author: JERRY L. GOODMAN, Presiding Judge.

text:
    2003 OK CIV APP 65
    Harvey Leon ELLER, Petitioner, v. COUNTY OF PITTSBURG and National American Insurance, Respondents.
    No. 97,973.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    March 4, 2003.
    Rehearing Denied June 23, 2003.
    Victor R. Owens and Daryl G. Alphin, Vie-tor R. Owens & Associates, Tulsa, OK, for Petitioner.
    Kristin Blue Fisher and L. Brad Taylor, Feldman, Franden, Woodard & Farris, Tulsa, OK, for Respondents.
   Opinion by

JERRY L. GOODMAN, Presiding Judge.

T1 This is a proceeding to review an order of the Workers' Compensation Court awarding the claimant, among other things, benefits for permanent partial disability. The claimant contends the trial court erred as a matter of law in relying, in part, upon evidence which failed to comply with a mandatory provision of the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed.1994), hereinafter, AMA Guides Based upon our review of the record and applicable law, we sustain the order.

I

12 Claimant Harvey Leon Eller filed a Form 8 alleging he severely injured his back, left arm, left shoulder, neck, and both hips and legs when a chain saw he was operating "kicked back" during the course and scope of his employment as a brush cutter for employer, County of Pittsburg, Oklahoma. The employer admitted that the claimant sustained an accident as alleged, however it disputed the extent of the resulting injuries. Specifically, the employer argued that any neck and back complaints the claimant may have were secondary to ongoing symptoms related to previous injuries the claimant sustained while he was employed by another employer. The trial court awarded the claimant benefits for temporary total disability, ordered the employer to provide the claimant with all reasonable and necessary medical care and treatment, and reserved the matter of permanent disability.

T3 On August 15, 2001, the claimant underwent a cervical diskogram which involved injection of contrast material on three spinal levels. Films were then taken, which revealed degeneration, leakage with bulging disk space, internal disk derangement, and loss of height which produced radicular pain to the claimant's left arm. The claimant was diagnosed with a herniated disk at

T4 On October 1, 2001, the claimant underwent a microdiskectomy with anterior plating and fusion at C6-C7. The procedure involved placement in the disk of bone harvested from the claimant's left hip.

T5 Thereafter, on December 16, 2001, the claimant underwent a four-level lumbar dis-kogram. The procedure did not result in a recommendation for lumbar surgery.

T6 In February 2002, the claimant filed a Form 9 motion to set for trial. He framed the issues as permanent partial disability, continuing medical maintenance, and disfigurement. The employer disputed the nature and extent of the claimant's injuries, denied that he was entitled to medical maintenance, and sought a credit for overpayment of temporary benefits.

T7 The trial court held a hearing on the matter June 5, 2002. The claimant testified as to the nature of his physical ailments and stated that he had previously injured his neck and back resulting in surgical fusions. He presented the narrative report of his medical expert who stated that:

I would apportion 30% permanent impairment due to any prior pre-existing impairment to the cervical spine giving this patient 39% permanent impairment to the whole person solely as a result of the injuries to the cervical spine sustained while working for Pittsburg County....
In my medical opinion and within a reasonable degree of medical certainty, I would apportion 30% permanent impairment due to any prior pre-existing impairment to the lumbosacral back giving this patient 35% permanent impairment to the whole person solely as a result of the injuries to the lumbosacral back sustained while working for Pittsburg County....

The expert opined that the claimant had sustained 13 percent whole person impairment due to "[flour-level awake lumbar dis-cogram with dise injection." The expert noted the claimant's disfigurement at the bone donor site, and concluded that the claimant is "100% permanently totally disabled and economically unemployable until [sic] as a direct result of a combination of his injuries." The trial court overruled the employer's probative value objection to the report.

T8 The employer presented the narrative report of its medical expert who concluded that the claimant had sustained work-related injuries resulting in permanent partial impairment to the whole body consisting of 16 percent to the cervical spine and 0 percent to the lumbosacral spine, left shoulder, left arm, right or left hip, or right or left leg as a result of his work-related accident. He noted that the claimant had undergone a "lumbar spine diskogram" but did not assign any impairment as a result of the procedure. He stated that the claimant's temporary disability had ended, he did not need further medical care or continuing medical maintenance, and he may return to work.

T9 In an order filed June 24, 2002, the trial court awarded the claimant permanent partial disability benefits for compensable injuries to his neck, and back. The trial court found:

[the] claimant sustained 21 percent permanent partial disability to the neck (over and above a pre-existing 18% permanent partial disability to the neck due to 1992 cervical fusion) and 5 percent permanent partial disability to the back (over and above a pre-existing 15% permament partial disability to the back due to surgery in 1998), which is 26% to the body as a whole, for which claimant is entitled to compensation.... (Emphasis added.)

The court denied the claims for injuries to the left shoulder and left hip, and for continuing medical maintenance. The court granted the employer's claim for overpayment of temporary total disability benefits. The claimant seeks our review.

II

T 10 The claimant contends the trial court erred as a matter of law in relying upon evidence submitted by the employer. The argument is that the opinion of the employer's expert failed to comply with mandatory provisions of the AMA Guides. We disagree.

111 Title 85 0.§.2001 § 3(16), states, in relevant part, that "any examining physician shall only evaluate impairment in accordance with the latest publication of the American Medical Association's 'Guides to the Evaluation of Permanent Impairment? in effect at the time of the injury." The fourth edition of the Guides was in effect when the claimant sustained his work-related injury. Table 75 provides the estimated diagnosis-related impairment percentages to be combined with the impaired range of motion and neurological deficit in evaluating a claimant. Table T5(II)(D) establishes an 8 percent whole body impairment for "[slurgically treated disk lesion without residual signs or symptoms; includes disk injection." (Emphasis added.) The claimant argues that because it is undisputed that he underwent a procedure where dye was injected into his lumbar spine, the court erred in relying upon the report of the employer's expert who noted the procedure but did not assign a corresponding impairment rating. As a result, he argues he is entitled to an additional 8 percent impairment above the 5 percent he was awarded for injury to his back.

{12 The employer, on the other hand, argues that the procedure performed on the claimant's lumbar spine was not a surgical treatment of the elaimant's spine, as required by Table 7T5(II)(D), but was a diagnostic test performed to determine whether the claimant was a candidate for surgical treatment. We agree with the employer.

1 13 The four-level lumbar diskogram was performed by a radiologist associated with Spine Diagnostic Group, Inc. The Procedure Note prepared by the radiologist states that during the procedure needles were inserted guided under flouroscopy. Once the needles were in position, "Idlye was injected into each dise under direct flouroscopic visualization." During the procedure the radiologist stated that the "patient's pain response to the injection, volume of injection, endpoint of injection, morphology of the dise, and the pressure to injection were all recorded." The radiographic report contained in the note states that "AP and lateral views of the lumbar spine show needles in the nuclear region of the L1-2, L2-8, L8-4 and L4-5 discs" revealing "nuclear injection, diffuse internal dise derangement" at each disk. The radiologist noted that the "patient tolerated the procedure well with no complications."

4 14 The claimant's medical expert characterized the procedure and its results as follows:

Due to the persistence of his lumbar symp-tomatologies, the patient was referred once again to Dr. Eckman undergoing a disco-gram revealing evidence of painful dise at L1 L2, L2 L8 and probable recess stenosis at L4 L5. These findings did not result in recommendations for additional lumbar surgery. (Emphasis added.)

The expert's report, indeed the appellate record, is devoid of any indication that the dis-kogram procedure was a surgical treatment as contemplated by the Guides In fact, based on the results of the diskogram, no further surgical treatment of the claimant's lumbar spine was recommended and none was performed. Nonetheless, the claimant's expert recommended that 18 percent impairment be awarded based on a "[flour-level awake lumbar discogram with dise injection."

15 We agree with the employer's conclusion that the "[cllaimant's theory that any worker who undergoes diagnostic testing on the back in the form of a diskogram would automatically be entitled to an award of PPD is clearly an unreasonable interpretation of the AMA Guides." We conclude that a reasonable interpretation of Table T5(II)(D) is that the Guides recommends additional impairment for the surgical treatment of a disk, including disk injection for treatment purposes, as opposed to diagnostic purposes. The claimant's interpretation could have a chilling effect on the availability of diagnostic procedures which are necessary to evaluate a claimant's need for corrective surgical treatment.

TII

{16 We hold the order under review is supported by competent evidence. The order is therefore sustained.

17 ORDER SUSTAINED.

REIF, J., and RAPP, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    2003 OK CIV APP 63
    STATE of Oklahoma, ex. rel. DEPARTMENT OF HUMAN SERVICES, on behalf of Jill C. SMITH, Plaintiff/Appellant, v. Paul Allen VIGIL, Defendant/Appellee.
    No. 97,339.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    May 2, 2003.
    Certiorari Denied July 2, 2003.

      Barry K. Roberts, Norman, OK, for Plaintiff/ Appellant.
    David W. Echols, M. Eileen Echols, Oklahoma City, OK, for Defendant/Appellee.
   OPINION

CARL B. JONES, Judge.

'[ 1 Plaintiff/ Appellant, Jill C. Smith (Mother), appeals from an order of the trial court awarding custody of the parties' minor child to Defendant/Appellee, Paul Allen Vigil (Father). Because this Court finds the trial court's order is not against the clear weight of the evidence, it is affirmed.

T2 Mother and Father were never married. Their daughter was born August 17, 1994. In 1998, the Department of Human Services (DHS) instituted an action against Father on behalf of Mother to determine Father's paternity of the child and to collect child support. The trial court entered a decree on November 1, 1998, establishing Father's paternity and ordering Father to pay child support. Although the actual decree establishing paternity is not a part of the appellate record, the parties do not controvert that the decree is silent as to the issue of legal custody of the child, nor is it controverted that Mother has had physical eustody of the child since her birth. In February, 1999, Father sought liberal visitation with the child. The trial court granted Father's request in March, 1999. On May 7, 1999, Mother filed a motion to suspend Father's visitation. This motion was denied. On July 3, 2000, Father filed an application for emergency ex parte temporary order requesting the court to award Father with child's custody. This application was denied. Thereafter, on July 21, 2000, Father filed a motion to modify custody. In his motion to modify, Father averred the court entered an order establishing paternity, child support and back child support, but did not "officially" award custody to Mother although she has been in the past and continues to act as custodial parent of the minor child. Father also alleged there has been a substantial, material and permanent change in conditions such that it is in the best interests of the minor child to modify the paternity order and award custody of the child to Father.

