DUGAN v. SABRE INTERNATIONAL

DUGAN v. SABRE INTERNATIONAL
2001 OK CIV APP 138
39 P.3d 167
73 OBJ 163
Case Number: 95504
Decided: 10/16/2001
Mandate Issued: 11/09/2001
DIVISION IV
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

JACK DUGAN, Petitioner,
v.
SABRE INTERNATIONAL, CONTINENTAL CASUALTY INSURANCE and THE WORKERS'' COMPENSATION COURT, Respondents

REVIEW OF AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS'' COMPENSATION COURT

HONORABLE RICHARD L. BLANCHARD, TRIAL JUDGE

SUSTAINED

Jeffrey L. Parker, Javier Ramirez, Parker, Staggs & Associates, P.C., Tulsa, Oklahoma, for Petitioner
James B. Cassody, Michael Gilliard, McGivern, Gilliard & Curthoys, Tulsa, Oklahoma, for Respondents

TAYLOR, Judge

¶1 Claimant, Jack Dugan, appeals an order of a workers'' compensation court three-judge panel affirming the trial court''s finding that Claimant''s injury, which resulted from falling during a seizure, did not arise out of his employment. The issue on appeal is whether the panel''s order is supported by competent evidence. We find that it is and sustain it.

¶2 Claimant was employed as a welder for Employer, Sabre International. While carrying a 50- to 70-pound steel plate, Claimant had a seizure and fell to the floor, landing on the left side of his body. He filed a claim for compensation against Employer. The trial court determined that, although Claimant''s injury occurred in the course of employment, it did not arise out of employment. Claimant appealed the trial court''s order to a three-judge review panel of the workers'' compensation court, which affirmed the trial court''s order. Claimant appeals the panel''s order.

¶3 The issue of whether an injury arose out of employment presents a question of fact for determination by the workers'' compensation court. See Barnhill v. Smithway Motor Express,

¶4 In Marion Machine Foundry & Supply Co. v. Redd,

¶5 In McKeever Drilling Co. v. Egbert,

If he had fallen backwards, or in any other direction save the one in which he did fall, he perhaps would have fallen upon the bare floor of the building . . . , or upon the earth outside the building, neither of which would have presented a condition or hazard peculiar to claimant or to his situation in relation to his employment. Persons seized with epilepsy, vertigo, sunstroke, or other sudden and overpowering attacks usually fall where they are, and it is the presence of machinery, or height, or some other condition peculiar to the employment which increases the hazard or injury, but for the presence of which condition peculiar to the employment the person so seized would suffer no greater hazard of additional injury than one not so situated.

Id.

¶6 Acknowledging the general rule and relying on its exception, Claimant in the instant case points to carrying the 50- to 70-pound piece of steel as a risk factor peculiar to his employment that contributed to the fall. We reject Claimant''s argument.

¶7 It is undisputed that Claimant fell because of the seizure. Furthermore, it was undisputed at trial that the seizure was caused by a seizure disorder, from which Claimant had suffered for many years.

¶8 Because Claimant''s fall was idiopathic and because Claimant failed to show an increased hazard caused by a factor peculiar to his employment, we find that the panel''s order affirming the trial court''s finding that Claimant''s injury did not arise out of employment is supported by competent evidence.

¶9 SUSTAINED.

¶10 STUBBLEFIELD, P.J., concurs, and RAPP, J., dissents.

FOOTNOTES

1 At some point during these proceedings, Claimant seemed to be arguing that the stress of his job, including working long hours, caused him to have the seizure, thus entitling Claimant to a finding that his injury arose out of employment. However, Claimant abandoned this argument at trial.

2 Even if we accepted Claimant''s vague argument that the piece of steel somehow presented a peculiar risk, there is competent medical evidence in the record to support a finding that Claimant''s injuries were caused by his disorder and not by his employment. Having taken a complete history of Claimant''s condition, his past seizures, and the facts surrounding his fall, Employer''s expert witness opined that Claimant "merely had a seizure related to a premorbid condition, while he was at work," but that "[h]is work had nothing to do with causing the seizure."

RAPP, J., dissenting

¶1 I dissent. The issue is not whether Claimant suffered seizures but rather whether the injury arose from a risk associated with work. The incident occurred at work when he suffered a seizure, fell, and struck his head on a concrete floor. The injury occurred because his head hit his employer''s concrete floor - not because he had a seizure and fell.

¶2 The concrete floor is an incident and risk of employment! As the Supreme Court said in McKeever Drilling Co. v. Egbert,

Persons seized with epilepsy, vertigo, sunstroke, or other sudden and overpowering attacks usually fall where they are, and it is the presence of machinery, or height, or some other condition peculiar to the employment which increases the hazard of injury, but for the presence of which condition peculiar to the employment the person so seized would suffer no greater hazard of additional injury than one not so situated. The hazard of an injury from falling against the engine was one incident to the proximity of the engine to claimant''s work, and the injury actually received arose out of the employment.

¶3 I would reverse.