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Table of Contents
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1. Soft Tissue Injuries
Benefits available to an injured worker with a nonsurgical "soft tissue injury" are limited to "appropriate and necessary medical care and temporary total disability." The worker may not receive permanent partial disability compensation unless there is objective medical evidence of permanent anatomical abnormality. 85 O.S., §22(3)(d). To determine whether this limitation applies, it is useful to ask the following questions.
1.1. Is it really soft tissue?
Definition from §22(3)(d): [f]or purposes of this section, "soft tissue injury" means damage to one or more of the tissues that surround bones and joints. "Soft tissue injury" includes, but is not limited to: sprains, strains, contusions, tendinitis, and muscle tears. Cumulative trauma is to be considered a soft tissue injury.
The statutory definition includes three exceptions to the soft tissue category that are not very useful for determining whether limited benefits apply.
- Injury to or disease of the spine, spinal disks, spinal nerves or spinal cord, where corrective surgery is performed. There is a rather convoluted implication which has been advanced that without surgery these types of injury are soft tissue. However, the spine is a bony structure and is therefore not soft tissue. A spinal disk is soft tissue that is between the vertebrae, and therefore is not one of the "tissues that surround bones and joints." The spinal cord is soft tissue like the brain that is surrounded by bone, not vice versa. None of these exceptions meet the definition although spinal disk injury is arguably very close.
- Brain injuries. The brain is a soft tissue, but not “soft tissue” as defined in statute, because the brain is an organ that does not surround bone but is itself surrounded by bone.
- Total knee replacement is clearly a bony injury.
1.2. Is it nonsurgical?
Surgery is that branch of medical science concerned with the correction of deformities, repair of injuries, diagnosis and cure of disease, relief of suffering and prolongation of life by manual and instrumental operations. Webster's International Dictionary
85 O.S., §22(3)(d) "soft tissue" TTD limitations only apply to nonsurgical cases. Claimants who have surgery are entitled to up to 300 weeks of TTD benefits. Bed Bath & Beyond v. Bonat, 2008 OK 47, 186 P.3d 952; Sysco Food Services v. Cunningham, 2007 OK CIV APP 52, 162 P.3d 973; CMI/Terex Corporation v. Stevens, 2008 OK CIV APP 102, 198 P.3d 419.
Is an epidural steroid injection or a myelogram a surgical procedure? Claimant alleged an ESI was a surgical procedure in the case of Boyce Manor Nursing Home v. Kaylor, COCA, Div IV, Case No. 104,035 (unpublished). The Court cited with approval, Hartford Accident & Indemnity Co. v. Barfield , 80 S.E.2d 84 (Ga. Ct. App. 1954), in which the Georgia Court of Appeals concluded a myelogram constituted "surgery" in the context of workers' compensation law. In Boyce Manor, the Court stated, "An epidural steroid injection is clearly a manual and instrumental operation for relief of suffering. It involves the same type of invasive 'penetration of living tissue,' as the myelogram in the Hartford Accident & Indemnity case. Accordingly, we believe an ordinary person would understand that this invasive procedure is 'surgery' because it is 'performed manually by a surgeon … in a sterile aseptic surgical room.' We also believe that an ordinary person would understand that this procedure is 'corrective' because it provides relief from pain, albeit temporarily."
Another division of the COCA has indicated that an epidural steroid injection is non-surgical. Wilcoxsen v. Woodward County EMS, 2010 OK CIV APP 50, 231 P.3d 1170, fn9.
1.3. Does the 8 week TTD limitation apply?
Yes, in spite of the patent ambiguity within the soft tissue provision concerning payment of TTD compensation. Language at the beginning of 85 O.S. §22(3)(d), Soft Tissue, limits temporary total disability compensation ("TTD") for nonsurgical soft tissue injuries to 8 weeks plus a 16 week extension if surgery is recommended. The ambiguity arises when a subsequent section states "[i]n all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section …." [Referring to 85 O.S. §22(2) which allows up to 300 weeks of TTD.].
Three divisions of the COCA construing the ambiguity rejected the 8 + 16 limitation and allowed TTD in excess of 24 weeks for nonsurgical soft tissue cases.
In Bed, Bath & Beyond v. Bonat, 2008 OK 47, 186 P.3d 952, a 9-0 decision written by Justice Tom Colbert, the Oklahoma Supreme Court addressed the issue and stated "this Court provides this analysis as binding authority for resolution of the ambiguity."
Justice Colbert succinctly stated the Court's conclusions at ¶12:
1. The legislature intended to limit TTD for certain soft tissue injuries;
2. TTD compensation for non-surgical soft tissue injuries is limited to 8 weeks;
3. If surgery is recommended the trial court may extend TTD compensation for up to 16 additional weeks while claimant waits for surgery; and
4. Since there is no reference to TTD and medical benefits when a soft tissue injury results in surgery, §22(2)(c) applies allowing up to 300 weeks of TTD.
