Pawnee Municipal Hospital v. Cunningham , 985 P.2d 189 ( 1999 )

ADAMS, Judge:

¶ 1 Claimant Nancye Cunningham, while a respiratory therapy aide employed by Pawnee Municipal Hospital (Employer), fainted in a hospital hallway and struck her head on the floor, allegedly causing injury to her jaw, neck, shoulders and back. Just prior to this incident, Claimant had been working in the emergency room holding an oxygen mask in place for a newborn who was also being warmed by heating lamps.¹ Claimant stood next to the baby’s bed, holding the mask in place over the baby’s face, for almost two hours in temperatures she estimated to be in excess of one hundred degrees. After she was relieved, she began walking toward her office to obtain money to buy her lunch and fainted, falling and striking her head on the floor. The injuries she sustained in that fall are the subject of this action.

¶ 2 Although it initially authorized medical treatment and paid Claimant temporary total disability benefits, Employer eventually denied Claimant’s admitted injuries arose out of and in the course of her employment. According to Employer, Claimant’s fainting was actually a syncope episode caused by a blood pressure medication, Normodyne, which she had just started taking a few days before this incident.

¶ 3 After trial, the trial judge denied benefits, concluding Claimant had not sustained an accidental injury arising out of and in the course of her employment. Claimant filed an en bane appeal, and the appeal panel vacated the trial judge’s order, finding that order against the clear weight of the evidence and concluding Claimant had sustained such an injury, and remanded the case back to the trial judge to determine benefits. Employer filed a Petition for Review with the Oklahoma Supreme Court. The Court dismissed that review proceeding, concluding the panel’s order was not a “reviewable disposition.” Following that dismissal, the trial judge awarded Claimant benefits based on this injury.² Employer filed an en banc appeal, and the panel sustained the trial judge’s order, concluding it could not reexamine the legal conclusions and factual findings made by the previous panel.

¶ 4 In this review proceeding, Employer contends (1) the panel erred in not reexamining the previous conclusions and findings and (2) there is no competent evidence that Claimant’s injury arose out of and in the course of her employment. We address the arguments in that order.

¶ 5 According to Employer, the second panel was not bound by the findings and conclusions of the first panel because the Supreme Court determined the first panel’s findings were not “final.” Whether the second panel could have issued different findings is of no consequence here. As noted by the Supreme Court in its order dismissing the first review proceeding, Employer may “seek review of the determination of the trial judge and the three-judge panel that the accident arose out of and in the course of [Claimant’s] employment in a subsequent review proceeding brought after the next reviewable disposition in this cause.” Employer has exercised that right, and we will review the findings and conclusions of the first panel, unchanged by the second panel, to determine whether they are supported by any competent evidence. See Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548.

¶ 6 Employer contends the order is unsupported by any competent evidence because Claimant’s medical evidence is insufficient to establish that the heat and two hours of standing holding an oxygen mask over a newborn’s face contributed causally to Claimant’s fall.³ Although Claimant’s medical evidence recites a history of Claimant fainting from excessive heat and expressed the opinion that Claimant was injured in an “on-the-job” accident, Employer says the evidence must otherwise attribute some “medical” reason for the fainting episode, particularly in light of the evidence that Claimant was on Normodyne. We disagree.

¶ 7 “The opinion of a medical expert need not be given in categorical terms nor in the precise language of the statute. A trial tribunal’s award rests on competent evidence when it is supported by the general tenor and intent of the medical testimony.” Bama Pie, Ltd. v. Raes, 1995 OK 122, ¶ 11, 905 P.2d 811, 815. (Footnote omitted, and emphasis in original). Reading Claimant’s medical reports as a whole, the panel could properly conclude that the expert expressed an opinion that the conditions under which Claimant had been working contributed to her fall.

¶ 8 Any complaint that this evidence did not consider the effect of the Nor-modyne is essentially a complaint about an inaccurate history. A party objecting to a medical opinion based upon inaccurate history has the burden of demonstrating either the witness did not consider a fact assumed to be material or that the omitted fact is indispensable and that its omission is fatal to the probative value of the expert’s opinion. Bostick Tank Truck Service v. Nix, 1988 OK 128, 764 P.2d 1344. Employer did not cross-examine Claimant’s medical expert. It demonstrated neither that Claimant’s expert did not consider the potential effect of Normo-dyne, nor that such a consideration, if absent, would have changed his opinion.

¶ 9 The record contains competent evidence supporting the conclusion that Claimant sustained an accidental injury arising out of and in the course of her employment. The order is sustained.

SUSTAINED

HANSEN, J., concurs; BUETTNER, P.J., dissents with separate opinion.

2 . Employer's arguments all relate to the finding of compensability. It does not take issue with any findings relating to benefits.

3 . This argument, and Claimant’s response, assumes that the cause of her fall was a significant factor in determining whether her injury arose out of and in the course of her employment. This writer, at least, is not willing to make such an assumption without further inquiry. We need not reach this issue because we conclude there was competent evidence relating the cause of the fainting to her employment.