Gee v. All 4 Kids

Gee v. All 4 Kids

149 P.3d 1106

2006 OK Civ App 155

Claimant suffered a soft tissue back injury while working for employer. Claimant’s treating physician placed Claimant on a light duty restriction, and employer offered the claimant no light duty within the medically imposed restrictions. Claimant presented competent medical evidence demonstrating her TTD from the date of injury through completion of rehab. The trial court, despite Claimant’s uncontroverted evidence of continuing TTD, awarded Claimant only 8 weeks of TTD and additional medical treatment.

On appeal, Claimant challenges 85 O.S. § 22(3)(d)’s “8 week soft tissue injury” limitation of TTD benefits on constitutional grounds as a deprivation of a property interest without due process of law. Claimant also asserts the court’s award of 8 weeks of TTD benefits is erroneous because of a specific reference in § 22(3)(d) to § 22(2)(b) which allows up to 300 weeks of TTD benefits for a soft tissue back injury.

In response to Claimant’s constitutional argument, the Appellate Court held that Claimant had no vested right in any particular workers compensation remedy prior to her injury, and that the legislature was not limited in its ability to restrict the amount of recoverable benefits for soft tissue injuries.

The Appellate Court moves on to discuss the conflict between the amount of TTD benefits recoverable under § 22(3)(d) and those recoverable under § 22(2)(c). Under § 22(3)(d), nonsurgical soft tissue injuries occurring after January 1, 2003 shall be compensated at a rate of 70% of the employee’s average weekly wage and shall not exceed 8 weeks. If the claimant has been recommended for surgery, an additional period of benefits may be awarded, but shall no exceed an additional 16 weeks. § 22(3)(d) goes on to say that in all cases of soft tissue injury, the employee shall only be entitled to TTD as set out in § 22(2)(c). § 22(2)(c) states that for injuries occurring after November 1, 1997, total payments of compensation for TTD may not exceed a maximum of 156 weeks except for good cause shown and shall not exceed 300 weeks in the aggregate. Thus, the 8 week limitation of § 22(3)(d) directly conflicts with the 300 week limitation of § 22(2)(c).

The Appellate Court refers to rules of statutory construction enumerated in Earnest, Inc. v. LeGrand, (1980 OK 180, ¶6, 621 P.2d 1148, 1151), which generally states that the provision that comes last in position wins. The Appellate Court concludes that because § 22(3)(d) is last in position and the reference to § 22(2)(c) is last in subsection 3, that the reference to § 22(2)(c) is controlling and permits a TTD award for up to 300 weeks in soft tissue injury cases.

The Appellate Court holds that the trial court was not constrained by § 22(3)(d) to award a maximum of 8 weeks of TTD for Claimant’s injury and was statutorily authorized to award TTD benefits to the extent authorized by § 22(2)(c). Trial court’s order is vacated and the cause is remanded for an award of TTD consistent with the medical evidence and § 22(2)(c) as has been construed by the Appellate Court.

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