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Wanko v. Ponca Electric3/5/1991
ntervening accidental personal injury." He further acknowledged that on January 23, 1989, the insurance carrier had received information from the Southwest Index Bureau which indicated that "Claimant had sustained an accidental injury on or about January 21, 1986." Employee's counsel received the report in his office seven days before trial. The affidavit details the efforts to obtain the medical records from the Underwriters Adjusting Company.
The records obtained showed correspondence from Claimant's treating surgeon and his treating chiropractors which were attached to the motion for new trial. Several letters, the first dated February 18, 1986, from the surgeon to the chiropractors revealed that he had seen Claimant after referral "with chief complaint of injury on the job 1-21-86." A second letter from the surgeon to the chiropractors was sent on February 27, 1986, and a copy was sent to Ponca Electric. Ponca Electric was sent a copy of a letter the treating surgeon had sent to an insurer. The treating surgeon was one of the medical experts relied upon by Claimant in the February 7, 1989, hearing.
Therefore, when Employer's counsel became aware of a possible intervening injury , a simple request to Claimant's treating surgeon for copies of all his records relating to Claimant and to his treatment would have revealed the purported January 21, 1986, incident. Of special significance is a copy of a Form 2, Employer's First Notice of Injury, filed March 3, 1986, which indicated that Claimant, on January 21, 1986, had strained his back "while pulling in a large electrical service." Not only were the physicians aware of the incident, but Employer itself had knowledge well before the motion to reopen was filed.
Employer attempts to discredit Claimant and the treating physicians because they denied or did not report a separate incident on January 21, 1986. However, at the hearing on remand, Employer's owner also stated that he did not consider the 1986 incident to be a new injury but that Claimant had had on-going back problems and when he had reported to Employer the increased intensity of the problem, Employer had completed the Form 2 and authorized medical treatment. Therefore, it is clearly understandable that Claimant did not consider that he had sustained a new injury but had merely experienced exacerbation of an existing problem.
Therefore, we find that any evidence Employer presented to support its motion for new trial could not only have been discovered with any diligence prior to the trial on February 7, 1989, but, indeed, was known all along by Employer. And if the three-judge panel was empowered to hear the motion for new trial, its order is clearly contrary to law and without evidentiary support.
Based upon the foregoing, we vacate the order of the three-judge panel and the trial court order of December 14, 1989, and reinstate the order of February 13, 1989, and remand the cause to the three-judge panel with instructions to deny the motion for new trial and to determine the appeal of the order of February 13, 1989, on the merits.
BACON, V.C.J., and RAPP, J., concur.
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