There is a split in opinions of the COCA divisions on whether the eight-week limitation applies to temporary partial disability (TPD). Division II has held that TPD benefits are not limited because there is no express reference to TPD in the statute, only to TTD. Ameriresource Group v. Stroud, COCA Div. II, Case No. 103,556 (unpublished). Contra, Urrutia v. Wendy's Old Fashioned Hamburgers, COCA Div IV, 2007 OK CIV APP 104, 171 P.3d 915.
1.4. Are there exceptions to the 8-week limitation?
1.4.1. Unreasonable Delay of Benefits
The claimants' argument goes like this:
The 8-week limitation for soft tissue injury is similar to the 6-week limitation for hernia cases. The limit on hernia cases can be extended when there is an unreasonable delay in providing benefits to the injured worker. Therefore, an unreasonble delay in a soft tissue case gives the trial court authority to award TTD caused by the delay in addition to the eight weeks.
Urrutia, supra, holds that compensation for soft tissue is "strikingly" similar to that in hernia cases, and it follows the hernia section. However, in another case, the same Division IV of the COCA failed to follow the hernia unreasonable delay cases in the unpublished case of Arcticshield v. Pye, COCA Div IV, Case No. 103,941.
The Supreme Court may have shown its support for the unreasonable delay theory in Bed Bath & Beyond v. Bonat, 2008 OK 47, 186 P.3d 952. There the employer withheld surgery pending the outcome of the appeal. The Court held the following:
The question becomes whether an employer can subject a claim to the time limits imposed for a soft tissue injury merely by withholding its authorization for the surgery recommended by the treating physician and thereby redefining the injury. This Court finds no legislative intent to give an employer the ability to in effect define the injury as "soft tissue" by its refusal to authorize the recommended surgery. Where corrective surgery would have actually been performed, absent the employer's refusal to authorize the recommended surgery, the TTD and medical time limits of section 22(3)(d) are inapplicable and the time limits imposed by section 22(2)(c) apply.
Employer has withheld and continues to withhold its authorization pending the outcome of this appeal. The refusal to authorize the recommended surgery does not operate to artificially force Claimant's injury into the definition of "soft tissue injury." The presence of a soft tissue injury is a medical question to be determined by the Workers' Compensation Court based on competent medical evidence, not on an employer's decision to authorize or refuse to authorize recommended surgery. The claim in this matter is not subject to the soft tissue injury time limitations set forth in section 22(3)(d).
Bed Bath & Beyond v. Bonat, supra at ¶15, 16 .
This holding addresses the primary appellate issue of Bonat, and it may signal the Supreme Court's ultimate acceptance of the unreasonable delay exception.
1.4.2. Stacking of Body Parts
There are no cases addressing this issue. It will usually arise when there are multiple body parts with soft tissue injuries; and they are treated, at least in part, serially instead of concurrently. For example, a claimant with five body parts with soft tissue injuries will have a maximum of 40 weeks of treatment, but this limit will probably be reduced to the extent that treatment of two or more body parts may overlap.
2. Permanent Anatomical Abnormality (PAA)
American Residential Community v. Corley (#107965 released for publication by COCA but still pending on appeal) has held: "[I]t would appear that the phrase, 'permanent anatomical abnormality,' means any anatomical abnormality capable of rating as a permanent impairment under the AMA Guides."
An award for permanent partial disability is not allowed for a soft tissue injury unless "there is objective medical evidence of a permanent anatomical abnormality."
PAA is not defined in the statutes, therefore claimant must offer a competent medical report that addresses the issue. In the case of Dayton Tire v. McCann, COCA Div II, Case No. 103,614 (unpublished) the COCA approved a finding of PAA based on an apparently bare conclusion by Dr. McClure. Although Dr. McClure conducted a clinical examination of the worker, "there were no xrays or magnetic diagnostic imaging reports cited in support of his opinion that a permanent anatomical abnormality was present, and Dr. McClure did not describe the specific nature of the permanent anatomical abnormality." See also, Dept. of Human Services v. Jackson, COCA Div II, Case No. 105,926 (unpublished).
Loss of earning capacity is evidence of PAA. 85 O.S., §22(3)(d) permits the Court to consider "credible medical evidence of permanent impairment to wage earning ability" in cases of soft tissue injury and in cases other than scheduled member injury cases (i.e. "other cases" class of disabilities). Evidence supporting or rebutting the assertion of loss of earning capacity should include a physician's opinion on the issue coupled with testimony to support the physician's opinion.
Loss of ROM and positive findings on x-ray, EMG or MRI if included in a rating medical report tend to support a finding of PAA.
Continental Express, Inc. v. Freeman, 4 S.W.3d 124 (1999) 339 Ark. 142. Arkansas Supreme Court holds muscle spasms constitute objective findings; King v. PeopleWorks, 244 SW 3d 729, Arkansas Court of Appeals 2006 (loss of lumbar lordosis).