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Knight v. Allied Signal11/10/1998
The workers' compensation trial court entered an order finding that Claimant Janice Knight was employed by Allied Signal (Employer) on May 16, 1991, when she sustained an accidental personal injury due to cumulative trauma to "the HERNIAS (right and left)" arising out of and in the course of her employment. The trial court further found that "reasonable and necessary medical treatment" by Dr. M. and Dr. G was to include surgery. That order was unanimously affirmed by a three-Judge panel.
After Dr.G performed another surgery on Claimant during which he installed "Marlex mesh" to correct her hernias, Claimant filed a Form 9, seeking permanent total disability (PTD), or in the alternative, permanent partial disability (PPD), medical maintenance, vocational retraining and temporary total disability (TTD) from March 16, 1991 to June 1, 1994. Employer specifically denied entitlement to TTD benefits for that period. Subsequent to both parties' numerous objections to the medical reports, the trial court ordered an independent medical examination by Dr. T. Thereafter, the case proceeded to trial.
The trial court entered an order awarding Claimant 14 weeks of TTD benefits and 14% PPD due to hernia (over a prior 1% disability), denying continuing medical treatment, and reserving the issue of vocational retraining. Apparently agreeing with Employer's statutory interpretation, the trial court specifically found that the "Marlex mesh" used to repair Claimant's hernias was not a "artificial reinforcement or device as contemplated by 85 O.S. § 22."
In her first proposition of error, Claimant argues that the trial court incorrectly interpreted the hernia paragraph within 85 O.S.1991 § 22(3), which provides:
"Hernia: In case of an injury resulting in hernia, temporary total compensation for fourteen (14) weeks, and the cost of an operation shall be payable; provided, in any case where the injured employee has been twice previously operated for hernia in the same area and it is established by opinion of a competent surgeon that further surgery in the same area will not result in full relief of the condition, the Court may then award compensation for disability resulting therefrom under paragraph 1 of this section, or, if not totally and permanently disabled, then under the "Other Cases" subdivision following, and, after a second surgical attempt to repair hernia, the injured may not be required to submit to further surgery in an effort to relieve the disability thereafter existing; provided, further, the use of any artificial reinforcement or device, with or without surgery, shall not be the basis of reducing extent of disability to be awarded." (Emphasis added).
Contrary to Dr. T's opinion that "Marlex mesh" is not an artificial device because the phrase "artificial reinforcement or device" means an external device such as a hernia belt or other constrictive device used to keep a hernia reduced, Claimant argues that the emphasized phrase within § 22(3) does not limit the term "artificial" to that interpretation. Considering the basic definition of "artificial" is "man-made; not natural," Claimant claims that Dr. T's admissions that the Marlex mesh is "synthetic" and "not natural" is undisputable proof that the Marlex mesh is within the definition of "artificial." Therefore, she claims the trial court's finding that the Marlex mesh is not an artificial reinforcement or device is clearly wrong.
Employer contends that Claimant's interpretation extends the definition of an artificial device beyond that which the Legislature contemplated in § 22(3), arguing that " arlex mesh is a medical instrument used to surgically repair an operable hernia.
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