274 P.3d 173 2012 OK CIV APP 36

2012 OK CIV APP 36

Horace E. SCOTT, Petitioner, v. SPRINT PCS and American Casualty Co. of Reading, Pa., and The Workers' Compensation Court, Respondents.

No. 109275.

Court of Civil Appeals of Oklahoma, Division No. 1.

Jan. 20, 2012.

Certiorari Denied March 26, 2012.

*174John R. Colbert, Brett A. Morton, J. Colbert & Associates, Ardmore, Oklahoma, for Petitioner.

John A. MeCaleb, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Oklahoma, for Respondents.

KENNETH L. BUETTNER,

Presiding Judge.

T 1 Petitioner Horace Seott seeks review of an order by a three-judge panel of the Workers' Compensation Court which affirmed and modified the trial court's order. We sustain.

" 2 Seott filed his Form 3 June 17, 2010, in which he alleged cumulative trauma injuries to the neck and hands caused by continuous and repetitive use of a keyboard and monitor. Seott asserted January 31, 2009 was the last date of exposure. In its Form 10, Employer denied Scott sustained an injury in the course and scope of employment, and denied Seott timely notified Employer about the injury.

3 Following trial held September 2, 2010, the Workers' Compensation Court entered its Order September 7, 2010, in which it found Scott sustained cumulative trauma injuries to both hands and his neck (cervical spine) arising out of and in the course of employment. The court found the date of first awareness was June 2008 and the date of last exposure was December 31, 2009. The court further found cumulative trauma was the major cause of the injuries, The court set the rates for TTD and PPD, but it did not award compensation. Finally, the court directed Employer to name treating physicians to provide medical treatment or surgery as necessary for Seott's injuries.

T 4 Seott filed his Form 9 October 7, 2010, in which he sought TTD from December 31, 2009. Following a December 29, 2010 hearing, the trial court issued its order January 4, 2011, in which it awarded TTD from February 12, 2010 to date and continuing for up to 52 weeks.

15 Employer appealed the January 2011 order to a three-judge panel, arguing that the panel should find Seott is not entitled to TTD, or alternatively, order TTD benefits to begin June 10, 2010, the date that Scott had surgery on his right hand. At the hearing before the panel, Employer conceded that Scott was entitled to TTD beginning at the time of surgery and for eight weeks before the surgery. The panel issued its order March 9, 2011. The panel directed that TTD be paid from "April 29, 2010, which is (8) weeks for soft tissue prior to surgery on June 10, 2010,. ..." The panel otherwise affirmed the trial court's TTD order.

I 6 We will sustain the panel's order unless we find: 1) the court acted without, or in excess of, its powers; 2) the order or award was contrary to law; 8) the order or award was procured by fraud; or 4) the order or award was against the clear weight of the evidence. 85 O.S.Supp.2011 § 240(D).1

T7 This case involves a claim of cumulative trauma to the neck (cervical spine) and hands. The Workers' Compensation Act provides that cumulative trauma is considered a soft tissue injury, and it limits TTD for non-surgical soft tissue injuries to eight *175weeks. 85 O.S.Supp.2009 § 22.2 As noted above, the panel affirmed the finding that the date of injury was December 31, 2009. The trial court awarded up to 52 weeks of TTD beginning February 10, 2010. In accordance with the statute, the panel reduced the award of TTD to "(8) weeks for soft tissue prior to surgery." (Emphasis added.)

*176T8 Seott argues that because additional TTD may be awarded if surgery is recommended and performed, then the panel erred in reducing the TTD award in this case because Seott did have surgery. However, in this case, Scott underwent right hand surgery before he filed his Form 8. The relevant statute provided, in pertinent part: "(a) claimant who has been recommended ... for surgery for a soft tissue injury may petition the Court for one extension of [TTD] and the court may order such an extension, ..." 85 O.S.Supp.2009 § 22. Because Seott had surgery before beginning his claim, he did not petition the court for an extension of TTD based on a surgery recommendation, nor did the court order such an extension. Absent court approval, there was no statutory procedure for obtaining an extension of TTD. Onee the surgery was performed, Seott was subject to the regular limits on TTD. Bed, Bath & Beyond v. Bonat, 2008 OK 47, ¶ 12, 186 P.3d 952.

T9 The language of the statute is ambiguous, as noted by the Oklahoma Supreme Court in Bonat, supra. However, it is clear that a claimant is entitled to 8 weeks of TTD for non-surgical soft tissue injuries. If surgery is recommended, the claimant may seek court approval for one extension of an additional 16 weeks of TTD. The extension provides the claimant time to arrange the surgery and get approval for it from the employer or the court. The court shall terminate the extension if the recommended surgery is not performed within 90 days (unless the delay is not caused by the claimant). Following surgery, the claimant is subject to the regular limits on TTD.

[ 10 We read the statute to reflect a legislative intent to limit pre-surgery TTD for soft-tissue injuries, even when surgery is recommended. While a claimant may request an extension of the 8 week limit if surgery is recommended, TTD will terminate if surgery is not performed. -It is clear the limitation is designed, in part, to encourage the claimant to determine whether surgery is recommended and to have it performed. The legislative structure would be thwarted if the claimant could wait months or years to decide to have surgery (which could end the healing period) and then receive compensation up to the regular TTD limits for time preceding the surgery.

{11 Before his surgery (which occurred without first obtaining court approval for extended TTD), Scott was entitled to 8 weeks of TTD for his soft tissue injury and the panel correctly limited the award of TTD. Following surgery, Scott is subject to the regular limits on TTD. Bonat, supra. The panel's order was not contrary to law nor against the clear weight of the evidence. SUSTAINED.

JOPLIN, V.C.J., and MITCHELL, J. (sitting by designation), concur.

Scott v. Sprint PCS
274 P.3d 173 2012 OK CIV APP 36

Case Details

Name
Scott v. Sprint PCS
Decision Date
Jan 20, 2012
Citations

274 P.3d 173

2012 OK CIV APP 36

Jurisdiction
Oklahoma

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