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Bray v. Pecofacet Houston, LLC

Court of Appeals of Oklahoma, Division II

April 27, 2017

EDWARD E. BRAY, Petitioner,
v.
PECOFACET HOUSTON, LLC, TRAVELERS INDEMNITY CO. OF AMERICA and THE WORKERS' COMPENSATION COMMISSION, Respondents.

          Mandate Issued: 05/24/2017

         PROCEEDING TO REVIEW AN ORDER OF A THREE-COMMISSIONER PANEL OF THE WORKERS' COMPENSATION COMMISSION HONORABLE TARA A. INHOFE, ADMINISTRATIVE LAW JUDGE

          Bob Burke, Oklahoma City, Oklahoma and Michael R. Green, Tulsa, Oklahoma, for Petitioner

          Linda Foreman, Jill R. Fidelie, ADELSON, TESTAN, BRUNDO, NOVELL & JIMENEZ, Oklahoma City, Oklahoma, for Respondents

          Mike Hunter, ATTORNEY GENERAL, Oklahoma City, Oklahoma, for Respondents

          KEITH RAPP, JUDGE

         ¶1 Edward E. Bray (Claimant), appeals an Order of the Oklahoma Workers' Compensation Commission (WCC) ruling that the Employer, Pecofacet Houston, LLC, and its insurer, have the right to select the treating physician for Claimant's work-related injury.

         BACKGROUND

         ¶2 This appeal calls for the interpretation of 85A O.S.Supp. 2015, § 50 (A) and (B), in light of the facts of Record. [1]

         ¶3 On September 10, 2015, Claimant was injured at work. On October 15, 2015, Claimant filed his formal notice of claim alleging injury to the left shoulder and neck. [2] On November 24, 2015, Employer admitted the shoulder injury, but denied the neck injury. [3]

         ¶4 When the injury occurred, Employer provided prompt medical attention and at Physician's Clinic. The physician reported the shoulder treatment as of October 2, 2015. [4] The Record shows that, on October 6, 2015, Claimant complained about his neck to the physician treating his shoulder. [5] On November 6, 2015, the physician at the clinic recommended that Claimant be referred to a spine specialist. [6] An x-ray examination on November 6, 2015, did not disclose any injury. [7] On November 23, 2015, after referral by Physician's Clinic, an MRI was performed. The reported findings were "no disc herniation or significant stenosis" and "non-specific sclerotic lesion in C4." [8] Employer relies on this report for its positions that Claimant did not sustain a work-related injury to his neck and as justification for not providing medical treatment for a neck injury. Employer continued to deny that a neck work-related injury occurred through trial and appeal.

         ¶5 On December 18, 2015, WCC authorized a change of physicians for Claimant's shoulder treatment. After examination on January 7, 2016, this new physician issued a report. The report recited that Claimant complained of "significant pain" in his neck. The physician noted that prior tests did not show neck injury, but nevertheless, he recommended then, and again by report of February 8, 2016, that Claimant be seen by a spine specialist or a neurologist for an opinion regarding the neck complaints. [9]

         ¶6 On February 10, 2016, nerve conduction studies and an electromyography were performed. These tests disclosed cervical radiculopathy and ulna neuropathy related to the injury at work. It appears that Claimant paid for this test. [10]

         ¶7 The WCC affirmed the ruling by the Administrative Law Judge (ALJ) that Claimant sustained a work-related neck injury. Neither party appealed this determination.

         ¶8 The ALJ also ruled that Employer had not provided medical care for the neck injury within five days as required by statute. The ALJ ordered that Claimant could choose his physician. The WCC reversed this part of the ALJ's decision and ruled ...


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