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Atwood Distributing LP v. Camp

Court of Appeals of Oklahoma, Division I

December 9, 2016

ATWOOD DISTRIBUTING LP, and ZURICH AMERICAN INSURANCE COMPANY, Petitioners,
v.
DARLA JEAN CAMP and THE WORKERS' COMPENSATION COMMISSION, Respondents.

          Mandate Issued: 04/26/2017

         PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COMMISSION

         SUSTAINED

          Timothy E. Lurtz, COLLINS, ZORN & WAGNER, Oklahoma City, Oklahoma, for Petitioners,

          Bob Burke, Oklahoma City, Oklahoma and Brandon Burton, Oklahoma City, Oklahoma, for Respondent Darla Jean Camp.

          Bay Mitchell, Judge.

         ¶1 Petitioners Atwood Distributing LP and Zurich American Insurance Company (Employer) seek review of an order of the Workers' Compensation Commission, affirming the administrative law judge's order awarding Respondent Darla Jean Camp (Claimant) temporary total disability (TTD) benefits beyond thirty-two weeks for the time period prior to surgery for her soft tissue injury. We find Claimant's injury was not subject to the nonsurgical soft tissue TTD limitations in 85A O.S.Supp. 2014 §62 and the Commission properly awarded Claimant TTD pursuant to 85A O.S.Supp. 2014 §45.

         ¶2 Claimant filed a claim seeking compensation on June 2, 2014, alleging injuries to her right hip, back, right side, and right leg as a result of a single incident accident at work occurring on March 19, 2014. Employer admitted the single incident accident resulted in a compensable injury to the back and paid sixteen weeks of TTD for that injury, which included eight additional weeks of TTD for an injection. On October 15, 2014, Claimant filed a Form 9 requesting an additional sixteen weeks of TTD, having received a recommendation for right hip arthroscopic surgery from Dr. Mitchell. Employer, however, on December 23, 2014, contested the compensability of the injury and the need for surgery to the hip. After a hearing, in an order dated May 6, 2015, the ALJ found the right hip was compensable, ordered the surgery, and awarded Claimant sixteen more weeks of TTD based on the surgery recommendation. Claimant then filed a Form 9 on June 9, 2015, requesting a hearing for TTD (additional to the thirty-two weeks already received) for the period of time while she was waiting for surgery. Claimant had the surgery on July 10, 2015. On September 4, the ALJ awarded Claimant TTD from March 23, 2014 through July 9, 2015, minus the thirty-two weeks TTD that Claimant had already been awarded.

         ¶3 Employer appealed to the Workers' Compensation Commission, arguing the award was contrary to law because Claimant was limited to thirty-two weeks of TTD under the soft tissue injury limitations in 85A O.S. §62. Claimant argued those limitations do not apply because, once she had surgery, her injury was by definition no longer "nonsurgical" as provided by §62 and, therefore, the general TTD provisions at 85A O.S. §45 applied. The Commission agreed with Claimant and affirmed the ALJ's award.

         ¶4 Claimant's injury occurred after the effective date of the Administrative Workers' Compensation Act (the AWCA), making it the applicable law. See Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, ¶18, 295 P.3d 1107, 1113 ("The standard of review applicable to a workers' compensation appeal is that which is in effect when the claim accrues. It is determined as of the date of injury[.]"). The AWCA provides that we may modify, reverse, remand for rehearing or set aside a judgment or award only if it was:

1. In violation of constitutional provisions;
2. In excess of the statutory authority or jurisdiction of the Commission;
3. Made on unlawful procedure;
4. Affected by other error of law;
5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence;
6. Arbitrary or capricious;
7. Procured by fraud; or
8. Missing findings of fact on issues essential to the ...

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