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Edmond Public Schools v. Cook12/15/1992
. . . his present impairment is 32.5% of the whole person, over and above any previous impairment." Dr. H's report provides no basis for a determination of 20% "residual" disability from Claimant's previous back injury. This mere statement, relative to the percentage of disability for a prior injury, without a more detailed description of that injury, is insufficient to support the award of the trial court. Stockton, 653 P.2d at 199-200.
B.F. Goodrich v. Frost, 630 P.2d 321 (Okl. 1981), stands for the proposition that there exists a rebuttable presumption the physical condition of a previously injured worker has not changed since the adjudication of his prior injury , and the party wishing to show a change in condition from the earlier adjudication has the burden of coming forward with persuasive evidence. Applying this reasoning to the present case, the trial court fails to adequately explain its determination in arriving at the exact percentage of the pre-existing disability in the present case.
Finally, the degree of prior disability is to be figured on the date of the subsequent injury , not on the date of hiring. That degree of prior disability is to be considered a fact question to be determined on the evidence, and competent medical evidence must be admitted to support Claimant's percentage of recovery from his prior injury. Special Indemnity Fund v. Washburn, 722 P.2d 1204, (Okl. 1986). There is a rebuttable presumption that a previous impairment had not changed since the last adjudication. Frost, supra. The degree of a previous disability is a material issue in determining a claim, and requires a factual finding derived from an examination of the evidence. Washburn, 722 P.2d at 1207.
Reviewing the medical evidence, the record shows the 1988 injury was settled through a joint petition by Claimant with Balcor for $40,000.00. Claimant's medical expert initially attributes 43% to the prior impairment, then states, without, explanation, Claimant has a 20% residual disability from his previous back injury. Edmond Schools' medical expert, Dr. P, opines a 46.2% permanent partial disability to the body as a whole as a result of the 1988 injury, but neither party provides us with an adjudication by the Court determining an exact percentage of Claimant's 1988 disability. As previously stated, the trial Court, found the Pre-existing injury to be 42.5%, and the Court En Banc affirmed the trial court. We canvass the facts only for the purpose of ascertaining whether the tribunal's decision is supported by competent evidence. Parks, supra, 684 P.2d at 552.
Where there is an absence of competent evidence to support a material finding of fact to sustain an award of the Workers' Compensation Court, it will be vacated as a matter of law. See City of Tulsa v. State Industrial Court, 424 P.2d 966 (Okl. 1967). Applying this criteria to the present case, we find the medical report submitted by Claimant's expert witness, Dr. H, is not competent to support the trial court's award, and consequently, is insufficient to affirm the Three Judge Panel.
VACATED.
ADAMS, P.J., and GARRETT, J., concur.
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