Bi-Lo Food Warehouse v. McCause8/11/1992
The opinion of the court was delivered by: GARRETT, Judge.
Petitioner Ada Lorene McCause (Claimant) filed her Form 3 in the Workers' Compensation Court on July 25, 1990, alleging she sustained an accidental injury arising out of and in the course of her employment with Respondent Bi-Lo Food Warehouse (Employer). She worked as a butcher for Employer and alleged she was injured on June 15, 1990, and around Thanksgiving. She alleged she injured her arms, neck, shoulders, back, legs and feet. This review proceeding involves only the June 15, 1990 accident, in which she fell while pulling a cart into the freezer, and primarily involves the injury to her back, neck and shoulders.
The trial court's order was filed October 4, 1991, in which Claimant was found to have sustained an accidental personal injury to her neck, shoulders and back arising out of and in the course of her employment. The court held she was temporarily totally disabled (TTD) from June 15, 1990, and was still TTD and in need of further medical treatment, care and attention. Employer was ordered to furnish Claimant with necessary medical treatment, care and attention to be rendered by a competent physician chosen by Claimant, and for compensation to continue during her TTD period, not to exceed 150 weeks. Determination of permanent disability, if any, sustained by Claimant was reserved for future hearing.
Employer contends that the trial court erred in allowing Claimant to introduce a medical report which was filed within 20 days of the date of trial, absent waiver by opposing party, or a showing of good cause why the untimely filing should be excused, pursuant to Workers' Compensation Court Rule 19(D), 85 O.S.Supp. 1990, Ch. 4, App. It also cites Howard v. T.G. & Y. Stores, Inc., 725 P.2d 1262 (Okl. 1986), in support of its contention.
Rule 19(D) provides:
D. No party, including the Special Indemnity Fund, will be allowed to introduce documentary evidence not timely exchanged or to amend forms, answers, medical reports or lists of witnesses within twenty (20) days of the date of trial, unless the opposing parties waive all objections, or the offering party shows in an adversary proceeding good cause why the late offering of such evidence should be excused.
In the instant case, the trial was continued on September 4, 1991, and it was agreed that Claimant would receive time to obtain a medical report of Dr. D., the physician who had been treating Claimant most recently. The report was filed on September 10, 1991, and on September 14, 1991, the trial was reset for September 24, 1991. Although there was only fourteen days between the filing and the trial, it is apparent that all parties understood that the report was forthcoming. Further, the trial date was not set until the report was filed. This is factually distinguishable from Howard v. T.G. & Y. Stores, Inc., supra, in which the trial date had been set, but the report was not filed earlier than five days prior to the trial. In the instant case, no objection was filed by Employer when the trial date was set. The trial court heard Employer's objection, and Claimant's response, to the admission of the report at the trial, and admitted the report. Although there was no specific finding of good cause, the trial court obviously considered good cause to exist, and we agree.
Employer next contends that Dr. D.'s report is not competent and lacks probative value because it does not contain an accurate history, or a statement that he had reviewed the medical reports, records of tests and treatment conducted by other physicians prior to his examination.
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