13 The trial on the custody matter was held August 24 and November 21, 2000. On November 21, 2000, the trial court sustained Father's motion to modify custody basing its decision on the following findings:

a. - Physical and verbal abuse has occurred in the home of the Plaintiff/Mother;
b. Abusive corporal punishment in the home of the Plaintiff/Mother;
c. Underage drinking in the home of the Plaintiff{/Mother;
d. Violence in the home of the Plaintiff/ Mother;
e. Fires in the home of the Plaintiff/Mother rendering the home unsafe;
f. Plaintiff/Mother, without good cause, removed the minor child from a gifted and talented program; and
g. The home of the Plaintiff/Mother is unstable as to the occupancy of same.

{4 Mother was granted visitation rights according to an attached schedule and was ordered to pay child support to Father according to the Oklahoma Child Support Guidelines. The journal entry memorializing the trial court's custody determination was entered on January 11, 2002. DHS appeals from this order.

15 In order to apply the appropriate standard of review, this Court must determine if the instant action is an initial custody determination or a modification of a custody order. The parties' pleadings and the trial court's journal entry identified this matter as the modification of a custody order. In the appellate brief, DHS urges this is a modification proceeding because it was uncontroverted that DHS has had physical custody of the child since her birth Further, DHS urges 10 0.8.2001 $ 6 conclusively establishes that custody of a child born out of wedlock is placed with the mother as a matter of law. Section 6 provides: "Except as otherwise provided by law, the mother of an unmarried minor child born out of wedlock is entitled to the care, custody, services and earnings and control of such minor." Thus, DHS urges the trial court erred in modifying the child's custody from Mother to Father because Father failed to sustain his burden of establishing: "1) a permanent, substantial and material change in cireumstances; 2) the change in cireumstances must adversely affect the best interests of the child; and 3) the temporal, moral and mental welfare of the child would be better off if custody is changed" to Father. Daniel v. Daniel, 2001 OK 117, ¶ 17, 42 P.3d 863, 869.

T6 Father argues the instant action was an initial custody proceeding; thus, the trial court's decision must be affirmed if it is supported by the clear weight of the evidence concerning the child's best interests. In the alternative, Father urges even if this was a modification proceeding, he met his burden of showing a permanent, substantial and material change in cireumstances; thus, the decision of the trial court should likewise be affirmed.

T7 DHS contention that the instant action was a modification of custody proceeding is rejected. There can be no change in custody from one parent to the other because there has never been an initial custody determination. Further, § 6 does not support DHS contention. "Section 6 applies so long as the child's father is not involved. When the father and his parental rights are in

issue, § 6 no longer is controlling." Department of Human Services ex rel. Martin v. Chronister, 1997 OK CIV APP 50, ¶ 5 n. 2, 945 P.2d 511, 513; accord Miles v. Young, 1991 OK CIV APP 101, 818 P.2d 1258. In addition, even though the trial court was empowered in the original paternity action to make further provision for custody and visitation based upon the best interests of the child, this was not done. 10 O.S. Supp.1998 § 70(C) (later renumbered as § 70(D) by Laws 1999, c. 396, § 21). However, the trial court did determine Father's paternity and his obligation as a parent to pay child support. Along with that obligation was Father's concomitant right as a parent to custody of the child. Miles v. Young, supra. Accordingly, this Court finds the trial court's order was a custody decision in the first instance; and proof of a change in material and substantial cireumstances was not required. Id. at 1 25, 818 P.2d at 1262.

18 Since this was an initial eustody proceeding, the trial court was authorized to award custody to either parent or both parents jointly, according to the best interests of the child. 10 0.8.2001 § 21.1(A)(1). In reviewing a trial court's initial custody determination, this Court will not reverse the trial court's order unless it is contrary to the clear weight of the evidence concerning the child's best interest, or affected by an abuse of discretion. Damiel, supra at T 21, 42 P.3d at 871. Deference will be given to the trial court's determination of controversial evidence because the trial court had the opportunity to observe the demeanor and hear the testimony of the witnesses and determine the credibility of the testimony. Manhart v. Manhart, 1986 OK 12, ¶ 9, 725 P.2d 1234, 1237. In addition, DHS has the burden on appeal to show the trial court's custody award is erroneous and contrary to the child's best interests. Damiel, supra at T 21, 42 P.3d at 871. Absent a showing that the trial court's decision is against the clear weight of the evidence, its determination is presumptively correct. Carpenter v. Carpenter, 1982 OK 38, ¶ 10, 645 P.2d 476, 480.

T9 DHS alleges the trial court's order changing custody of the minor child was not supported by competent evidence because its judgment was based wholly on hearsay statements allegedly made by the five or six year old child to her Father. The record reveals extensive testimony by Father recounting that the child told him her step-father burned her arm with a cigarette; Mother bruised her bottom; drugs and alcohol were consumed in Mother's home; and violence and underage drinking took place in Mother's home. DHS counsel consistently objected to this testimony, but such objections were overruled. by the trial court.

{10 DHS urges this was error because Father failed to comply with the statutory mandates of 12 0.S8.2001 § 2808.1 for the exception to the hearsay rule. Section 2808.1 provides an exception for a child's statements in criminal and juvenile proceedings which have a "sufficient indicia of reliability so as to render it inherently trustworthy." DHS points to Father's testimony that he had to persistently question the child about the cigarette burn and the bruises on her bottom before she would state how she received same. Father also admitted on cross-examination he had not observed Mother spanking or verbally abusing the child, nor was he present to observe any violence, underage drinking or drug and alcohol abuse in Mother's home. DHS argues the child's uncorroborated out-of-court statements pertaining to such matters should have been excluded as inadmissible hearsay testimony and should not have been the basis for the trial court's decision.

1 11 In contrast, Father argues § 2808.1 is inapplicable because this was not a "criminal proceeding" or "juvenile proceeding." Instead, he urges his testimony recounting the child's statements may be admitted into evidence under 12 0.8.2001 § 2803 and Kerr v. Clary, 2001 OK 90, 37 P.3d 841. In Kerr, the trial court restricted the father's visitation with the parties' minor child. On appeal, the father argued the child's out-of-court statements made to the child's counselor and a DHS employee concerning the father's alleged sexual abuse of the child should have been excluded as inadmissible hearsay testimony. The trial court allowed the statements to be admitted into evidence under § 2808(24). The Supreme Court found the trial court did not abuse its discretion in admitting such testimony because "[the purpose of § 2808(24) is to allow for the admission of hearsay statements not covered by explicit statutory hearsay exceptions but which possess 'equivalent guarantees of trustworthiness. .. .' " Id. at 115, 37 P.8d at 844. However, in the instant case, DHS counters § 28083(24) is inapplicable because the child's statements did not have "equivalent cireumstantial guarantees of trustworthiness."

{12 First, this Court agrees with Father that the exception in § 2808.1 is inapplicable to the instant custody action. This Court also agrees with DHS that it would have been error for the trial court to make its initial custody determination solely on Father's recount of statements made to him by the child because there was evidence demonstrating that the child was not forthright when initially questioned about the bruises and cigarette burn. Notwithstanding, the trial court's decision is otherwise supported by competent non-hearsay evidence; and, accordingly must be affirmed.

{13 Father testified that during a visitation, he saw a perfect round cirele burn on the child's right arm which he believed was a cigarette burn. After DHS' objection was overruled, Father testified the child eventually told him her step-dad burned her with the cigarette. Father's testimony of his observation is direct evidence corroborating the child's explanation for the burn. Father also testified during a visitation and while his wife was bathing the child, his wife observed multiple line bruising across the child's bottom. Father testified he had reason to believe that Mother caused the bruising, and when he questioned the child about these bruises, the child explained she was spanked by Mother because she wanted to give Father's wife a child-made present for Mother's Day. Father additionally testified that during another visitation at Lake Murray, he observed Mother verbally threatening his wife with obscenities and physically grabbing his wife's hair while the child was sitting in a car approximately ten feet away. This evidence supported the trial court's finding of Mother's physical and verbal abusive behavior. In addition, Mother admitted there were two fires in her home within a 24 hour period; that the fire department responded thereto; and repairs were made. Mother also freely admitted she allowed the child to quit the gifted and talented program because the child did not like staying for the after-school program. These admissions supported the trial court's findings as well.

114 The paramount consideration in an initial custody determination is the best interests of the child. Daniel supra. There was competent evidence showing the child's best interests would be served by granting Father custody of the child. Based on this evidence, this Court finds the trial court's decision to award custody to Father was supported by the clear weight of the evidence and was not an abuse of discretion.

1 15 AFFIRMED.

HANSEN, J., concurs, and MITCHELL, P.J., concurs in result.


author: KEITH RAPP, Judge:

text:
    2003 OK CIV APP 61
    Bonita Jean GULLO, (now McDaris), Plaintiff/Appellee, v. Ronald GULLO, Defendant/Appellant.
    No. 97,556.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    June 3, 2003.

      Gary D. Underwood, Tulsa, OK, for Plaintiff/ Appellee.
    Shannon Davis, Tulsa, OK, for Defendant/Appellant.
   Opinion by

KEITH RAPP, Judge:

1 1 The trial court defendant, Ronald Gullo (Father), appeals the trial court decision refusing to vacate an Oklahoma divorce decree on grounds of lack of personal jurisdiction. The decree awarded the trial court plaintiff, Bonita Jean Gullo (Mother), a divorce, child custody, child support, and certain property.

