HAWKINS v. OKLAHOMA COUNTY COURT CLERKS OFFICE

HAWKINS v. OKLAHOMA COUNTY COURT CLERKS OFFICE
2001 OK CIV APP 83
26 P.3d 124
72 OBJ 2189
Case Number: 95603
Decided: 05/29/2001
Mandate Issued: 06/21/2001
DIVISION IV
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

EMMA L. HAWKINS, Petitioner
v.
OKLAHOMA COUNTY COURT CLERK'S OFFICE, OWN RISK, and THE WORKERS' COMPENSATION COURT, Respondents

PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT

HONORABLE D. CRAIG JOHNSTON, TRIAL JUDGE

SUSTAINED

Karen J. Leonard, Wyatt, Austin & Associates, Ada, Oklahoma, for Petitioner
Robert H. Macy, District Attorney, Cassandra M. Williams, Assistant District Attorney, Oklahoma City, Oklahoma, for Respondents

RAPP, Judge

¶1 Emma L. Hawkins (Claimant) appeals the decision of the Workers' Compensation Court in favor of Oklahoma County Court Clerk's Office (Employer) which denied her claim for temporary total disability benefits and medical care.

BACKGROUND

¶2 The trial court based its decision upon application of 85 O.S. Supp. 2000, § 24.2(A).1

¶3 Claimant amended her Form 3, without objection, to allege an injury to her wrist occurring on an unspecified date in January 2000. She testified that, while at work handling files, she felt her wrist "pop," but that it seemed to recover. She continued to work that day but did not work the next day. She did not tell a supervisor about the incident or seek medical treatment at that time.

¶4 Claimant continued to work until April of 2000. She did not mention the injury incident to Employer during January, February, or March.

¶5 Claimant does not seriously contest the fact that she first notified Employer about her injury on April 2 or 3, 2000. She testified that, until then, she did not think her injury was serious. She acknowledged that she had received instructions during her work-orientation period about reporting injuries. On April 3, 2000, she received medical attention and the medical records show that she gave a history of a problem with her wrist existing for about three months.

¶6 Claimant's medical report attributed her wrist injury to the work incident. Employer's medical report recited that Claimant gave a history of injury in September 1999, while at work handling files. The Employer's physician's report cites additional history wherein Claimant reported injuring her wrist while doing laundry at home on the Sunday in April 2000, prior to Claimant's medical treatment on April 3, 2000. Claimant admitted that she told Employer's physician about the laundry incident and that her wrist was painful on that occasion.

¶7 The trial court found that the claimed injury had not been reported within thirty days of its occurrence. The court further ruled that Claimant had not overcome the presumption established by Section 24.2(A) and held for Employer. Claimant appeals.

STANDARD OF REVIEW

¶8 To be entitled to workers' compensation benefits, Claimant must prove that the injury arose out of and in the course of employment. Frew v. McDonnell Douglas Indus. Indem. Co.,

¶9 Competent evidence is evidence which tends to prove the facts essential to the decision of the court. Oklahoma Gas & Electric Co. v. Black,

ANALYSIS AND REVIEW

¶10 The question before the trial court was whether Claimant's injury occurred in the course of employment.

¶11 Here,

¶12 A presumption causes a fact to be assumed unless the party against whom the presumption operates persuades the trier of fact otherwise.

¶13 The Claimant's burden of proof on the work-related question exists independently of Section 24.2(A).

¶14 Historically, a presumption is a procedural rule which requires that the existence of fact "B" be assumed when fact "A" (basic fact) is established and that the assumed existence of fact "B" continue until some specified condition. The procedural consequences of the rule transfer to the party against whom the presumption operates the duty to present evidence to the contrary. Walker v. Telex Corp.,

¶15 Thus, a presumption ordinarily operates as an aid to the party who has the burden to prove a specific fact. It allows that party to prove an alternate fact which then gives rise to the ultimate fact which had to be proven in order to establish a claim or defense. As a result, the burden of producing other evidence to controvert the existence of the ultimate fact historically then shifted to the other party. Rotramel,

¶16 However, this shift of duty to present other evidence did not resolve all questions about the procedural effect of a presumption. The question then became whether the effect of the presumption was solely to shift the burden of producing evidence or whether the burden of persuasion also shifted.

¶17 Under the former, the sole effect of the presumption was to force the other party to controvert the ultimate or presumed fact. If the party did controvert the ultimate fact then the presumption disappeared and the case stood for decision on the facts and inferences from the facts. The burden of persuasion remained with the party who had the burden of proof. Rotramel,

¶18 A different result follows when the burden of persuasion also shifts to the party against whom the presumption operates. In that situation, the presumption does not disappear but rather it continues so that the opponent must also persuade the trier of fact that the presumed fact does not exist. Evidence Subcommittee's Note,

¶19 The Oklahoma Evidence Code reaches a compromise. If the basic fact has no probative value of the existence of the presumed fact, then the presumption merely serves as a means to allocate the burden to produce evidence and disappears once the evidence is produced. However, if the basic fact is probative of the presumed fact then the presumption also serves to shift the burden of persuasion to the opponent.

¶20 However, in the case here, the "presumption" established in

¶21 Without dispute, whether an injury occurs in the course of employment is a question of fact to be determined by the trial court. The fact that an injury goes unreported by a potential claimant for some period of time in excess of thirty days does not, standing alone, compel the conclusion that the injury did not arise "in the course of employment." The delay in reporting may, or may not, be relevant on the issue.

