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Berg v. Parker Drilling Co.9/21/2004
inly the left leg, groin area" and that the shin of his right leg had been scraped.
There was competent medical opinion evidence introduced which was conflicting on the issues. The report of Mr. Berg's medical witness, Dr. Trinidad, concluded that claimant suffered sprains to his left thigh, groin and both hips in the 1998 accident, that he had not achieved maximum recovery and that he needed further evaluation for which he should be referred to an orthopedist for diagnostic and therapeutic purposes.
The medical report of employer's medical witness, Dr. Mitchell, given from his examination of claimant on January 17, 2002, found claimant's injuries were limited to a strain of his left groin. Dr. Mitchell concluded that claimant's injury was fully resolved. He believed Mr. Berg had achieved maximum medical recovery from the accident, that he had sustained 0% permanent partial impairment and could be employed without restrictions.
Dr. Simmons, the independent medical examiner, testified by deposition and portions of his testimony and his written report supported claimant's position, while other portions supported employer's position. He stated claimant had significant arthritis in both hips which called for bilateral total hip replacements. Because these degenerative changes were seen on x-rays taken at the time of the accident, Dr. Simmons believed the arthritic condition was pre-existing and he also believed that claimant's arthritic changes would have continued to progress regardless of the accident. Dr. Simmons thought the soft tissue injury Mr. Berg suffered in the accident aggravated the pre-existing condition and may have made the arthritis more symptomatic, but he did not think the accident was related to claimant's need for surgery to his right hip. Additionally, Dr. Simmons believed claimant's left hip would have been in need of replacement at this time, with or without the accident.
The trial court found against claimant on the issue of causation. The court's order found claimant had sustained a work-related injury to the groin, left hip, right hip and lower back, but denied temporary total benefits and the requested surgery because Mr. Berg's current condition was not caused by the 1998 injury. The trial court specifically found:
laimant's current condition is related to his severe arthritic degenerative condition and not to the injury herein. [And that claimant] failed to establish and persuade this Court that the medical treatment requested (total hip replacement) to both hips is causally connected, directly or indirectly by aggravation, to the [November 25, 1998] injury.
The three-judge panel affirmed and claimant appealed, contending the Worker 's Compensation Court erred in denying his claim for benefits and his request for authorization for surgery because the pre-existing arthritic condition was aggravated by the covered injury. In its opinion vacating the order of the Worker 's Compensation Court, the Court of Civil Appeals characterized the issue presented as being "whether, as a matter of law, the hip replacement surgeries were not compensable because of Claimant's pre-existing condition." In reaching its decision the court substituted its own fact findings for those of the trial tribunal. Disregarding all conflicting evidence, it looked solely at portions of Dr. Simmon's testimony favorable to claimant's position and concluded the three-judge panel "erred as a matter of law" in its determination that the hip replacement surgeries were not necessary medical treatment for his injury.
Seeking certiorari, employer argues that the issues of causation and need for treatment are questions of fact which m
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