Smith v. Whataburger Rest., LLC

466 P.3d 636

Brittany SMITH, Petitioner,

v.WHATABURGER RESTAURANT, LLC, Safety National Casualty Corporation and the Workers' Compensation Commission, Respondents.

Case No. 117,832

Court of Civil Appeals of Oklahoma, Division No. 2.

FILED NOVEMBER 22, 2019

Mandate Issued: June 17, 2020

Michael R. Green, LAW OFFICE OF MICHAEL R. GREEN, PLLC, Tulsa, Oklahoma, and Bob Burke, Oklahoma City, Oklahoma, For Petitioner

Catherine C. Taylor, Anthony A. Blair, Reagan Madison Fort, PERRINE, REDEMANN, BERRY, TAYLOR & FRETTE, P.L.L.C., Tulsa, Oklahoma, For Respondents

OPINION BY P. THOMAS THORNBRUGH, JUDGE:

¶1 Petitioner, Brittany Smith (Claimant), seeks review of a Workers' Compensation Commission order affirming an administrative law judge's (ALJ's) finding that Claimant's claim for injury to her cervical and thoracic spine, and spinal cord, is barred by the statute of limitations. For the following reasons, we reverse the Commission's decision and remand for further proceedings.

BACKGROUND

¶2 Claimant filed a CC-Form 3 on April 13, 2017, for an injury that occurred on March 9, 2017, to her low back and right hip when she slipped and fell on an ice water accumulation on the floor at her job at Whataburger (Employer). After the store manager called for an ambulance, she was taken to a local emergency room complaining of pain in her back and rib area. X-rays showed no abnormalities, but she was prescribed pain relief medication and released. She missed work for five days, after which she returned and worked in the same job for another two months, until she quit and went to work in a similar position at another restaurant.

¶3 From the outset of the case, Employer denied liability for the injury "pending discovery." It refused to pay temporary total disability (TTD), refused to pay Claimant's medical expenses, and refused to designate a treating physician. Claimant timely requested a trial date. Both parties obtained medical reports from their respective experts — Claimant in May 2017 and Employer in August 2017. Although the experts' reports — later admitted at trial — made different recommendations for further evaluation and treatment, each physician found that the sole cause of Claimant's lower back and right hip pain was the March 9, 2017, accident.¹ Nonetheless, Employer continued to deny liability and in October 2017 requested the appointment of an independent medical examiner (IME) "to address causation."

¶4 The ALJ appointed Dr. Benjamin White as IME. Dr. White examined Claimant in January 2018, and ordered MRIs of Claimant's cervical, thoracic, and lumbar spine based on the symptoms she reported to him of pain extending up her spine into the thoracic region, cutaneous sensitivity, and numbness in the area of her thoracic spine and in left arm.² The IME's report, dated February 21, 2018, states that Claimant's MRIs had revealed that she has a large "spinal cord syrinx extending from her cervical into her thoracic spine," with an associated "Chiari malformation," and that this condition was consistent with the symptoms she had reported to him.³ The IME also opined "within a reasonable degree of medical certainty that [Claimant's] symptomatic syrinx is causally related to her fall at work." He recommended that Claimant undergo a "Chiari decompression," a surgical procedure with an estimated recovery time of 4 to 6 months. As for Claimant's lower back, however, the IME report stated "[h]er lumbar spine MRI is normal," and her "low back imaging is unremarkable," and recommended no further treatment for her lumbar spine.

¶5 During his deposition in June 2018, the IME further explained that, although he found no "structural abnormality" in need of treatment in Claimant's lumbar, cervical, or thoracic spine, he felt her continued complaints of worsening pain in her low back stemmed from the "anatomic problem [that] is in her spinal cord," which was in need of treatment. During cross examination, on being further pressed to explain what mechanism of injury could be causing Claimant's continued lower back pain, he stated:

A. [by the IME] Again, I think that the low back is a bit of a red herring. I think she likely hurt her low back, you know, not in a way that needs surgery or any type of medical treatment, but again, I am far less concerned about her mechanical pain in her low back and even in her neck and thoracic spine, than in the neurologic symptoms she developed in the intervening weeks and months.

* * *

A. Remember, all the signals that go through the low back, those nerves, they get irritated by ruptured discs, bulging discs, all that dreaded stuff that we see in patients who injure themselves, those signals also have to go up the spinal cord.