BACKGROUND

12 Mother and Father were married in 1989 in Ohio and resided there. They had one child of the marriage born in 1990 in Ohio. They separated in 1994. Mother and child then moved to Oklahoma. Father remained in Ohio.

3 Mother filed for divorcee approximately seven months after coming to Oklahoma. Father was personally served with summons in Ohio in October of 1995. However, he was a resident of Ohio and he did not leave Ohio at any material time. He has never been in Oklahoma. - The parties disagree about whether Father was aware of Mother's whereabouts in Oklahoma prior to the divorce-Mother says he knew and she arranged telephone contact with the child; Father says he did not know. The divorce was entered on January 19, 1996, and Mother was awarded custody, property, and child support. Mother's counsel at the time of the divorce testified by affidavit that he mailed a copy of the decree to Father at that time. Father has not disputed this assertion and Father had not appealed the decree.

T4 Subsequently, Mother received financial assistance from the Oklahoma Department of Human Services (ODHS). This agency began collecting child support from Father by wage assignment, without any challenge to jurisdiction by Father. This activity continued for about eleven months until ODHS discovered a Schwab account containing about $9,000.00 belonging to the Father. ODHS levied on the account.

15 On December 10, 2001, the Father initiated these proceedings to vacate the divoree leading to this appeal by entering a special appearance and filing a motion to dismiss approximately six years after the initial divorcee. Father's contention is that the Oklahoma court did not have personal jurisdiction over him, so the decree provisions for child support and property division are void. The Father acknowledged that the court had jurisdiction to award custody and grant the divorce. He does not dispute that he is the father of the child.

1I 6 The facts in dispute were presented by affidavits, pleadings, and briefs. The Mother alleged that the Father was abusive and that they had discussed and agreed that Mother would return to Oklahoma and could obtain a divorce, if she would not seek support and would not inform anyone of the abuse. Her attorney in the divorce action provided an affidavit stating that he had had mail contact with the Father and that Father had agreed to sign a decree, but failed to do so. His affidavit recited that the Mother had informed him of the alleged abuse by the Father and of her reasons for moving to Oklahoma, but his affidavit did not state whether any independent investigation of the facts had been undertaken.

T7 The Mother argued that the Uniform Interstate Family Support Act (UIFSA), in effect when the divorcee was granted, established the authority for the Oklahoma court to award child support and exercise personal jurisdiction over the Father. She relied upon 48 0.S. Supp.1994, § 601-201(5) and (8) to establish jurisdiction.

T8 The Father denied the Mother's allegations that they agreed to a move here or that they made any other agreements. The Father asserted that he was unaware of Mother's and child's whereabouts for about one year. He denied negotiating the divorcee with Mother's original attorney or having any other contact with her, directly or indirectly. He specifically denied directing or bringing about his child's relocation to Oklahoma from Ohio.

T9 The trial court did not conduct a trial. The parties appeared to be content to have the facts, including the disputed facts, presented in the format noted above. At the hearing on the matter, the trial court discussed the fact that Father had paid, by wage assignment, child support for eleven months without challenge and voiced an opinion that such acts could amount to waiver or estoppel. However, the court apparently did not rest its decision on those equitable principles.

10 The trial court stated that there was sufficient statutory authority for the decision to deny the motion to vacate. In these remarks, the court referred to Mother's brief and her citations to the statutes as discussed above, but without specifying whether subsections 5 or 8, or both, of Section 601-201, would control under the facts of the case. The court denied Father's motion to vacate. Father appeals.

STANDARD OF REVIEW

111 This matter presents a question of law concerning an Oklahoma court's jurisdiction under the UIFSA to decree child support in favor of an Oklahoma parent whose child also resides in Oklahoma against a non-resident parent who was personally served a summons outside the State and who has never been in the State of Oklahoma. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.

ANALYSIS AND REVIEW

A. - In Personam Jurisdiction When Divorce/Support Decree Entered.

{12 The parties are in basic agreement that the Constitution requires a minimum contact, yet some contact, with the forum state in order to exercise in personam jurisdiction. - International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Here, of course, it is not the nature and quality of commercial activity that must be examined to ascertain whether the state court may exercise jurisdiction. Nevertheless, the minimum contact principle applies. Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696-97, 56 LEd.2d 132 (1978). An essential criterion in all cases is whether the quality and nature of the defendant's activity is such that it is reasonable and fair to require him to conduct his defense in the state notwithstanding that the forum state and the plaintiff have an interest in proceeding in the forum state. Kulko, 486 U.S. at 92, 98 S.Ct. at 1696.

113 The Supreme Court ruled in Kulko that mere acquiescence of a divorced father, who resided in New York, to his daughter's desire to live with mother in California did not confer jurisdiction to the California court in a custody dispute. The Court rejected an argument that the father received an economic benefit from California so as to warrant exercise of jurisdiction there. Finally, the Court declared that considerations of fairness and the criterion of minimum contacts do have roles in determining the proper forum. The Court's analysis and reasoning are instructive here.

114 First, the determinations of reasonableness and what constitutes minimum contacts is not subject to a bright line mechanical test and the facts of each case must be examined and weighed to reach a decision. Kulko, 436 U.S. at 92, 98 S.Ct. at 1696. Next, the unilateral acts of a party claiming some relationship with the nonresident cannot, by itself, satisfy the minimum contacts requirement. There must be some "purposeful act" by the nonresident such that the nonresident makes use of the privilege of conducting activities within the forum State. Kulko, 436 U.S. at 94, 98 S.Ct. at 1698.

T15 Last, a State's interest in protecting resident children and facilitating child support actions for them is, without more, insufficient to make that State the fair forum. Kulko, 436 U.S. at 100-01, 98 S.Ct. at 1701. The Court accepted the principle that such interests are important, but stated that while the principle may be used to decide which State's laws would apply in the event of a conflict of laws, it may not be used to determine jurisdiction. Nevertheless, the "choice-of-law" function was distinct from the question of authority to exercise personal jurisdiction. Kulko, 436 U.S. at 97, 98 S.Ct. at 1700.

{16 The Court, in this regard, distinguished cases arising from commercial activities from cases arising from a domestic relationship with the observation that commercial activities are different in nature than transactions involving domestic affairs. Kulko, 436 U.S. at 96, 98 S.Ct. at 1699. The Court thus rejected the contention that the act of agreeing to his daughter's move did cause an "effect" in California justifying in personam jurisdiction.

117 The trial court here appeared to erroneously place controlling emphasis on the public policy element and the State's interest in the child. According to Kulko, that emphasis is misplaced and would not suffice to authorize jurisdiction.

T18 The difficulty presented this Court is that the facts of the case under review were not litigated and resolved by the trial court. These facts, upon ultimate determination, such as whether Father "purpose, ly" acted to have his child move to Oklahoma, may indeed take the case out of Kulko and satisfy Due Process of Law requirements, but the disputed facts must be determined, resolved, and weighed by the trial court. This is a two-step fact-finding process. See Deerinwater v. Circus Circus Enterprises, 2001 OK CIV APP 37, ¶¶ 12-13, 21 P.3d 646, 650.

119 The Supreme Court did observe that California "has not attempted to assert any particularized interest in trying such cases in its courts by, eg., enacting a special jurisdictional statute." However, unlike California in Kulko, Oklahoma has a statute, Section 601-201 of Title 48, which is a special jurisdictional statute. Subsection 601-201(5) confers jurisdiction to decree child support when the child is in Oklahoma as a result of acts or directives of the non-resident parent to be charged with the support obligation. Here, the Mother has alleged facts to bring herself within the scope of this provision, but the Father has denied her allegations and the trial court did not make any findings of fact. The trial court's reliance on public policy will not suffice to cure this failure and is here error, thus requiring remand to the trial court.

120 Subsection 601-201(8) represents a catch-all attempt to extend the statute to its limits. If there are additional facts available to meet the reasonableness and minimum contacts criteria, such facts are not apparent from the record before this Court. However, on remand, Mother is free to present any such facts and legal analysis she believes may support application of this subdivision subject to the trial court orders.

121 The process to resolve the jurisdictional question involves a two-step analysis. Taylor v. Phelan, 912 F.2d 429 (10th Cir.1990). The basic outline looks first to the long-arm statute, here 48 O.S8. Supp.1994, § 601-201(5) and (8), then to the Due Process analysis of minimum contacts and the fairness factors.

122 The first step determines whether the long-arm statute, here Section 601-201(5) and (8), applies. This Court holds that the statute does apply here to the child support portion of the dispute. Clearly, the statute is designed to apply to family law matters involving child and (ex)spousal support issues when parents reside in different states. Moreover, the statute is one where Oklahoma has asserted a particularized interest in trying such cases in its courts.

$28 The second step ascertains whether the exercise of personal jurisdiction comports with the requirements of Due Process. Taylor v. Phelan, 912 F.2d at 432. The trial court decides whether the plaintiff has established a prima facie case of minimum contacts with the forum state by each defendant sufficient to justify jurisdiction, that is, Due Process. The elements to be decided are:

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.
(2) The claim must be one which arises out of or results from the defendant's forum-related activities.
(8) Exercise of jurisdiction must be reasonable.

Taylor v. Phelan, 912 F.2d at 431.

T 24 It is in this stage that the record here fails. The trial court has not made the requisite findings as to this second step to support a conclusion subject to appellate review.

125 Father relies on Taylor v. Taylor, 1985 OK CIV APP 26, 709 P.2d 707. The issue in Taylor was whether the then 1980 Oklahoma long-arm statute vested jurisdiction over a nonresident husband who was served out-of-state with a resulting divorce decree that included child support and alimony. The ex-husband moved to vacate the decree as to the personal money judgments when the ex-wife sought to collect arrearages of alimony and child support. The Court cited Kulko for the proposition that minimum contacts were required and the unilateral activity of one party cannot serve to subject the other to personal jurisdiction. The Court ruled that the trial court did not have jurisdiction. In addition, the Court ruled that the ex-wife's "argument that appellant purposely availed himself of the laws of Oklahoma by relying on his wife to obtain a valid divorce decree here is patently without merit." Taylor, 1985 OK CIV APP 26 at ¶ 6, 709 P.2d at 709. It did not appear that the ex-husband had ever been in the State or had property here. Thus, the reasoning in Taylor shows that the facts there would not support a finding here under the second step above that would favor jurisdiction.

