--- Am. Tribal Law ----, 2017 WL 8180613 (Cherokee Sup.Ct.)
Only the Westlaw citation is currently available.
Supreme Court of the Cherokee Nation.
Janet ARNOLD, Claimant/Appellant,
CHEROKEE NATION ENTERTAINMENT, Respondent/Appellee, and Hudson Insurance Company, Insurance Carrier.
Case No. SC-2016-11
October 9, 2017
FILED October 10, 2017
APPEAL FROM THE DISTRICT COURT OF THE CHEROKEE NATION, TAHLEQUAH, OKLAHOMA, CV–12–212, HONORABLE BART FITE, TRIAL JUDGE, AFFIRMED
Attorneys and Law Firms
For Janet Arnold: Bryce A. Hill, 1511 S. Delaware Ave., Tulsa, Ok 74104, firstname.lastname@example.org
For Cherokee Nation Entertainment and Hudson Insurance Company: Jay L. Jones, Connie M. Wolfe & Associates, 501 N. Walker, Suite 140, Oklahoma City, Ok 73102, jonesj@CMWALAW.COM
Before: John C. Garrett, Chief Justice, Lynn Burris, Justice, Angela Jones, Justice
Opinion by: Mark L. Dobbins, Justice
STATEMENT OF CASE
Janet Arnold alleged an injury to both hands as a result of cumulative trauma work related exposure; her last date of exposure being May 24, 2011. An arbitration order was entered on January 30, 2012, by Arbitrator Keele. Keele found that Arnold had sustained a work related injury to both hands. Arnold was examined by Dr. Chekofsky at the request of Cherokee Nation Entertainment (CNE) prior to arbitration. Dr. Chekofsky’s finding was that her injuries could not be determined to be work related and were totally adversarial to Arnold’s claims. Temporary Total Disability benefits were awarded to Arnold with CNE to provide medical treatment. The Arbitrator’s ruling stated the treatment shall be, “... with a physician to be selected by the employer.” The Arbitrator was articulating the statutory mandate that CNE has the authority to select the treating physician, found in Title 85 § 26(A) and (E) of the 2010 version of the Cherokee Act.
CNE then selected as Arnold’s treating physician, Dr. Chekofsky, to which Arnold refused to receive treatment. The Court affirms the ruling by District Judge Fite on all issues. The primary issue is that of the application of Title 85 § 26(A) and (E) by CNE in the selection of Dr. Chekofsky as the treating physician.
The District Court found that under Title 85 § 26(A) and (E) of the 2010 version of the legislative act, CNE had an absolute right to select Arnold’s treating physician after arbitrator found the claim compensable and she was in need of medical treating.
The Supreme Court of the Cherokee Nation in reviewing a statute must interpret the statute by giving it a literal interpretation. This court is wary of creating a law or reforming a law that is unambiguous on its face. That is a role reserved to the elected legislative branch.
Arnold does not object to its content, but to its application by CNE. In the instant case, CNE chose as Arnold’s treating physician Dr. Chekofsky. Dr. Chekofsky, during arbitration submitted a report adversarial to Arnold in an attempt to deny an award.
The black letter of the law was followed by CNE, but this Court feels its application was lacking. This Court finds its application smacks of unjust treatment and a possible breach of good faith and unfair dealing.
In a situation where one is recovering from physical injury, the patient must have total confidence in their doctor for a full and complete recovery. The appointment of Dr. Chekofsky, though allowed per the statute, seems questionable at best and gives the appearance of unfairness. This practice seems to be in contradiction of supporting the culture, heritage and traditions of the Cherokee Nation.
Despite this admonition, CNE was within their right to select the treating physician and the case is affirmed; but this Court will give strict scrutiny should this questionable practice continue.
IT IS SO ORDERED this 9th day of October, 2017.
--- Am. Tribal Law ----, 2017 WL 8180613