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Baxter v. Montgomery Exterminating6/11/1998
COURT OF APPEALS OF OKLAHOMA, DIVISION NO. 3
Opinion Services
BAXTER v. MONTGOMERY
___ P.2d ___
Decided: March 3, 1998
PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE JUDGES OF THE WORKERS' COMPENSATION COURT
VACATED IN PART, SUSTAINED IN PART AND REMANDED
Petitioner, Joe Lynn Baxter (Claimant), seeks review of a Workers' Compensation Court order which, among other things, awarded Respondent, Montgomery Exterminating (Employer), credit for overpayment of temporary total disability compensation, and limited continuing medical maintenance to a period of six months.
FACTUAL BACKGROUND AND CASE HISTORY
Claimant injured his back while on the job with Employer in May 1995. He continued to work until December 1995, when he said he could not work any longer because of the pain. In the interim he had been treated by his primary care physician, Dr. R.G., under his health care benefits. Employer began temporary total disability compensation payments on December 12, 1995.
Claimant continued under the care of his primary care physician, who referred to him to Dr. L., a neurosurgeon. Dr. L. saw Claimant on January 12, 1996. Dr. L.'s report shows he related to Claimant that his examination was "entirely within normal limits" and that it was "perfectly safe" for Claimant to return to work. Dr. L. advised Claimant to use regular physical exercise and nonprescription medications to control pain.
After he had seen Dr. L., Claimant was nonetheless continued on physical therapy and was given a release from work by his treating physician. Claimant forwarded the release to the State Insurance Fund, Employer's insurer. Claimant also filed his Form 3 claim in January 1996. Medical care was provided under Workers' Compensation coverage from that time.
After January 1996, Claimant was referred to Dr. A. for pain management. Dr. A. prescribed a pain clinic, physical therapy and "facet blocks". Employer refused to pay for a scheduled facet block in November 1996, and referred Claimant to see Dr. W.G. Claimant saw Dr. W.G. on November 6, 1996. Dr. W.G. opined Claimant had 0% permanent partial disability, that Claimant was not temporarily totally disabled at that time, and that Claimant required no further medical treatment.
Employer discontinued Claimant's temporary total disability compensation payments shortly after receiving Dr. W.G.'s report. On December 4, 1996, Claimant filed a Form 9, Motion to Set for Trial, on the issue of improper termination of compensation. Claimant asserted Employer had not provided him with either a Form 11, Motion to Terminate Temporary Compensation, or a medical report to support such termination.
Employer then filed its Form 11 on December 19, 1996, which also requested credit for overpayment of temporary total disability compensation. Employer listed Dr. W.G. as the medical witness in support of its motion. Although it is not expressly stated in the record, it appears Employer reinstituted temporary compensation after Claimant's motion and continued payments until February 24, 1997.
At trial, the parties represented to the court that the issues to be decided were permanent partial disability, continuing medical maintenance, vocational rehabilitation evaluation, and Employer's claim for overpayment of temporary total disability compensation. The court found Claimant sustained 2% permanent partial disability, but denied Claimant's requests for vocational rehabilitation evaluation and facet injections from Dr. A. The court ordered Employer to furnish Claimant with continuing medical mainte
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