126 It is clear that the present statute was enacted to conform to Kulko and similar cases, including Taylor. Thus, subdivisions 5 and 8, set out above, do not relieve a plaintiff-spouse from the application of Kul-ko. However, Taylor does not dispose of the matter here under review because there are facts remaining to be adjudicated concerning whether the Father has purposefully availed himself of conducting activities in Oklahoma. When a necessary disposition of fact is absent from the record, the case must be remanded with directions that the facts be adjudicated by the trial court, as this is not the function of the appellate court. Bivins, 1996 OK 5 at ¶ 9, 917 P.2d at 464.

B. Waiver by Payment of Child Support

127 Mother asserts that Father paid child support for eleven months preceding this matter under review, and thus has waived his complaint about jurisdiction. Father states that such payments were made involuntarily as a result of an income wage assignment instituted by ODHS. The waiver question to be operative assumes that the facts do not support a finding that the trial court had personal jurisdiction when the decree was entered.

1 28 Again, the facts concerning the particulars of how and under what authority this child support is being collected do not appear in the record here. The Father's statement that his payments are involuntary was not refuted. The record does not affirmatively establish the conditions under which or how he made the support payments, whether the payments were ordered administratively in a contested or default matter as opposed to a post-decree order in the divorce case, and whether he asked for any relief such as modification of support. |

129 In general, a party is not required to take any steps to have a void judgment reversed, vacated, or set aside, and whenever it is brought up against the party he may attack its validity. It is supported by no presumptions, and may be impeached in any action, direct or collateral. Condit v. Condit, 1916 OK 905, 168 P. 456 syl. 2. Moreover, a nonresident may challenge service and jurisdiction and still defend so long as affirmative relief is not requested. Bill Hodges Truck Company v. Williams, 1970 OK 98, ¶ 34, 470 P.2d 310, 317; Allen v. Ramsey, 1935 OK 98, ¶ 56, 41 P.2d 658, 668. Thus, the record before this Court does not permit a conclusion at this time that Father waived jurisdiction at any time.

SUMMARY AND CONCLUSION

1 30 The trial court's reliance upon a policy of providing support for children will not sustain personal jurisdiction. Moreover, neither the unilateral acts of Mother nor mere acquiescence by Father in the removal to Oklahoma will enable the Oklahoma court to exercise jurisdiction. However, there is here an applicable long-arm statute. Nevertheless, there remain facts yet to be adjudicated which, if proven upon hearing, may demonstrate that the quality and nature of the Father's acts are such that it is reasonable and fair to require him to conduct his defense in the state and thus satisfy Father's Due Process of Law rights. Kulko, 436 U.S. at 92, 98 S.Ct. at 1696.

131 The judgment of the trial court is reversed and remanded for further proceedings.

132 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GOODMAN, P.J., and REIF, J., concur.

      . Mother apparently originally was from Oklahoma.

      . The statute provides:
      In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:

      5. The child resides in this state as a result of the acts or directives of the individual;

      8. There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
      Mother has not argued that 12 O.S. Supp.1994, § 2004(F) applies.

      . This background is taken from the transcript of the hearing. The journal entry denying the motion to vacate the decree does not specify a reason or reasons for the ruling nor does it contain findings of fact.

      . The "effects test" recognizes that an individual may cause an effect in one state as a consequence of acts performed outside the state. Restatement (Second) of Conflict of Laws § 37 (1971). The Court viewed this test as one intended "to reach wrongful activity outside the State causing injury within the State." Kulko, 436 U.S. at 96, 98 S.Ct. at 1699.

      . - Hearing Transcript, pp. 6-7.

      . Resolution of factual issues is a matter for the trial court, not the appellate court, in the first instance. Bivins v. State ex rel. Oklahoma Mem. Hosp., 1996 OK 5, ¶ 19, 917 P.2d 456, 464.

      . Whether this statute comports with Kulko is not an issue in this appeal and no judgment of the validity or merits of the statute is here intended. This Court only notes that the statute's language connotes "purposeful" acts on the part of the nonresident parent.

      . A duty of support includes both a duty to support a child (children) and an (ex)spouse. 43 0.8. Supp.1994, § 601-101(3).

      . In Taylor, the Court ruled that the facts could be presented by affidavits. Whether this process for resolving factual disputes comports with Oklahoma procedural requirements need not be and is not decided here.

      . The statute then in force was 12 0.$.1981, § 170.1. In part, the statute provided:
      Service may be made outside of the State either by personal service or by mail, at the election of the plaintiff, in any action, including:

        5. Actions brought to obtain a divorce or the annulment of a marriage.
      Subdivision 7 concerns actions for alimony and child support if the defendant has property in the State subject to appropriation to satisfy the support claim, a case not shown to exist in Taylor. Moreover, Section 170.8 provided that such service did not confer personal jurisdiction over one not otherwise subject to jurisdiction or who appears in the case.

      . The recitation of facts does not indicate whether any of the court-ordered support had been paid.


author: KENNETH L. BUETTNER, Judge:

text:
    2003 OK CIV APP 67
    DIVERSIFIED RUBBER, and Mega Life & Health Insurance, Petitioners, v. Clayborne HARVEY and The Workers' Compensation Court, Respondents.
    No. 98,374.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    June 20, 2003.
    Victor R. Seagle, Kelly M. Greenough, Perrine, McGivern, Redemann, Reid, Berry & Taylor, P.L.L.C., Tulsa, OK, for Petitioners.

      W.C. Doty, The Bell Law Firm, Norman, OK, for Respondent Clayborne Harvey.
   Opinion by

KENNETH L. BUETTNER, Judge:

1 1 Petitioner Diversified Rubber (Employer) seeks review of an order of a three-judge panel of the Workers' Compensation Court which affirmed in part and modified in part the order of the trial court. Employer challenges the panel's order regarding the length of time vocation rehabilitation payments must be made, and also the finding that Claimant Clayborne Harvey made a prima facie case that he is permanently totally disabled. Because we find the panel erred in awarding vocational rehabilitation payments for the period before Harvey was actively participating in a vocational training program, we vacate the order and remand for further proceedings.

T2 Harvey filed his Form 8 January 18, 2000, in which he claimed his left hand was crushed by a rubber cutter while working for Employer October 12, 1999. Employer filed its Form 10 May 15, 2000, in which it admitted that Harvey sustained an accidental injury arising out of and in the course of employment. In its Form 10, Employer noted that it had paid temporary total disability (TTD) benefits to Harvey from October 15, 1999 until February 3, 2000. Pursuant to Harvey's request in his Form 9 filed May 11, 2001, the court granted Harvey an additional 52 weeks of TTD benefits June 15, 2001.

T3 Harvey filed another Form 9 July 17, 2001, in which he sought trial on the issues of permanent disability, continued medical treatment and prescriptions, further surgeries, and a "functional capacity evaluation." Employer filed another Form 10 August 27, 2001, in which it claimed an overpayment of TTD from May 29, 2001 through June 11, 2001, and denied that Harvey was permanently totally disabled. Employer filed its objection to the vocational evaluation of Kathy Bottroff December 20, 2001.

T4 The trial court issued its order April 26, 2002. The court found that Harvey had sustained an injury to his left hand arising out of and in the course of employment. The court found Harvey was TTD from October 16, 1999 until February 3, 2000, and also from August 1, 2000 until May 29, 2001. The court noted that Employer had paid TTD benefits to Harvey from October 16, 1999 until February 3, 2000, and from August 1, 2000 through June 11, 2001. The court therefore awarded Employer credit for overpayment of TTD for the period from May 29, 2001 through June 11, 2001. In paragraph 4, the trial court found that Harvey was "not permanently and totally disabled solely as a result of this accident." In paragraph 5, the court found that Harvey had sustained 40% permanent partial disability to the left hand and awarded 84.4 weeks of compensation. The trial court denied Harvey's request for continuing medical maintenance. In paragraph 7, the trial court reserved the issue of vocational rehabilitation for 60 days. In paragraph 8, the trial court denied Harvey's request for benefits under 85 0.98.8upp.1997 § 16(D).

1 5 Harvey appealed the trial court's order to a three-judge panel May 6, 2002. Harvey argued that the evidence supported a finding that he was PTD and was entitled to continuing medical maintenance. - Harvey later amended his appeal to the panel to also challenge the denial of § 16(D) benefits and to argue that the finding of 40% disability was "grossly inadequate."

T6 The panel issued its order September 28, 2002, in which it vacated paragraphs 4, 5, 7, and 8. The panel issued the following provisions in lieu of the vacated paragraphs:

-4-
THAT, but for the ability to be retrained, the claimant has established a prima facie case to support an award of permanent total disability.
-5-
THAT as a result of said injury, claimant has sustained 40 percent permanent partial disability to the LEFT HAND.
-_7-
THAT within 90 days of the filing date of this order, the claimant is directed to advise C.A.R.E. of his desire to receive job placement assistance or to initiate a program of vocational retraining. C.A.R.E. is directed to coordinate the efforts to return the claimant to gainful employment. The respondent is directed to provide C.A.R.E. with a photocopy of this order.
-g
THAT the claimant shall be entitled to Section 16D benefits (weekly compensation equivalent to temporary total disability) from MARCH 5, 2002 (date of trial) and continuing.

The panel also ordered that paragraphs 9, 10, and 12 be vacated and that the remaining paragraph, 11, be renumbered to be consecutive with the rest of the order.

