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Manpower8/9/2002
Modified: 12/27/2002
__ P.3d __
SUSTAINED
The Workers' Compensation Court found that claimant Becky Brawdy sustained a pathological change of condition for the worse to her low back and ordered temporary total disability benefits. It specifically denied employer's defenses of spoliation of the evidence and that claimant failed to give timely notice of additional medical treatment. A three-judge panel of the Workers' Compensation Court unanimously affirmed the order. We sustain.
In 1998, Becky Brawdy was employed by Manpower and was working temporarily at the York International plant. She fell off of a ladder and hurt her lower back. She filed her workers' compensation claim and was awarded 6.5% disability. After that time, she had surgery on her back and then filed to reopen her workers' compensation case claiming a change of condition for the worse. At trial, Manpower and its insurance company (collectively "Manpower") asserted two defenses, spoliation of the evidence and untimely filing of the petition to reopen. The defenses were denied and, after trial, the court found that Brawdy had a change of condition for the worse and awarded her temporary total disability benefits.
Manpower contends that the Workers' Compensation Court erred in denying its defenses. It also claims that the order was not supported by any competent medical evidence.
With respect to the allegation of spoliation of the evidence, Manpower claims that Brawdy's surgery destroyed any evidence it might have used to defeat the reopening of the case. "Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting the ability of a litigant to prove his or her claim." Patel v. OMH Medical Center, Inc., 1999 OK 33 , 987 P.2d 1185, 1202. "If applicable, destruction of evidence without a satisfactory explanation gives rise to an inference unfavorable to the spoliator." Brown v. Hamid, 856 S.W. 2d 51, 57 (Missouri declined to recognize an independent tort of spoliation of the evidence finding that its evidentiary spoliation doctrine applied in cases where there was intentional destruction of evidence, indicating "fraud and a desire to suppress the truth." Id.)
Because the intentional destruction of evidence may occur in workers compensation proceedings, we decline to adopt Brawdy's position that it is a doctrine of civil litigation, but not one applicable to workers' compensation cases. It is conceivable that evidence in Workers' Compensation cases could be intentionally destroyed for the purpose of hindering an opponent's ability to prosecute or defend a claim. For that reason, we cannot say that the doctrine of spoliation could not apply in Workers' Compensation cases. However, the parties have cited no case, nor has our research found any case, in which the seeking and receiving of medical treatment has been deemed to be a wrongful destruction of evidence. Manpower has cited us no authority that it had a right to have Brawdy examined before she sought and received treatment prior to her filing for reopening of her case. Medical treatment is generally not sought for the purpose of prejudicing the rights of those who may later be found to be liable for the treatment. And documentation of medical treatment is usually quite extensive. As a result, we will not equate the seeking and obtaining of medical treatment to spoliation of evidence.
For its second allegation of error, Manpower states that Brawdy did not supply any competent medical evidence to establish a change of condition for the worse. However, the medical evidence of Dr. Ellis sufficiently satisfied the statutory requirements. Dr.
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