Mandate Issued: 03/27/2019
PROCEEDING TO REVIEW AN ORDER OF THE WORKERS'
COMPENSATION COMMISSION HONORABLE MICHAEL T. EGAN,
ADMINISTRATIVE LAW JUDGE
Burke, Oklahoma City, Oklahoma and Jeffrey M. Cooper,
Oklahoma City, Oklahoma, for Petitioner
Rops, AYIK & ASSOCIATES, St. Paul, Minnesota, for
DEBORAH B. BARNES, PRESIDING JUDGE
This is the second appeal in this case. The first appeal --
Sequel Youth & Family Services LLC v. Ayisi,
2018 OK CIV APP 7, 412 P.3d 107 -- arose from an order of the
Workers' Compensation Commission affirming the order of
an Administrative Law Judge (ALJ) who found Marcella Ayisi
(Claimant) sustained compensable injuries to both of her
knees arising out of the course and scope of her employment.
As explained at greater length in the prior appeal, Claimant
fell on August 26, 2015, while working as a residential
counselor for Sequel Youth & Family Services, LLC. She
"land[ed] directly on both knees." 2018 OK CIV APP
7, ¶ 2. The medical evidence generated after the
accident revealed that the primary injury or condition in
Claimant's knees is osteoarthritis.
As explained in the prior appeal, the pertinent statutory
provisions are found in 85A O.S.Supp. 2014 § 2, and
provide as follows:
9. a. "Compensable injury" means damage or harm to
the physical structure of the body... caused solely as the
result of either an accident, cumulative trauma or
occupational disease arising out of the course and scope of
b. "Compensable injury" does not include:
(5) any strain, degeneration, damage or harm to, or disease
or condition of, the eye or musculoskeletal structure or
other body part resulting from the natural results of aging,
osteoarthritis, arthritis, or degenerative process including,
but not limited to, degenerative joint disease, degenerative
disc disease, degenerative spondylosis/spondylolisthesis and
spinal stenosis, or
(6) any preexisting condition except when the treating
physician clearly confirms an identifiable and significant
aggravation incurred in the course and scope of employment.
Regarding the exclusion of conditions "resulting from
the natural results of aging, osteoarthritis, arthritis, or
degenerative process," set forth in § 2(9)(b)(5),
we explained that under both the Workers' Compensation
Code and the Workers' Compensation Act such conditions
were also excluded except where "the employment is a
major cause of the deterioration or degeneration and is
supported by objective medical evidence[.]"
Ayisi, ¶ 14 (citing 85 O.S.Supp. 2010 § 3
(13)(d); 85 O.S. 2011 § 308 (10)(c)). We explained,
among other things, that "legislative silence is rarely
to be taken as clear legislative intent to abrogate an
established construction," Ayisi, ¶ 14,
and we explained that an alternative construction requiring
that such injuries, in effect, be "caused solely"
by the employment in order to be compensable would "be
untenable in light of the statute as a whole,"
id. ¶ 21. We concluded, in pertinent part, that
Claimant's osteoarthritis -- which we explained was
defined as a condition caused by the damage or breakdown of
the protective joint cartilage between bones -- is therefore
compensable under § 2(9)(b)(5) if her employment is
found to be the major cause of her osteoarthritis.
Ayisi, ¶ 14 n.2. We stated in the prior appeal
that "it is the legislative intent that, in this case,
Claimant's osteoarthritis, if resulting from the natural
results of aging, is not compensable unless it is found that
the employment is the major ...