17 We review factual determinations made by a three-judge panel using the any competent evidence standard; but for questions of law, our review of the panel's decision is de movo. B.E. & K. Const. v. Abbott, 2002 OK 75, 59 P.3d 38, n. 1. In seeking review of the panel's order here, Employer asserts first that the panel erred in ordering it to pay benefits under § 16(D) beginning on the date of trial. Employer asserts that the plain language of § 16(D) states that vocational rehabilitation payments may only be paid "during the period when an employee is actively participating in a retraining or job placement program for purposes of evaluating permanent total disability status, ..." 85 O.S8.Supp.1997 § 16(D). Employer argues that Harvey was not actively participating in a retraining or job placement program on the date of trial,. We agree. Subsection 16(D) is unambiguous:

D. During the period when an employee is actively participating in a retraining or job placement program for purposes of evaluating permanent total disability status, the employee shall be entitled to receive benefits at the same rate as the employee's temporary total disability benefits computed pursuant to Section 22 of this title No attorney fees shall be awarded or deducted from such benefits received during this period,. All tuition related to vocational rehabilitation services shall be paid by the employer or the employer's insurer on a periodic basis directly to the facility providing the vocational rehabilitation services or training to the employee.

(Emphasis added).

T8 Nothing in the record indicates that Harvey had begun any type of vocational training or job placement program at the time of trial or at the time of the panel's order. Indeed, the panel's order gives Harvey 90 days in which to report for vocational retraining. The language "during the period when an employee is actively participating" in a retraining program is unambiguous. Taken in the context of the whole statute, this language does not include the initial evaluation process to determine if a voecational rehabilitation program is needed or practicable. The purpose of voeational rehabilitation is to restore the employee to gainful employment. The employee can only contribute to this purpose by undertaking the services or training offered by the employer or ordered by the court. To order § 16(D) benefits for a time period when a claimant is not actively involved in a retraining program would not only contravene the plain language of the statute, but would also allow the employee to collect the benefits and later elect not to participate in a retraining program-particularly in this case where the reports indicate few retraining options for Harvey.

T9 The panel erred as a matter of law in ordering § 16(D) benefits to be paid beginning on the date of trial and continuing. On remand, the panel is directed to enter an order providing that § 16(D) benefits are to be paid, if at all, only during the time Harvey is actively participating in a vocational rehabilitation or job training program.

Employer's remaining argument involves the panel's finding that Harvey has made a prima facie case to support an award of permanent and total disability. Employer's argument is first, that the panel erred in not making a finding as to the extent of disability due to a prior hand injury suffered by Harvey. Employer urges that Harvey was a previously impaired person so that any PTD benefits must be sought in a proceeding against the Multiple Injury Trust Fund. Harvey did not have an adjudicated prior work injury. At trial, Harvey agreed that he had injured his left hand when he was a younger man. Harvey also testified, though, that he had fully recovered from that injury and could use his left hand as well as his right at the time of the injury involved in this case. The Workers' Compensation Act defines a "physically impaired person," for purposes of proceeding against the Multiple Injury Trust Fund, as "a person who as a result of accident, ... or any other cause, has suffered ... the loss of the use or partial loss of the use of a member such as is obvious and apparent from observation or examination by an ordinary layman,. ..." 85 0.$.2001 § 171. No evidence in the record shows that Harvey's earlier injury to his left hand caused any loss of use. Harvey testified that use of his left hand was essential to the job he had been doing for most of his adult life until the injury at issue in this case. The injury at issue in this case caused Harvey to lose part of his left hand and to lose most of the use of that hand.

1 11 In his report, Dr. McClure noted that Harvey explained he had fractured two of his left fingers in 1972 and had undergone surgery at that time. Harvey further explained to Dr. McClure that he had no further problems with his left hand until the instant injury. Dr. McClure opined that apportionment is not an issue. Dr. Watts' report noted Harvey's 1972 left hand injury and stated "(Harvey) had some residual deformity of the middle finger." But the damage to Harvey's left middle finger from the instant injury was such that Dr. Watts could only opine that some of the damage may have been from the old injury.

112 A review of the panel's order shows that the panel agreed with the trial court that the 1999 left hand injury caused 40% permanent partial disability. The panel held, however, that but for the ability to be retrained, Harvey had made a prima facie case for permanent total disability. This is supported by competent evidence in the record that without successful vocational rehabilitation, Harvey would be unable to earn a living because he could no longer perform manual labor and did not have the intellectual ability to earn a living otherwise. Whether an injured employee is permanently totally disabled is not determined solely on the percentage of disability, but rather is "largely dependent on the individual's ability to perform continuously some - substantially gainful occupation, notwithstanding his disability." City of Norman v. Steves, 1998 OK CIV APP 81, 962 P.2d 655, 657, citing Apache Fixtures v. Erby, 1995 OK CIV APP 53, 900 P.2d 462. Similarly, the Workers' Compensation Act defines "permanent total disability" as "incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation;. ..." 85 0.8.2001 $ 3(17).

{13 Because Harvey has yet to complete the vocational rehabilitation offered by the court, he cannot be adjudicated permanently totally disabled. The plain language of § 16 indicates that vocational rehabilitation or job training under that section is for the purpose of evaluating permanent total disability. We find that the panel followed that mandate by qualifying its finding with the language "but for the ability to be retrained." We find the panel did not adjudicate Harvey as permanently totally disabled, but rather held that such determination could be made based on the outcome of the vocational rehabilitation or job training program offered by C.A.R.E. In City of Norman, supra, this court approved a "temporary and conditional" determination of PTD status pending vocational rehabilitation. 962 P.2d at 657. We find no error of law in paragraph 4 of the panel's order and we also find that paragraph is supported by competent evidence.

14 We VACATE the panel's order and REMAND for entry of a new paragraph 8 in accordance with this opinion.

ADAMS, P.J., concurs; JOPLIN, C.J., dissents.

      . Paragraph 9 provided the method of payment of the benefits to Harvey, paragraph 10 ordered Employer to pay costs and a Special Occupational Health and Safety Fund Tax. Paragraph 12 provided for an award of attorney fees. Paragraph 11 ordered a $75 filing fee to be paid pursuant to 85 0.$.1991 § 93.

      . The evidence included two reports from evaluations of Harvey for vocational rehabilitation. Harvey's Exhibit 2 was a report from PROS and Associates. The report indicated that PROS conducted a vocational evaluation October 23, 2001. The report noted that Harvey had been limited to lifting no more than 5 or 10 pounds with his left hand, while his previous job required him to lift around 100 pounds. PROS found that Harvey lacked the intellectual and academic skills to benefit from any formalized retraining program. The report indicated that Harvey hoped to buy a farm and live off the land. The report concluded that Harvey is unable to be retrained for any job which would allow him to earn a living without the use of his hands, and that accordingly, Harvey is permanently and totally disabled from performing any work.
      19 Employer's Exhibit 2 was an Initial Vocational Evaluation Report from CARE. The C.A.R.E. evaluation consisted of several vocational aptitude tests, which revealed that Harvey reads at the first grade level and has third grade math skills. The C.A.R.E. report listed four types of jobs that Harvey could do without additional training: optical goods polisher, fast food worker, welcome host-greeter, and escort vehicle driver. The CARE. report noted that Harvey expressed an interest in computer training and listed three job training programs available: an academic skills enhancement class, introduction to computers and computer repair classes, and electronic repair technician classes.

      . We disagree with Employer's suggestion that Harvey is not entitled to § 16(D) benefits because he had briefly returned to work. Harvey returned to work for Employer but was unable to perform the assigned job. It was undisputed that Harvey could no longer perform the type of manual labor he had done all his adult life. Vocational rehabilitation was therefore appropriate pursuant to the express language of 85 0.S.Supp.1997 § 16(A), and the order allowing vocational rehabilitation was therefore supported by competent evidence.


text:
    2003 OK CIV APP 66
    Michael H. McCOWN, Plaintiff/Appellee, v. STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
    No. 98,319.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 1, 2003.

      Stephen G. Fabian, Jr., Oklahoma City, OK, for Plaintiff/Appellee.
    J. Robert Blakeburn, State of Oklahoma, Department of Public Safety, Oklahoma City, OK, for Defendant/Appellant.
   Opinion by

KENNETH L. BUETTNER, Judge:

T 1 Michael H. McCown was arrested September 8, 2001 for driving under the influence of alcohol. He was given a breath test and, as a result, his driver's license was revoked by the Department of Public Safety (DPS). The revocation was upheld by DPS after an evidentiary administrative hearing. McCown appealed to the District Court of Oklahoma County which set aside the revocation on the ground that the breath test result was not admissible evidence because the apparatus was not approved by the rules of the Board of Tests for Alcohol and Drug Influence (Board). We affirm.

§ 2 When McCown, a minor, was arrested, the officer tested for aleohol using an Intoxi-lyzer 5000 connected to a Guth Model 2100 Simulator. It was undisputed that the Simulator was not listed as an approved device pursuant to OAC 40: 25-1-3 where the Board lists its approved devices.

13 A person who is denied driving privileges or has his driving privileges canceled, denied, suspended, or revoked by DPS may appeal the adverse action to district court which has original jurisdiction to hear the petition. 47 0.8. Supp.2000 § 6-211(A). The district court takes testimony of witnesses and examines the facts and circumstances, including the records of DPS relative to the offense, and the driving record of the person. It makes a determination based on the facts submitted whether the petitioner is entitled to driving privileges or whether the petitioner should be subject to the DPS order. The person or DPS may appeal the order of the district court. 47 O.S. Supp. 2000 § 6-211(M). The reviewing court "... will not reverse or disturb a finding of a lower court if there is any evidence, or any reasonable inference to be drawn therefrom, which tends to support its findings." - Smith v. State ex rel. Department of Public Safety, 1984 OK 16, T 7, 680 P.2d 365, 368.

4 DPS earries the burden of proving, by a preponderance of the evidence, that the adverse action with respect to driving privileges, was proper. Trenton v. State ex rel. Department of Public Safety, 1989 OK CIV APP 96, 790 P.2d 1127.

¶ 5 The parties stipulated that the district court take judicial notice of the Oklahoma Administrative Code's Rules of the Board of Tests for Alcohol and Drug Influence.

