Reopening Awards

1. Applicable Law

Because it affects the substantive rights of the injured worker to monetary benefits, "an award of permanent disability for a change in condition is governed by the statutory language in effect at the time of the initial injury." King Manufacturing v. Meadows, 2005 OK 78, 127 P.3d 584.

When addressing the procedural issue of the statute of limitations, the law in effect at the time of the change of condition applies; and the statute commences from the last order that substantially affects the monetary, medical, or rehabilitative benefits conferrable by the Act. Arrow Tool & Gauge v. Mead, 2000 OK 86, 16 P.3d 1120.

An order awarding temporary total disability is not a final order which would require claimant to prove a change of condition for the worse to obtain additional temporary compensation. Simmons Industries v. Hartman, 1990 OK CIV APP 110, 807 P.2d 294.

When claimant fell on her coccyx due to buckling of her previously-compensated knee, she requested reopening of her knee award and a finding of consequential injury to her coccyx. The trial judge denied both, but the panel awarded 5% disability for consequential coccyx injury and affirmed denial of reopen of the knee. Employer appealed, and COCA affirmed to panel award holding "a second injury should be compensated if attributable to the first one, not defeated by the mere happenstance that it affected another part of the claimant's body." Burt v. Oklahoma Nat. Bank, 1981 OK CIV APP 41, 632 P.2d 440.

1.1. Reopening a No-Impairment Order

[A finding that] a worker has sustained no permanent disability does not preclude reopening the matter for change of condition as long as an accidental injury was suffered during employment. Parsons v. State Industrial Court, 372 P.2d 27, 30 (Okl. 1962). See also Southwest Stone Company v. Washington, 381 P.2d 872, 874-876 (Okl. 1963). Southwest Stone was a cumulative injury case where the Supreme Court made clear a worker could file a claim for compensation even though he has no present compensable disability.
White v. Weyerhaeuser Co., 1990 OK 98, 798 P.2d 623

2. Change of Condition for the Worse (COCW)

Upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, the Court may at any time review any award, and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded, . . .
85 O.S. §28.

Oklahoma law presumes a claimant's physical condition has not changed since the last adjudication and places the burden on the claimant to prove otherwise. However, the presumption is rebuttable. Wald v. Roto Rooter, 1995 OK CIV APP 122, 910 P.2d 354. When reopening on that basis, the claimant must produce competent evidence that (1) there has been a change of condition, producing increased disability or triggering recurrence of the healing period, and (2) that the changed condition is a legitimate consequence of the compensable accident, i.e., medically related to the on-the-job injury. Bama Pie, Ltd. v. Raes, 1995 OK 122, 905 P.2d 811.

3. Cases Evaluating COCW

1. Nuway Laundry Company v. Hacker, 1964 OK 151, 396 P.2d 659, states "recurrence of temporary incapacity, either before or after a determination of permanent partial disability has been effected, constitutes a change of condition within the contemplation and purview of 85 O.S. §28, and affords a proper basis for an order allowing additional compensation. Hondo Petroleum Company v. Piearcy, Okl., 376 P.2d 1012 , 1013. An additional allowance of temporary benefits may be predicated upon a finding that claimant is in need of medical attention due to a subsequent progression in his compensable condition."
2. Bryant-Hayward Drilling Company v. Cook, 1971 OK 5, 483 P.2d 1131, held that a medical report does not need to state in categorical language that the claimant sustained a change of condition. It is necessary to indicate in some manner, by objective findings, tests, examinations, new findings of conditions which had not existed at the prior hearing or findings of conditions which have worsened subsequent to the last hearing, that there has been a COCW.
3. Oklahoma Gas & Electric v. Black, 1995 OK 38, 894 P.2d 1105, holds that a while increased pain is a factor, a determination of permanent change of condition requires a finding of deteriorated physical condition.
4. University of Oklahoma v. Steinberg, 2001 OK CIV APP 91, 29 P.3d 618, involved a claimant whose bowel and bladder problems were manifested before adjudication of PPD to her back and neck. Res judicata barred claimant from obtaining an award for consequential bowel and bladder problems in a motion-to-reopen proceeding. However, an order to reopen her back injury was affirmed in part because Dr. Hastings found a greater decreased ROM in his 1999 examination when compared to his 1995 exam.
5. Reeves v. Central Sales Promotions, 1981 OK CIV APP 35, 632 P.2d 436, stands for the proposition that pain alone is insufficient to prove a COCW. This is a Judge Brightmire opinion that illustrates what not to do. It is also a good example of how many medical reports are poorly written for COCW by claimants and respondents.

4. Practice Points

  • Each party must offer a competent medical report that complies with Rules 20, 35 and is credible.
  • Competent doesn’t mean credible.
  • Physician should state the specific reasons for his opinion in clear language instead of expecting that the Court will search the records to find deterioration of findings between prior and current testings, or increased clinical examination findings of loss of ROM, loss of sensation, straight leg raising test, inability to perform daily activities including work, etc.
  • It is not necessary for the examining physician to review all of claimant's records and reports prior to the last order to state a competent medical opinion on change of condition. Skinner Tank Company v. Skinner, 1998 OK CIV APP 55, 960 P.2d 858.

5. Statute of Limitations

For a discussion of this issue click here.

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