¶22 Thus, but for the intervention of

¶23 The historic question is presented again because, unlike a normal presumption, the "presumption" here operates as a hurdle to the party with the burden of proof and not as an aid to establish a fact necessary to the case. Again, the statutory "presumption" results in the assumption that a fact does not exist.

¶24 A claimant's proof will necessarily disclose that there has been a delay in reporting the injury.

¶25 It would be senseless to hold here that the "presumption" does not disappear. The continuation of the "presumption" would only mean that the Claimant has the burden of persuasion. The Claimant had that burden irrespective of the existence of the "presumption." Thus, in order for the statutory "presumption" to have any purpose and meaning whatsoever, it must simply be a rule for the allocation of the burden to produce evidence. Stated in other words, a claimant, in the case of a delayed notice, who fails to overcome the statutory "presumption" will have failed to make a prima facie case because the effect of the statutory "presumption" will then be to compel the conclusion that the injury did not arise out of or in the course of employment. This result is consistent with the language of the statute wherein it calls for the claimant to "overcome the presumption by a preponderance of the evidence."

¶26 The proper procedure would be for the trial court to simply examine only the evidence presented by Claimant for the purpose of making the preliminary ruling of whether Claimant had satisfied her burden to produce evidence. Moreover, in the case of the thirty day, or more, delay in reporting the injury, the trial court's examination in support of this preliminary ruling must include a determination of whether the Claimant has satisfied this burden by a preponderance of the evidence insofar as the effect of delay on the issues of "arise out of" and "in the course of" employment. In other words, the Claimant's evidence must overcome the presumptive effect from the fact of delay by a preponderance of the Claimant's evidence. The Claimant's evidence is examined in contrast to the statutory "presumption" unaided at this stage, however, by the Employer's evidence.

¶27 If the trial court decides that a claimant has satisfied his burden to present evidence then it necessarily follows that, as to the issue presented by the fact of delay, the claimant has overcome the statutory "presumption." Given that the claimant has overcome the "presumption" then neither the statute nor other legal authorities require that the "presumption" be resurrected and the case stands for decision on its competing facts. In other words, the evidence of the claimant has established preliminarily that the fact which was assumed not to exist, the arise out of and in the course of employment elements, does exist. However, it does not follow that the fact of injury arising from employment is established for the purpose of decision-making and thereafter the trial court remains free to weigh the total evidence presented at trial and to reach a final conclusion, that is, judgment.

¶28 Historically, workers' compensation law indulged in the presumption that a claim for injury comes within the provisions of the Workers' Compensation Act. In re Death of May,

¶29 Here, the only question was whether Claimant's injury arose in the course of her employment. Under the procedure discussed above, examination of Claimant's evidence discloses that the injury occurred either at work or at home while doing household laundry. Section 24.2(A) creates a presumption that the injury occurred at home because of the absence of notice. The trial court, and not this Court, has the authority to weigh the Claimant's evidence to decide whether Claimant has presented a prima facie case, that is here, whether Claimant has also overcome the presumption that arises from lack of notice.

¶30 Claimant has not demonstrated that the trial court erred as a matter of law by failing to correctly proceed with the analysis of the evidence. The weight and sufficiency of the evidence are matters for the trial court. There is competent evidence in the record to support the trial court's conclusion that Claimant's evidence did not overcome the Section 24.2(A) presumption by a preponderance of the evidence. The decision of the trial court is sustained.

¶31 SUSTAINED.

¶32 TAYLOR, J., concurs, and STUBBLEFIELD, P.J., concurs in result.

FOOTNOTES

1 The statute provides, in part:

§ 24.2. Notice of injury to employer

A. Unless an employee or former employee gives oral or written notice to the employer or former employer within thirty (30) days of the date an injury occurs or the employee receives medical attention from a licensed physician during the thirty-day period from the date an injury occurred, the rebuttable presumption shall be that the injury was not work related. Such presumption must be overcome by a preponderance of the evidence.

2 Transcript p. 25.

3 Transcript p. 34.

4 In the course of employment relates to the time, place or circumstances under which the injury is sustained. Corbett v. Express Personnel, 1997 OK 40, 936 P.2d 932, n. 2.

5 Claimant's Brief argues, without citation of authority, that Section 24.2(A) denies her Due Process of Law. Although under the Appellate Rules the argument may be disregarded, the remaining review demonstrates that Section 24.2(A) does not, in fact, violate Procedural Due Process criteria.

6 The components of the burden of proof are the burden to produce evidence and the burden of persuasion. Whinery, Commentary on the Law of Evidence, §§ 8.03, 8.05 (West Publishing Co. 1994). As succinctly stated in this text:

In reality 'proof', 'persuasion' and 'evidence' are three distinct concepts. 'Proof' is the conviction of the judge or jury, depending upon the method of trial, that a matter of fact does or does not exist. 'Persuasion' describes the intellectual process employed by the trier of fact in concluding that a fact is proved or disproved. 'Evidence' is the source of 'persuasion' and, ultimately, of 'proof.'

Id

7 See Whinery, Commentary on the Law of Evidence, §§ 8.03-8.07 (West Publishing Co. 1994) for a discussion pertaining to the significance of the burden of persuasion and the burden to present evidence.

8 A "presumption of fact" represents the process by which the existence of one fact is inferred, that is, presumed to exist, from proof of some other fact or facts and which logically follows from the existence of the proven fact, or facts. 12 O.S. 1991, §§ 2301-2303; Smith v. Illingsworth, 1962 OK 167, ¶ 4, 373 P.2d 78, 80.

9 The Form 3 and Form 10, taken together, will disclose the date of notice and the termination of employment and the issues in dispute.