T6 DPS presented one witness, the arresting officer. He testified that he had been a police officer for the City of Edmond for approximately eight and one-half years. On September 8, 2001 he came in contact with McCown:

A I received a call from a father, Mr. McGown (sic), who was trying to stop his son. I believe at that time they were northbound on Santa Fe. His son was driving a small red vehicle. His son was not stopping for him. They came eastbound on Covell to Broadway, and then came southbound. I was coming northbound on Broadway where I made contact with the red vehicle coming southbound roughly, and I estimated the speed at approximately 60 miles per hour, turned around the vehicle and stopped him.
Q -What's the speed limit in that area?
A It's 45 miles per hour right before Danforth, approximately a quarter mile, goes to 385 miles an hour.
Q Okay. So when you saw those vehicles they were coming at you, right?
A Yes, sir.
Q Okay. When you saw that, was the small red vehicle within the city limits of Edmond?
A Yes.
Q Okay. So onee you did see these vehicles that you described, what did you do?
A I stopped the red vehicle, approached and made contact with the driver, Michael McGown (sic).
Q And what did you tell him or ask him to do?
A - Asked him for his driver's license identification. As I was talking to him I noticed an odor of alcoholic beverage coming from about his person, or about the vehicle, from the vehicle.
Q Was there anyone in the vehicle with him?
A There was a friend in the passenger's seat.
The Court: In the passenger's seat?
A Yes, sir.
Q So at that time could you specifically determine where that odor was coming from?
A - Not specifically.
Q Okay. So what did you do when you noticed that odor?
A I had Mr. McGown (sic) exit the vehicle, and we walked to the front of the vehicle.
Q Okay. And he did so?
A Yes.
Q Onee you got him to the front of the vehicle, what were you able to determine about that odor: Did it go away, get stronger, weaker, whatever?
A It appeared to get a little bit weaker. As I was talking to him, as I observed him getting out of the car he seemed a little unsteady on his feet. And then as I was talking to him, asked him if he had anything to drink and he stated to me he had a couple of beers about an hour ago. And then he stated to me, that to be honest, I'm probably a little drunk. It's at that time that I placed him under arrest for DUL.

T7 The officer further testified that he caused a sworn statement of the contact and arrest to be transmitted to DPS. The Affidavit and Notice of Revocation was admitted into evidence. He stated that another officer transported McCown to the station and that after he had the car impounded, he also went to the jail. In the booking room, he read McCown his implied consent test request. He testified that McCown was informed that his license would be revoked or suspended if the results were .02 or greater. McCown consented to the test. The officer checked McCown's mouth for foreign objects and warned him about the fifteen minute deprivation period. The officer did not leave the room during the deprivation period. The officer testified that he used an intoxilyzer 5000D for which he was licensed. He used a memory aid to assist him in the testing procedure. The officer continued in detail about the testing procedures. McCown blew a .03.

T8 McCown did not object to most of the testimony, but objected to the admissibility of the Intoxylizer results because the Simulator was not one approved by the Board. McCown then cross-examined the officer and demurred to the evidence.

T9 The documentary evidence admitted included: (a) municipal court summons for DUI-aleohol; (b) officer's Affidavit and Notice of Revocation (exp. tag, speeding & rolling disturbance, strong odor of an alcoholic beverage, mumbled speech, stated "I think I'm a little drunk") with attached page of MeceCown's Intoxilyzer analysis; (c) Intoxilyzer Model 5000-D Log of Tests and Maintenance Record; (d) MceCown's Driver's License Traffic Record; and (e) a copy of the Board's Approved Alcoholic Breath Simulators list dated December 1, 1999 and an attached copy of the Board's minutes of its November 17, 1999 meeting. .

110 With respect to the last exhibit, the simulator used during McCown's test is not one approved by the Board. The minutes of the meeting revealed that the Board approved a motion to approve the use of the simulator in question. The district court found that the simulator used did not appear in the Oklahoma Administrative Code as a device approved by the Board of Tests for Drug and Aleohol Influence and therefore the license revocation should be set aside. From the bench, the district court stated that the Board had approved the device but had failed to formalize its approval through the usual rule-making procedures. The law requires that admissibility of the breath test into evidence be based on the test being administered and performed in compliance with the rules and regulations of the Board. 47 O.S. Supp.1992 § 752(H) and 47 O.S. Supp.2000 § 759(B).

DPS first contends that the district court exceeded its authority because it did not find that the test was inaccurate and that the statute limits it to methodology of the tests. We agree that the hearing in the district court is a special proceeding and confined to the express authority found in the law. However, the law is clear that the district court makes a determination on the admissibility of the test result based on compliance with the Board's rules. The Board formally publishes its list of approved devices. Because devices are approved by the Board and published in its rules, merely approving new devices in meeting minutes is insufficient to identify new devices approved by the Board. There is no error on this account.

{12 Next, DPS argues that the district court erred by holding that the Board must promulgate a rule to change procedure or approve new equipment. The Board is subject to the rule-making requirements of the Oklahoma Administrative Procedures Act, 75 0.8. Supp.1997 § 250 et seq. The Board publishes its list of approved devices in the OAC. Adding a device to the approved list would amend the list, There is a procedure for amending rules which includes publication of the amended action in the Oklahoma Register. See 75 0.8. Supp. 1994 $ 303 for detailed procedures for adopting, amending, or revoking rules. Because the new simulator device had not been approved and incorporated into the Board's rules, the test results were inadmissible.

T13 Finally, DPS claims that the district court erroneously allowed a driver's license appeal to become an improper venue challenging the rule making procedures of the Board of Tests for Alcohol and Drug Influence. We disagree. The determination of the admissibility of the breath test result was expressly given to the trial court in its role in driver's license appeals. Admissibility of test results is based on the test being in compliance with the Board's rules. The Board had no rule authorizing the use of the Guth Model 2100 Simulator, therefore the test result was inadmissible.

{ 14 AFFIRMED.

ADAMS, P.J., and JGPLIN, C.J., concur.

      . Driver's license revocation hearings are "special proceedings" limiting the district court to the express provisions of the enabling statute. See Thomas v. State ex rel. Department of Public Safety, 1993 OK CIV APP 78, 858 P.2d 113, fn. 10. For this reason, we set forth 74 O.S. Supp. 2000 § 6-211(I): The court shall take testimony and examine the facts and circumstances, including all of the records on file in the office of the Department of Public Safety relative to the offense committed and the driving record of the person, and determine from the facts, circumstances, and records whether or not the petitioner is entitled to driving privileges or shall be subject to the order of denial, cancellation, suspension or revocation issued by the Department. The court may also determine whether or not, from the person's previous driving record, the order was for a longer period of time than such facts and circumstances warranted. In case the court finds that the order was not justified, the court may sustain the appeal, vacate the order of the Department and direct that driving privileges be restored to the petitioner, if otherwise eligible. The court may, in case it determines the order was justified, but that the period of the suspension or revocation was excessive, enter an order modifying the same as provided by law.

      . 47 O.S. § 752(H): Tests of blood or breath for the purpose of determining the alcohol concentration thereof, and tests of blood, saliva or urine for the purpose of determining the presence and concentration of any other intoxicating substance therein, under the provisions of this title, whether administered by or at the direction of a law enforcement officer or administered independently, at the option of the tested person, on the excess specimen of such person's blood, breath, saliva or urine, to be considered valid and admissible in evidence under the provisions of this title, shall have been administered or performed in accordance with the rules and regulations of the Board.
      47 O.S § 759(B): Collection and analysis of a person's blood, breath, saliva or urine, to be considered valid and admissible in evidence, whether performed by or at the direction of a law enforcement officer or at the request of the tested person, shall have been performed in compliance with the rules and regulations adopted by the Board of Tests for Alcohol and Drug Influence and by an individual possessing a valid permit issued by the Board for this purpose.

      . We express no opinion on whether approved devices must be the subject of Board Rules. We only hold that when the Board decided to list approved devices in its rules, that adding to that list must be by Rule amendment.

      . Another division of the Oklahoma Court of Civil Appeals has reached a similar result in Manning v. State of Oklahoma, 2003 OK CIV APP 57, 71 P.3d 527 (cert.denied) (74 OBJ 1872).


author: BILLINGS, Associate Presiding Judge: THORNE, Judge

text:
    2003 UT App 240
    John D. HALE, Plaintiff and Appellant, v. Kurt BECKSTEAD and John Does I through V, Defendants and Appellees.
    No. 20020196-CA.
    Court of Appeals of Utah.
    July 10, 2003.

      Aaron J. Prisbrey, St. George, for Appellant.
    Bryan J. Pattison and Brent M. Brindley, Durham, Jones & Pinegar, St. George, for Appellees.
    Before BILLINGS, Associate P.J., and ORME, and THORNE, Judges.
   OPINION

BILLINGS, Associate Presiding Judge:

T1 John Hale appeals the district court's grant of summary judgment to Kurt Beck-stead. We affirm.

BACKGROUND

12 "When reviewing a grant of summary judgment, we evaluate the evidence and all reasonable inferences fairly drawn from that evidence in a light most favorable to the party opposing summary judgment." Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998) (quotations and citation omitted). Accordingly, we recite the facts as presented by Hale, although there is no real dispute as to the facts.

13 In 1996, Beckstead began construction of a house on land he owned in Santa Clara, Utah. The house was to be the primary residence for Beckstead and his family. Beckstead acted as his own general contractor in the construction of the house.

1 4 Beckstead hired Hale to paint the interior of the house. Beckstead did not exercise control over the day-to-day performance of the painting. In fact, at the time Hale's injuries occurred, Beckstead was out of town.

{5 The house was under construction when Hale performed the painting work. Accordingly, a railing had not yet been installed on the second floor balcony. While painting the interior, Hale inadvertently stepped off the second-floor balcony and fell to the first floor below, sustaining injuries.

T6 Hale filed a complaint against Beck-stead alleging negligence, violation of the Oceupational and Safety Health Act (OSHA), and premises liability. Subsequently, Beck-stead moved for summary judgment.

