When most check cashers think of Workers Compensation claims, the usual array of broken arms, skull fractures, and sprained ankles come to mind.
But Workers Compensation is usually much more expansive than mere broken body parts. Recently, the issue of the mental trauma that can accompany two closely spaced check cashing store robberies was taken up by Oklahoma’s high court.
An Oklahoma check cashing store was robbed twice: the first time on Dec. 31, 2008, and the second on April 7, 2009. A woman, whose first name was Leslie, was the branch manager and the only employee on the premises during both robberies.
The first was an armed robbery by a man wearing something covering his face and a ball cap.
Leslie said that during that robbery, the man made her go into a back room and sit down when he pulled a gun out of his back pocket. She said she thought she “was dead.”
After he left, she discovered the store’s panic button was not working and telephoned the police.
In the second robbery, during which Leslie was ordered to turn off the security alarm, two men stole all the cash on hand in the office.
These men did not have guns. However, one of the robbers threw an empty plastic cash drawer at Leslie’s head.
Leslie said that the cash drawer hit her in the head, knocked her into the filing cabinets, and caused her to fall backward over a fan, onto the floor.
When they left, she locked the door and called 911. Leslie did not return to work for the check casher after the second robbery.
Leslie filed a Workers’ Compensation claim for a head injury and psychological overlay for post-traumatic stress disorder, depression, and post-traumatic headaches as a result of the robberies on the check casher’s premises.
She filed her claim on Oct. 19, 2009, alleging an accidental injury arising out of and in the course of her employment.
She sought permanent total disability as a result of her injuries, claiming she was unable to work or to be out in public.
The trial court heard testimony, admitted evidence from both parties, and then ruled that Leslie was permanently totally disabled due to injury to her head and psychological overlay.
The trial court found she was struck in the head with a cash drawer and developed post-traumatic headaches. Moreover, the trial court noted that Leslie had severe PTSD and depression.
As a result of her head injury combined with psychological overlay, the trial court agreed with Leslie’s medical expert that she was permanently totally disabled and would be unable to return to the work force in any form or capacity whatsoever. The trial court also agreed that vocational rehabilitation and retraining was not an option for Leslie.
In addition, the trial court awarded Leslie continuing medical maintenance in the nature of four annual office visits and prescription medication under the care of a psychiatrist.
Objects to Report
The check casher objected to the report of Leslie’s medical expert. The check casher timely sought review of the trial court’s order before a three-judge panel of the Workers’ Compensation Court (compensation court).
One of the issues the check casher raised as an error was that the finding of compensable injuries to Leslie’s head and psychological overlay was contrary to the law and against the clear weight of the evidence and should be reversed.
Further, the check casher claimed the trial court determination that Leslie sustained a head injury was not supported by her testimony or treatment records, that Leslie’s medical records failed to recognize long-standing migraines, and that the trial court’s finding should be reversed.
On May 16, 2012, the three-judge panel unanimously affirmed the trial court’s order, finding it was “not against the clear weight of the evidence nor contrary to the law. . . .”
The check casher appealed to the Oklahoma Court of Civil Appeals. On Nov. 19, 2012, the appeals court held that the permanent total disability award was against the clear weight of the evidence and reversed the trial court’s order.
The case was then moved up to the Oklahoma Supreme Court, which granted the petitions for certiorari filed by Leslie as well as the check casher.
The Supreme Court noted that in the opinion that was under review, the appeals court ruled that a claim submitted by an employee for compensation for permanent disability was required to be “supported by competent medical testimony . . . which must include an evaluation by the treating physician or an independent medical examiner if there was no evaluation by the treating physician.”
The appeals court also ruled that Leslie’s claim for permanent total disability was not supported by a medical report from a treating physician or an independent medical examiner.
The order of the Workers’ Compensation Court finding, said the appeals court, that Leslie was permanently totally disabled was not supported by competent evidence and therefore it must be vacated.
Change in Language
The Oklahoma Supreme Court noted that in a footnote the appeals court explained that a 2005 amendment in effect at the time of Leslie’s injury removed the language previously found stating “a physician, including, but not limited to,” in reference to an independent medical examiner or a treating physician.
The appeals court indicated that although the prior statute’s language was broad enough to include a medical expert’s testimony, the 2005 statute required the report of the treating physician or the independent medical examiner to “support” the award given.
In essence, said the Supreme Court, the appeals court held the amendment eliminated the medical expert as a witness who could give “competent medical testimony” on which to base an award.