When the spinal cord starts being stretched, the signals can get mixed up, and so you can get numbness, you can get pain, you can get paresthesias or tingling, odd sensations, and spinal cord syrinxes can cause very odd sensations and can be in all extremities.

In untreated and progressive cases, you can even see paralysis.

Q. Was she having symptoms — Did she complain of symptoms to you other than in her low back?

A. Yes, she did. She complained of symptoms in her arms — weakness in her arms and legs. She complained of kind of upper thoracic pain. She complained of areas in her trunk of cutaneous sensitivity or funny feelings when you touched areas of her trunk.

So she complained of pretty much at least sensory symptoms in all four extremities and in her trunk.

Q. What nervous system would that be related to?

A. The spinal cord. The tracks, the tracks of fibers that carry information up back to the brain....

.....

The spinal cord has got 15 or 20 different tracks, with fibers that carry different information up and down, and all of them can be affected. That's why you can get really bizarre symptoms from syrinx and a Chiari.

White deposition at pp. 33-35.

¶6 Employer paid the expenses of the IME and diagnostic testing as required by 85A O.S. Supp. 2014 § 112(G). However, it continued to deny liability and refused to approve any other medical expenses or treatment.

¶7 On June 18, 2018, within a week of the IME deposition but more than a year after her March 2017 date of injury, Claimant filed an amended CC-Form 3, adding, as injured body parts, her cervical and thoracic spine and her spinal cord. Employer denied the claim and raised the affirmative defense of the statute of limitations at 85A O.S. Supp. 2014 § 69(A), which bars a claim unless filed within one year from the date of injury.

¶8 Claimant argued the one-year period had been tolled by § 69(B)(1) of the 2014 statutes, which extends the limitations period for a claim for "additional compensation" in a case in which "any compensation, including disability or medical, has been paid on account of injury." Title 85A O.S. Supp. 2014 § 69(B)(1) bars a claim for additional compensation unless it is filed within one year of the last payment of compensation or two years of the injury date, "whichever is greater."

¶9 An ALJ heard the matter on July 26, 2018. Claimant testified and medical evidence was admitted, including the IME's report and deposition. The ALJ issued an order on August 7, 2018, finding a work-related injury to Claimant's low back, but holding that the one-year limitations period barred the claim of injury to her cervical and thoracic back and spinal cord. The ALJ recognized that the IME found Claimant's fall at work had caused her Chiari malformation to become symptomatic and obstruct the flow of spinal fluid. However, the ALJ rejected Claimant's contention that Employer's payment for services and testing provided by the IME constituted payment of "compensation" under § 69(B)(1), meaning that § 69(A) applied and barred the amended claim. The ALJ further denied Claimant's request for further medical treatment to her lower back, based on the IME's opinion as to her lumbar spine. Injury to Claimant's right hip was reserved for determination at a later date.

¶10 Claimant appealed to the Commission en banc , which affirmed the ALJ. Claimant now seeks review here.

STANDARD OF REVIEW

¶11 Because Claimant's date of injury was in March 2017, the Administrative Workers' Compensation Act (AWCA) governs the law applicable to this matter, including our standard of review. Brown v. Claims Mgmt. Res., Inc., 2017 OK 13, ¶ 9, 391 P.3d 111. Under the AWCA, appellate review is governed by 85A O.S. Supp. 2014 § 78(C),⁴ under which this Court may modify, reverse, remand for rehearing, or set aside a WCC order 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 decision.

¶12 Although limitations issues "involve mixed questions of fact and law and are reviewed as questions of law in this Court," Ellington v. Horwitz Enter. , 2003 OK 37, ¶ 4, 68 P.3d 983, the Supreme Court has recognized that, because a limitations defense "is treated as a true affirmative defense, rather than as a jurisdictional question," it is not "independently reviewed by this Court." Lamson & Sessions v. Doyle , 2002 OK 89, ¶ 9, 61 P.3d 215. Accordingly, under the administrative review standard of the AWCA, if the determination of a limitations defense depends on a fact issue, then the Commission's determination will be upheld if it is supported by substantial evidence and is not otherwise contrary to law. See Lamson & Sessions, id. ; see also Mullendore v. Mercy Hosp. Ardmore , 2019 OK 11, ¶ 13, 438 P.3d 358 ; and Brown , 2017 OK 13 at ¶¶ 10-11, 391 P.3d 111. To the extent our review requires the resolution of a pure issue of law — such as statutory construction — however, we review the issue de novo . Arrow Tool & Gauge v. Mead , 2000 OK...