T7 The trial court granted Beckstead's motion and entered summary judgment for Beckstead. The trial court found that "[Hale] fell while on [Beckstead's] premises as a business visitor or invitee, ... and that any danger posed to [Hale] by the condition of [Beckstead's] partially-completed home was open and obvious to [Hale]." The trial court thus held that "[Beckstead] had no duty of care toward [Hale]." Hale appeals.

ISSUE AND STANDARD OF REVIEW

T8 Hale argues the district court erred in holding, as a matter of law, that Beckstead owed no duty of care to Hale. "Because the determination of whether summary judgment is appropriate presents a question of law, we accord no deference to the trial court's decision and instead review it for correctness." DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah 1996). Also, "the issue of "whether a "duty" exists is a question of law' which we review for correctness." - Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998) (quoting Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986)).

ANALYSIS

I. Restatement (Second) of Torts and Landowner Duty

T9 Hale argues the district court erred in holding that Beckstead owed no duty of care to protect Hale from the danger posed by the unprotected balcony. In English v. Kienke, 848 P.2d 153, 156 (Utah 1993), the Utah Supreme Court suggested that Utah follows the Restatement (Second) of Torts (1965) (the Restatement) with regard to duty in cases of landowner liability. In that case, the supreme court employed Restatement sections 828E, 882, and 348 to define the status of the plaintiff workman as a " 'business visitor' " and the landowner as a " 'possessor of land" " English, 848 P.2d at 156 (quoting the Restatement sections 328E, 332, 343). The English court then quoted section 343 of the Restatement in its entirety and provided the following analysis:

Sections 348 and $484 of the Restatement impose on a possessor of land the duty to warn an invitee about two general types of hazards: (1) those that are present on the land when the invitee enters which the possessor should expect the invitee will not discover or realize, and (2) those that the possessor creates after the invitee's en-tryl.]

English, 848 P.2d at 156 (emphasis added). Because the plaintiff invitee in English "created the hazard which led to his death," the supreme court did not apply sections 348 and 348A in that case. Id. However, the English court clearly indicated that a landowner's duty to an invitee in Utah is set out in sections 343 and 348A of the Restatement. See id. at 156-57.

T 10 Indeed, in Laws v. Blanding City, our most recent case involving an open and obvious danger in the context of landowner liability, this court applied the open and obvious danger analysis of the Restatement sections 343 and 348A (Restatement approach). See 893 P.2d 1083, 1085 (Utah Ct.App.1995). In that case we held that "[the correct statement of the duty Defendant, a possessor of land, owed Plaintiff, an invitee, is contained in sections 348 and 348A of the Restatement." Id.

T11 Thus, we conclude the open and obvious danger rule, as outlined in sections 343 and 348A of the Restatement, is the applicable law in this case.

A. The Restatement Approach to the Open and Obvious Danger Rule

{12 Section 343 of the Restatement provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against danger.

Restatement (Second) of Torts § 848. Hence, section 348 "impose{s] on a possessor of land the duty to warn an invitee about two general types of hazards: (1) those that are present on the land when the invitee enters which the possessor should expect the invitee will not discover or realize, and (2) those that the possessor creates after the invitee's entry." - English v. Kienke, 848 P.2d 153, 156 (Utah 1993).

I 13 Section 848A of the Restatement substantially clarifies the duty outlined in section 343 when the dangerous " 'condition is known to the invitee, or is obvious to him.' " Laws v. Blanding City, 893 P.2d 1083, 1085 (Utah Ct.App.1995) (citation omitted); see also Restatement (Second) of Torts § 348 emt. a ("Section [343] should be read together with § 348A."). Section 348A(1) of the Restatement provides that "[a] possessor of land is not Hable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them{[.]" Restatement (Second) of Torts § 348A(1).

114 We agree with the district court that the danger in this case-the second-floor balcony, which lacked railings because construction at Beckstead's house was not yet completed-was "known or obvious" to Hale within the meaning of section 348A of the Restatement. Hale concedes the house was only partially constructed and the second-floor balcony was unprotected, exposing a drop of over six feet. The inherent risk of such a condition in a partially-constructed house is "apparent to and would be recognized by a reasonable man ... in [Hale's position as an experienced painting subcontractor] exercising ordinary perception, intelligence, and judgment." Restatement (See-ond) of Torts § emt. b.

B. Restatement Exceptions to the Open and Obvious Danger Rule

'I 15 There are, however, significant exeep-tions to the open and obvious danger rule under the Restatement which can, in some cases, limit the protection the rule affords to landowners. Section 348A(1) of the Restatement reads: "A possessor of land is not liable to his invitee for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." - Restatement (Second) of Torts § 348A(1). Comment f states further:

There are ... cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection....
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.

Id. § 348A(1) emt. f.

16 Accordingly, the dispositive issue before us is whether or not Beckstead should have anticipated that Hale would suffer injury despite the known and obvious danger posed by the unprotected balcony, either because Hale's interior painting required a deliberate encounter with the danger, or because Hale was likely to become distracted.

117 With regard to the deliberate encounter exception, Laws v. Blanding City, 893 P.2d 1083 (Utah Ct.App.1995), is instructive. In Laws, the city's invitee was injured after falling from a dumping platform at the city's landfill. See id. at 1084. Following a jury trial the invitee appealed the verdict in favor of the city. See id. This court reversed the jury verdict and remanded for a new trial, holding the district court failed to properly instruct the jury regarding the duty owed by the city to its invitees notwithstanding the known and obvious nature of the hazard posed by the dumping platform. See id. at 1085-86 (citing Restatement (Second) of Torts §§ 348A(1), 848A(1) emt. f). We noted that because the appellant invitee lived outside the city's curbside trash pickup area, he was required by city ordinance to dispose of his trash himself using the dumping platform at the landfill. See id. at 1086. As such, the city "had a duty to protect [appellant invitee] because [the city] should have known that a reasonable person would, recognizing the danger, nevertheless encounter it." Id. at 1086 (emphasis added); see also Restatement (Second) of Torts § 248A (1) emt. £.

18 Unlike the appellant invitee in Laws, Hale was under no obligation by city ordinance or otherwise to encounter Beckstead's land at all, let alone the unprotected balcony from which he fell. Instead, Hale voluntarily entered the land to perform a freely negotiated painting contract for which he had expertise.

19 Case law from other jurisdictions that have adopted the Restatement approach under sections 348 and 848A is instructive and supports our approach. In Sutherland v. Barton, a powerful electric shock killed a worker at a job-site where machinery controls were being upgraded at a paper plant. See 570 N.W.2d 1, 2, 4 (Minn.1997). The fatal injury occurred while the worker was working on live electrical wiring that he and his fellow electricians at the project site knew "could be deadly." Id. at 3-4. There was no dispute at trial that "the danger was known and obvious to [the decedent worker]." Id. at 7. However, the appellant argued that the decedent worker's "only alternative to avoiding the risk of the live [wiring] was to forgo his employment." Id. The Supreme Court of Minnesota reinstated a grant of summary judgment in favor of the paper plant, holding that the paper plant "did not owe [the decedent worker] a duty to protect him from harm by [the] known and obvious danger" because: (a) the worker "had expertise as an electrician,] ... the exact reason [for which he was} hired"; (b) "Ht was entirely reasonable for [the paper plant] to expect that [the worker] would take the necessary safety precautions"; and (c) the paper plant "had no reason to anticipate that [the worker] would proceed to encounter the danger of the live [wires] without taking the necessary safety precautions." Id. at 7-8.

I 20 Likewise, in this case, Hale contracted with Beckstead to paint the interior of a partially-constructed house containing an unprotected second-floor baleony-clearly a known or obvious danger. - Hale held himself out to Beckstead as having expertise to complete the job-the very reason for which he was hired. As such, Beckstead could reasonably expect that Hale "would take the necessary safety precautions" and "had no reason to anticipate that [Hale] would proceed to encounter the [unprotected balcony] without taking the necessary safety precautions." Id. at 7. Hence, this is not a case where Beckstead "hald] reason to expect that [Hale would] encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk." - Restatement (Second) of Torts § 348A(1) emt. f.

T21 The distraction exception is equally inapplicable. In Kotecki v. Walsh Constr. Co., a commercial painter hired to paint door frames was injured when he lost his footing on a ladder situated next to a dock-leveling mechanism at the construction gite. See 333 Ill.App.3d 583, 267 Ill.Dec. 402, 776 N.E.2d 774, 776 (Ill.App.Ct.2002). The dock leveler was being used to unload merchandise into the mostly-completed retail store where the appellant painter was working. See id.

22 At a pre-trial deposition, the appellant painter testified he "knew the dock area was being used ... to unload merchandise" and that there were many other tradesmen in the area. Id. The appellant painter conceded that the foregoing conditions constituted a known or obvious danger, "but claim{ed] that the distraction ... exception[ ] appl[ied] to impose liability." Id. at 779. The Illinois Court of Appeals disagreed and affirmed the trial court's grant of summary judgment for the store owner. See id. at 775, 780-81. In so holding, the Kotecki court noted that the Restatement's distraction exception contemplates unusual distractions; not merely those conditions and activities typical of any construction site. See id. at 780 ("A distraction-free environment on a construction project would be an impossible burden to meet." "Imposing a duty to guard against [every] distraction[ ] ... on a construction project ignores the reality of the construction industry."); cf House v. Armour of Am., Inc., 929 P.2d 340, 344 (Utah 1996) ("If a manufacturer had to warn consumers against every such obvious danger inherent in a product, the list of obvious [dangers] would be so long, it would fill a volume" (quotations and citations omitted.)).

123 Here, like the appellant painter in Kotecki, Hale would have us apply Restatement section $48A(1) comment f to impose upon land possessors a duty to anticipate and mitigate against ordinary distractions which might cause worker invitee harm from known and obvious dangers on construction sites. We refuse to apply such an expansive and impractical rule.

CONCLUSION

124 Hale contracted with Beckstead to paint the interior of Beckstead's house while construction was ongoing. - Hale stepped off an unprotected balcony area that was known and obvious to him. Beckstead should not have expected that Hale would necessarily encounter the unprotected baleo-ny, or that his attention would be distracted from it. Accordingly, we hold that Beck-stead was relieved of any duty to Hale. Hence, we affirm the district court's grant of summary judgment.