Because the appeals court found the treating physician did not give an opinion that Leslie had permanent total disability, it held the trial court’s award could not be sustained.
Intent of Statute
The Supreme Court said it did not believe, however, that the statute was intended to limit the testimony to only the treating physician or an independent medical examiner.
The statute required only that the award be supported by “competent medical testimony which shall be supported by objective medical findings” and which shall “include” an evaluation by the treating physician or an independent medical examiner if there were no evaluation by the treating physician.
The appeals court’s requirement that the permanent total disability award must be “supported” by the treating physician or a court appointed independent medical examiner improperly restricted the trial court from considering any evidence that was “competent medical testimony”.
The Supreme Court said it had previously discussed this very issue in the 2007 case of Conaghan v. Riverfield Country Day School, in which it ruled that a summary facial reading of the statute placed the responsibility for deciding disability with the Workers’ Compensation Court.
The statute mandated that the compensation court must have medical evidence from the treating physician or an independent medical examiner for each claim, and it permitted the compensation court to have medical evaluations and opinions addressing compensability and permanent impairment from other physicians.
It assigned the same meaning to the term “physician” as set out in another section, but added that “physician” included a person licensed by another state who would be qualified to be a licensed physician under the laws of Oklahoma.
The appeals court’s holding, said the Supreme Court, came very close to requiring the trial court to award compensation “within the range” of opinions of the treating physician and an independent medical examiner.
This was formerly required by the statute that the Oklahoma Supreme Court held to be unconstitutional because it restricted the Workers’ Compensation Court’s determination of impairment and disability.
The Supreme Court ruled this invaded the court’s independence and discretion to accord the appropriate weight or evidentiary value to the “objective medical evidence” as the trier of fact.
The trial court must be free to find the facts and apply the law to the facts. The appeals court’s holding also improperly restricted the trial court’s consideration of competent evidence to that of the treating physician who found Leslie did not have permanent total disability.
Leslie had testified she had a problem with headaches, which she associated with the head injury and “triggered” her to recall the robberies, which led to severe headaches. She also said she had developed memory problems which she did not have before the robberies.
She said she rarely left her home unless someone went with her. She slept with a firearm. She obtained a “conceal and carry” permit after the second robbery.
She stayed awake while her husband slept and slept when he was awake.
She had received, and at the time of trial was still receiving, psychiatric treatment for her PTSD. She also developed several phobias.
On cross-examination, Leslie said she had only previously taken antidepressants after the birth of her baby. She had postpartum depression and was going through a divorce at the time.
She stated she had migraines before the robberies during her pregnancies. She also stated she was in a car accident between the time of the two robberies and had sustained a neck and back injury that caused knots in the back of her neck and tension headaches. Although surgery was recommended, she declined the operation.
Leslie also testified she had gone out of town by herself for particular events.
She explained that in April 2010, she went to Kansas, a two-and-a-half-hour drive, because her father had a heart attack. In May 2010, she went to visit her parents in Kansas “for a birthday present.” In June 2010, she traveled to her daughter’s graduation but did not go alone.
She only did yard work if her husband was home. If he was away, a neighbor across the street watched her through the window.
She had held a job, working in a church flower shop, but said she quit because the owner of the shop wanted her to branch out to make deliveries beyond the local area.
She had not told her boss that she took her husband or a family member along when she made deliveries.
Leslie said she quit and never told her boss of her delivery practices.
The written medical opinion of Leslie’s expert medical witness was attached to his deposition. The medical expert diagnosed Leslie with post traumatic headaches, depression and PTSD. He gave his opinion that she had permanent total disability. He stated he did not believe Leslie would be able to return to work because of her PTSD.
He based this opinion on his examination of Leslie; the medical opinions of other doctors, including the psychiatrist who was treating her at the time who stated she could not work; and his review of a packet of reports and evaluations from the office of a psychologist and his team who treated Leslie for approximately two years.
In addition, the medical expert considered the report of Leslie’s witness, a vocational rehabilitation counselor who evaluated her, and the evaluation of the check casher’s witness.
The rehabilitation counselor’s report found her to have transferable skills, but because of her PTSD and the medications she was taking, he believed retraining would not be an option for Leslie.
However, Leslie’s medical expert stated he believed the medications she was taking were reasonable and necessary and in accordance with the diagnoses she had been given.
She had also developed several phobias, which led the expert to think she would not be able to return to the work force.