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Harns v. Multiple Injury Trust Fund9/28/2001
n additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone, the employee shall receive compensation on the basis of such combined disabilities. (Emphasis added).
It is apparent that the emphasized language refers to combining the disability which made the employee a "physically impaired person" with the disability resulting from the most recent compensable injury. According to the evidence in this record, Claimant's problems with her back and left knee did not arise until after her 1995 injury and therefore could not make her a "physically impaired person" at the time of that injury.
Moreover, we cannot conclude that either Estill or McGough require us to ignore the plain meaning of the language chosen by the Legislature. Estill involved an impairment which existed prior to the most recent compensable injury but which became more manifestly pronounced following that injury. The Court concluded that the exact chronology of the manifestation of the injury was not controlling. This is not a case of a disability which existed prior to the most recent injury but which only became more apparent after that injury. There is no evidence that the back and left knee problems even existed prior to Claimant's 1995 injury.
McGough is similarly inapplicable. In that case, the Court held that Fund's predecessor could be liable for increased disability caused by the combination of the subsequent injury and a worsening of condition involving a previously existing injury which was also compensable and had been reopened. The Court concluded there was no statutory impediment to considering the worsening of the previous injury as the precipitating event for Fund liability, stating:
he reopening of the claim on the "prior" injury established a condition which, if known at the time of the "subsequent" injury would have entitled the claimant to an award of benefits for combined disability. No cogent reason exists to deny relief simply because of the chronology of the proceedings, or the fortuitous order in which the claimant's disabilities became manifest. McGough, 1997 OK 51, 8, 939 P.2d at 1137-1138.
Nothing in this record suggests that Claimant's back and left knee problems are the manifestation of a worsening condition attributable to a prior compensable injury which has been reopened. The Workers' Compensation Court did not err in concluding that Claimant's disabilities which first arose after her most recent compensable injury could not be considered in determining Fund's liability.
Claimant also contends the trial court erred in considering the question of vocational retraining when such retraining had not been received. Although Claimant apparently contends this is a question of law, she cites no authority which bars the Workers' Compensation Court from considering a claimant's potential for vocational retraining in a case against Fund seeking PTD. We must review the trial court's decision that Claimant was not PTD under the "any competent evidence" standard.
The record contains medical expert opinion that "[Claimant] is not permanently and totally disabled, based on age, education, training and experience," and medical evidence recommending Claimant receive vocational rehabilitation. The fact that Claimant chose to settle her case against her employer, giving up her right to receive vocational rehabilitation at her employer's expense, cannot be used to increase Fund's liability. The trial court's decision that Claimant was not PTD as a result of the combination of the disability which co
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