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Ponca City Public Schools v. Ritcheson3/9/1993
supported by competent evidence. Further, our review of the medical report from Dr. F., Employer's medical expert, indicates that Dr. F. considered medical reports not admitted into evidence.
Employer argues the trial court's denial of its motion to appoint a second independent medical examiner was erroneous. It cites the case of Kerr McGee Refinery Corporation v. Blackburn, 805 P.2d 128 (Okl.App. 1991), in which this Court held the court's failure to appoint an independent physician was error. However, the Blackburn case, supra, is distinguishable. It was not a death benefits case. The court in Blackburn, supra, failed to appoint an independent medical examiner when the request to do so was found to be timely by this Court. In the instant case, the trial court did appoint an independent physician at the request of Employer, but his report was found to be incompetent. Employer has not cited any authority for its proposition that the trial court was required to appoint another independent physician. Further, despite the urging by Employer that 85 O.S. 1991 § 17 (identical to 85 O.S.Supp. 1990 § 17 ) should apply to death cases as to the causation issue, the statutory language plainly provides that when the medical testimony to be presented by Employer and Employee disagrees "as to the medical cause of the medical permanent impairment" (emphasis added), the parties may follow the procedures for seeking the opinion of a third physician. It does not require the appointment of an independent medical examiner in a death claim. Death is not mentioned or contemplated in § 17, and it is applicable only to living claimants with total or partial permanent disability. "Where, as here, a statutory right is created which did not exist at the common law and the same statute fixes the conditions upon which the right may be asserted, the conditions are an integral part of the right thus granted - are substantive conditions, the observance of which is essential to the assertion of the right." Hughes Drilling Co. v. Morgan, 648 P.2d 32, 35 (Okl. 1982). The court's appointment of the independent physician was not required. Therefore, the appointment of another physician was not required. We find no error.
Findings of fact made by the trial court are binding and conclusive in review proceedings before this Court, unless they lack support in competent evidence. Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okl. 1984). It is only when competent evidence is lacking that the trial court's decision may be determined to be erroneous as a matter of law. Parks, supra. Competent evidence supports the trial court's order. The order of the three judge panel affirming the trial court is SUSTAINED.
ADAMS, P.J., and JONES, J., concur.
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