1125 I CONCUR: GREGORY K. ORME, Judge.

THORNE, Judge

(dissenting).

126 I respectfully dissent and disagree with the majority's assertion that the Utah Supreme Court overruled, sub silento, Donahue v. Durfee, 780 P.2d 1275 (Utah Ct.App.1989). See House v. Armour of America, Inc., 929 P.2d 340 (Utah 1996), aff'g 886 P.2d 542 (Utah Ct.App.1994); Golding v. Ashley Cent. Irrigation Co., 902 P.2d 142, 145-48 (Utah 1995); Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169, 1172-73 (Utah 1991). After reading the cases cited by the majority, I believe that the Utah Supreme Court's position is, at best, ambiguous concerning our holding in Donahue. Because it is unclear that the cases relied upon by the majority do in fact "revive" the open and obvious danger rule in landowner lability cases, I conclude that this court is bound by the reasoning in Donakue.

Under the doctrine of stare decisis, once a point of law is decided, that ruling should be followed by a court of the same or a lower rank in subsequent cases confronting the same legal issue. Once the court of last resort makes a legal ruling, decisions on the same issue by courts of a lower rank are superseded.

State v. Shoulderblade, 905 P.2d 289, 292 (Utah 1995) (citations and quotations omitted). "Although the doctrine is typically thought of when a single-panel appellate court is faced with a prior decision from the same court, stare decisis has equal application when one panel of a multi-panel appellate court is faced with a prior decision of a different panel." State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993).

127 Until the Utah Supreme Court overrules Donahue or establishes a precedent at odds with Donahue, we are bound to follow our pronouncement in Donahue that the open and obvious dangers rule is incompatible with a comparative negligence system. Accordingly, I would reverse the trial court decision and remand for proceedings consistent with Donahue.

      . Historically, the Utah Supreme Court has applied the common law open and obvious danger rule in landowner liability cases. See, e.g., Moore v. Burton Lumber & Hardware Co., 631 P.2d 865, 868 (Utah 1981) ("It has long been held that a property owner has no obligation to warn an invitee of dangers which are known to the invitee or which are so obvious and apparent that he may reasonably be expected to discover them."); Ellertson v. Dansie, 576 P.2d 867, 868 (Utah 1978) ("Where there is a dangerous condition on one's property, which is just as observable to an invitee as to the owner, the owner has no duty to warn or to protect the invitee except to observe the universal standard of reasonable care under the circumstances.").
      However, in Donahue v. Durfee, this court announced the abandonment of the open and obvious danger rule in Utah. See 780 P.2d 1275, 1279 (Utah Ct.App.1989), cert. denied, 789 P.2d 33 (Utah 1990). We held that by "establishing a comparative negligence system, the Utah Legislature has by necessary implication abolished the open and obvious danger rule as an absolute bar to an injured [invitee's] recovery." Id.
      However, we conclude that Donahue has since been overruled sub silento by our supreme court. See House v. Armour of Am., Inc., 929 P.2d 340 (Utah 1996), aff'g 886 P.2d 542 (Utah Ct.App.1994). In House, the supreme court granted certiorari to review this court's application of the law governing duty in a reversal of the district court's grant of summary judgment for a defendant manufacturer in a products liability case. See 929 P.2d at 342. Defendant argued that "the court of appeals erred in failing to find that because the hazards [were] open and obvious, defendant[ ] did not have a duty to warn" or otherwise protect the plaintiff. Id. at 343. While "agree[ing] with the court of appeals' ultimate conclusion that a genuine issue of material fact exist[ed] as to whether the relevant danger . was open and obvious," the supreme court felt compelled to "clarify" our "suggest[ion] that Utah has 'abandoned' the open and obvious danger rule in all circumstances." Id. The referenced "suggestion" arose from our discussion of, inter alia, Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1303 (Utah 1981) and Donahue, 780 P.2d at 1279 (Utah Ct.App.1989). See House, 886 P.2d at 548 (Utah Ct.App.1994).
      The supreme court found persuasive "the reasoning of the United States Court of Appeals for the First Circuit," wherein that court opined: " 'If a manufacturer had to warn consumers against every such obvious danger inherent in a product, "the list of obvious [dangers] would be so long, it would fill a volume." '" Id. at 344 (quoting Laaperi v. Sears, Roebuck & Co., 787 F.2d 726, 731 (1st Cir.1986) (quoting Plante v. Hobart Corp., 771 F.2d 617, 620 (1st Cir.1985))). Our supreme court went on to "determine whether the danger posed to [plaintiff] was open and obvious as a matter of law." Id. After applying the open and obvious danger rule to the facts before it, the supreme court could not "say as a matter of law that the [hazard] was open and obvious [and] [therefore, the court of appeals correctly held that there [were] material issues of fact sufficient to preclude the trial court's grant of summary judgment." Id. at 345 (quotations and citation omitted); see also Golding v. Ashley Cent. Irrigation Co., 902 P.2d 142, 146 (Utah 1995) ("'Under the [Utah Limitation of Landowner Liability] Act, a landowner's knowledge of a dangerous condition that is inherent in the use to which the land is put and is common, open, and obvious does not give rise to liability."); Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169, 1173 (Utah 1991) (refusing to apply the "hidden trap" exception to canal owners immunity doctrine where "[the hazards .... are open and obvious, and ... inhere{[nt] in the very existence of canals and ditches").
      Hence, we conclude the open and obvious danger rule remains viable in Utah law governing duty.

      . Beckstead asks us to decide this appeal by applying the rules of liability for employers of independent contractors as outlined in the Restatement section 409, its companion sections, and the case of Thompson v. Jess, 1999 UT 22, 979 P.2d 322, which applies various sections of chapter 15 of the Restatement, including section 409. See id. at 113. Beckstead's reliance on these authorities is misplaced. Thompson dealt with issues of the "retained control" doctrine and the "peculiar risk" and "inherently dangerous work" doctrines under the Restatement sections 413, 426, and 427, Thompson, 1999 UT 22 at ¶ 11, 979 P.2d 322 (quotations omitted), issues not relevant to this appeal. More importantly, Thompson contains no analysis with regard to the duty owed by a possessor of land to an invitee. See id. And while section 409 has some applicability with regard to the relationship between Beckstead and Hale (where Beckstead did not participate in or control the manner in which Hale performed the painting, such that Beck-stead owed Hale no duty of care concerning the safety of the manner or method of performance Hale chose to implement), this analysis is not dispositive. As we discuss in detail below, Hale was a business visitor, an invitee on Beckstead's land-a status wholly separate from any status he may have had as an independent contractor, which no one disputes.

      . The existence of such exceptions illustrates that the open and obvious danger rule of sections 343 and 343A of the Restatement "avoid{s) the rigidity of the traditional common-law rule by permitting the courts to hold that a plaintiff's knowledge of the danger does not necessarily absolve the occupier of liability, and permit{s] a plaintiff to recover if it appears and is found that the risk was one which would not be anticipated or appreciated by the invitee, or where the [landowner] can and should anticipate that the dangerous condition will cause harm to the invitee notwithstanding its known or obvious danger." 62 Am. Jur. 2D Premises Liability § 157 (1990) (footnotes and citations omitted). Hence, the Restatement approach to the open and obvious danger rule is not necessarily the kind of "strict all-or-nothing rule" alluded to by our supreme court in House, 929 P.2d at 344.

      . We note that Hale failed to provide the trial court with any evidence as to how his presence on Beckstead's land for purposes of painting might require a deliberate encounter with the unprotected balcony.

      . Hale put no evidence before the trial court to indicate that any unusual distraction existed in Beckstead's unfinished house. Where "there is an absence of evidence of the cause of plaintiff's injury[, we cannot know] whether [Hale] was distracted or merely inattentive to an obvious danger." Kotecki v. Walsh Constr. Co., 333 Ill.App.3d 583, 267 IIl.Dec. 402, 776 N.E.2d 774, 780 (2002) (citing Wreglesworth v. Arctco Inc., 317 Ill.App.3d 628, 251 IIl.Dec. 363, 740 N.E.2d 444, 454 (2000) (holding the distraction exception does not require landowners to guard against an invitee's inattention to an obvious danger)).

      . Hale also argued the district court erred in not allowing consideration of violations of OSHA regulations in determining liability. However, Hale correctly notes that OSHA regulations "do[ ] not create a [duty] where none existed before." See Tallman v. City of Hurricane, 1999 UT 55, ¶ 4, 985 P.2d 892 (holding that OSHA regulations are relevant as to breach, but that OSHA regulations do not create a duty). Because we hold that Beckstead owed no duty to Hale, we need not reach the issue of whether the district court erred in not allowing consideration of OSHA violations in this case.

      . For example, House v. Armour of America, Inc., 929 P.2d 340 (Utah 1996), aff'g 886 P.2d 542 (Utah Ct.App.1994), deals specifically with the notion of product liability. See id. at 342-43. Golding v. Ashley Central Irrigation Co., 902 P.2d 142 (Utah 1995), addresses lability under the Landowner Liability Act and Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169 (Utah 1991), addresses liability to trespassers and the attractive nuisance doctrine. See also Golding, 902 P.2d at 148; Pratt, 813 P.2d at 1173. I believe these arenas of the law are sufficiently different from the facts at issue here that it is unwise to conclude that the standards articulated therein necessarily apply to this factual situation.

      . In House, 886 P.2d at 548, we reaffirmed our pronouncement in Donahue v. Durfee, 780 P.2d 1275 (Utah Ct.App.1989), that the open and obvious danger rule is inconsistent with a comparative negligence system. Laws v. Blanding City, 893 P.2d 1083, 1085 (Utah Ct.App.1995), the case extensively relied upon by the majority, also cites Donahue favorably, but then, inexplicably, appears to depart from its principles. Id. at 1286. Thus, between Donahue in 1989 and House in 1994, we held firm to the idea that the open and obvious danger rule is inconsistent with a comparative negligence system.