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Bill Hodges Truck Co. v. Gillum5/31/1989
THE REVIEW PANEL'S AWARD IS VACATED AND THE REOPENING CLAIM REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.
The opinion of the court was delivered by: OPALA, Vice Chief Justice.
The issues presented for review are: 1) May proof of a changed condition be effectively dispensed with by an employer's incourt stipulation never sought to be withdrawn with leave of the trial tribunal? and 2) Did the worker meet his burden to establish that the heart transplant he seeks should be approved as a "reasonable and necessary" expense incident to recovery from a compensable accidental injury ? We answer the first question in the affirmative and the second in the negative.
I
THE ANATOMY OF LITIGATION
On August 20, 1982 and May 22, 1983 Wilton Ray Gillum [worker] sustained job -related accidental injuries to his heart from myocardial infarctions, for which he claimed compensation. An agreed award of October 20, 1983 (amended nunc pro tunc on November 23, 1983) allowed him both temporary total and permanent total disability. The order included the standard clause requiring the employer to pay "all reasonable and necessary medical expenses incurred by claimant as a result of said injury ". This award became final when neither party challenged it by a plea for corrective relief.
The worker's Form 9, filed in February 1986 and followed by two amendments in March 1986, seeks additional temporary disability and approval of a heart transplant with incidental medical care. The latter request was heard on April 8, 1986. During the hearing the parties stipulated the only issue to be submitted for the court's decision was whether a heart transplant constitutes a "reasonable and necessary" expense of an accidental injury to be borne by the employer. The trial judge's May 1, 1986 order provides that a heart transplant procedure falls within the category of reasonable and necessary medical expenses previously ordered on October 20, 1983. It is this order, later affirmed by a three-judge appellate panel, that is now on review.
Below the employer resisted the quest for organ substitution by contending that a heart transplant is not a reasonable and necessary medical expense within the purview of health services mandated by 85 O.S. 1981 § 14 . On review the employer appears to retreat from, if not abandon, this defensive theory. It asserts instead that (1) the compensation court "lacked jurisdiction" to enter the award because the worker had failed to press a § 28 reopening claim by proper motion and to prove a change in his physical condition arising since the last prior order and (2) a heart transplant is an organ substitution procedure that is not comprised within the terms of the last prior (October 20) order requiring the employer to pay all "reasonable and necessary medical expenses incurred."
II
THE TRUE LEGAL ATTRIBUTES OF THE APPLICATION UNDER REVIEW
A. The worker's theory
The worker asserts that the expenses of transplant procedure were correctly found, in the order on review, to have been included within the sweep of health services directed to be furnished by the terms of the October 20 award, inasmuch as that order was treated below by the parties as one which authorized continuing postaward medical treatment. We reject this argument as unfounded and unsound.
A permanent disability award constitutes a solemn adjudication that the worker's healing period has come to an end and his condition or state of health has reached the very optimum that is then medically attainable. The law assumes t
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