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Cozart v. Special Indemnity Fund6/11/1998
COURT OF APPEALS OF OKLAHOMA, DIVISION NO. 3
Opinion Services
COZART v. SPECIAL INDEMNITY FUND
___ P.2d ___
Decided: May 5, 1998
MEMORANDUM
After a 1993 injury to his back, legs, hips and shoulders which resulted in a determination of fifty per cent permanent partial disability to his body as a whole, Claimant Don Cozart filed a claim for benefits for permanent total disability or in the alternative material increase against the Special Indemnity Fund (Fund). Claimant alleged that he was a "physically impaired" person at the time of his 1993 injury by reason of two prior adjudicated injuries to his left foot and back and an "obvious and apparent" disability to his back manifested by a limp in his right leg. After trial, the trial court entered an order which combined only the two adjudicated injuries with the 1993 injury, found a nine per cent material increase as a result of the combination, found Claimant was not permanently totally disabled, and awarded benefits based upon the material increase. The order was silent concerning Claimant's alleged prior obvious and apparent back disability.
Claimant sought appellate review of that order. Another division of this Court vacated that order and remanded the case, directing the trial court to make appropriate findings concerning the existence or non-existence of the allegedly obvious and apparent back disability and consider the effect of that disability if the trial court determined it existed. On remand, the trial court made a specific finding that no obvious and apparent disability existed at the time of the 1993 injury as argued by Claimant, and entered the same award as before.
In this review proceeding, Claimant challenges that order on two grounds. First, he argues that the trial court's order finding that he did not have, at the time of his 1993 injury, an obvious and apparent disability to his back, as manifested by a right leg limp, is not supported by any competent evidence. Second, he argues that the finding of no permanent total disability is similarly unsupported by any competent evidence. We address the issues in that order.
OBVIOUS AND APPARENT DISABILITY
At the outset, we must note that our standard of review on this issue is not the "any competent evidence" standard. Whether a workers' compensation claimant is a physically impaired person within the meaning of the Workers' Compensation Act presents a fact question to be determined from all the evidence. Special Indemnity Fund v. Osborne, 1954 OK 191, 272 P.2d 392. We are required to make an independent review of facts to determine whether a claimant is a physically impaired person as defined in 85 O.S.Supp.1993 Section 171. Special Indemnity Fund v. Estill, 1997 OK 99, 943 P.2d 606.
Under 85 O.S.1991 Section 171, Claimant's pre-existing back disability, which arose out of a 1979 injury which necessitated back surgery, might arguably be used in his claim against Fund if it resulted in the loss of the use or partial use of a member such as is "obvious and apparent from observation or examination by an ordinary layman." In Special Indemnity Fund v. Scott, 1982 OK 110, , 652 P.2d 278, 280, the Court held as follows:
A previous unadjudicated impairment may be established either by lay or medical testimony. Special Indemnity Fund v. Roberts, 356 P.2d 561, 563 (Okl.1960). The requirement that the impairment be obvious and apparent to a layman is established (1) when the condition itself is obvious and apparent or (2) when the condition is manifested by constant, everyday conduct or movement which demonstrates a pronounced physical d
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