality,the Court may consider
if there is crediblemedical evidencethat the ability of the
employeeto earnwagesat the samelevel asbefore the
injury has beenpermanentlyimpaired-

(Emphasisadded.) Therefore,under current law, PPD can only be awardedfor soft

tissueinjuries when there is objectivemedical evidencethat the claimanthas a

permanentanatomicalabnormality.

SinceJanuary30,2006,Rule 20(c) of the Rulesof the Workers'

CompensationCourt, 85 O.S. Supp.2006, ch.4, app.,hasprovided:

Medical opinions concerningthe existenceor extentof

perrnanentimpairmentmust be supportedby objective
medical evidenceof permanentanatomicalabnorntality,
and, in appropriatecases,may include medical evidence
that the ability of the employeeto earnwagesat the same
level as beforethe injury has beenpennanentlyimpaired.
Medical opinions supportingemploymentas the major
 causeof occupationaldiseaseor age-relateddeterioration
or degeneration,must be supportedby objectivemedical
evidence. "Obiective medical evidence"includes
rnedtcaltestimonythat restson reliable scientific,
technicalor specializedknowledge,and assiststhe Court
to understandthe evidenceor to determinea fact in
issue.

(Emphasisadded.) Title 85 O.S. Supp.2008 $ 3(17) defines"objectivemedical

evidence"as 'oevidencewhich meetsthe criteria of FederalRule of Evidence702

and all U.S. SupremeCourt caselaw applicablethereto."

Here,both Dr. Rossonand Dr. Pettigrewperformedrangeof motion tests.

Basedon his findings, Dr. Rossonconcludedthat Claimant sufferedfrom rangeof

motion abnormalities.Although Employer assertsthat there is no objective

medical evidenceof an anatomicalabnormality,Employer doesnot take into

accountthat theserangeof motion testswere performed.and that Dr. Rossonbased

his medical opinion in part on the resultsof the tests,as evidencedby the fact that

Dr. Rossongave the opinion that Claimant'spermanentdisability was based,at

leastin part,on her lossof rangeof motion. Also, Dr. Rossonspecificallycitesthe

AMA Guidelinesin supportof his testingresults.

Under 85 O.S.Supp.2008 $ 3(19),

'nPermanent impairment" meansany anatomical

abnormality aftermaximum medical improvementhas
been achieved,which abnormalityor loss the physician
considersto be capableof being evaluatedat the time the
 rating is made. Except as otherwiseprovided herein, any
examining physicianshall only evaluateimpairment in
accordancewith the latestpublication of the American
Medical Association's"Guides to the Evaluationof
PermanentImpairment" in effect at the time of the
injury. . . . All evaluationsof permanentimpairment
must be supportedby objectivemedical evidence.. . .

We find no trial court erroi in awardingPPD benefitsto Claimant becauseDr.

Rosson'sopinion that Claimant has a permanentanatomicalabnormality

constitutesobjective medical evidenceunder $ 22(3Xd) to supporta PPD award.

Dr. Rossonreviewed Claimant's medicalhistory, performedteststo determineif

shesufferedfrom loss of rangeof motion, and usedthe AMA Guidesto evaluate

Claimant'sdisability.

Employer also assertsthat "[n]o evidencewas offered to show that the

Claimant's abitity to earnwagesat the samelevel as before the injury was in any

way impaired." And due to the lack of this evidence,the trial court erredwhen it

awardedPPD benefits.

This issueis not, however,determinativeof this appeal. Section22(3)(d)

doesnot mandaterelianceon such a finding of impaired wage-earningability

before PPD may be awarded- it simply allows the trial court to use sucha finding

in its considerationof the issue. Even without sricha finding, the fiial court had

Dr. Rosson'sopinion,basedon his examinationof Claimantand Claimant's

l0
medical records,that Claimant had a permanentanatomicalabnormalityto her

back and neck on which the court could baseits award of PPD.

One may disagreewith Dr. Rosson'sconclusionwhen contrastedwith Dr.

Bisson's or Dr. Pettigrew's opinion, but this determinationrequiring weighing the

evidenceis purely within the province of the trial court, and its decisionon this

issuewill not be disturbedon appealunlessthere is no competentevidenceon

which to base it. Parks v. NormanMun. Hosp., 1984OK 53, tl 12,684 P.2d 548,

552;seealsoBerg v. ParkerDrilling Co.,20O4OK72, fl 14,98 P.3d 1099,I l0l-

rnc.v. creek,l979 oK ll, fl 19,590P.2d197,

02 (quotingRefrigeratedTransp.,

200) (The determinationof the weight and probative value of evidence,including

medical evidence,is within the exclusiveprovince of the Workers' Compensation

Court "which may acceptall or part of the evidence,or reject the evidence

entirely.").

CONCLUSION

We find that the trial court's decisionis supportedby competentevidence.

The decision of the fiial court is accordingly sustained.

SUSTAINED.

BARNES, P.J.,and GOODMAN, J., concur.

June 1,2009

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