Lee v. Special Indemnity Fund

Lee v. Special Indemnity Fund
1998 OK CIV APP 184
972 P.2d 37
70 OBJ 198
Case Number: 90300
Decided: 07/27/1998
Mandate Issued: 12/29/1998

JAMES D. LEE, Petitioner, vs. SPECIAL INDEMNITY FUND and THE WORKERS' COMPENSATION COURT, Respondents.

PROCEEDING TO REVIEW AN ORDER OF THE WORKER'S COMPENSATION COURT
HONORABLE NOMA D. GURICH, JUDGE

SUSTAINED

Richard L. Peaster, Tulsa, Oklahoma,For Petitioner,
Georgiana Peterson,Henry A. Meyer, III, Oklahoma City, Oklahoma, For Respondents.

 OPINION

CARL B. JONES, Vice Chief Judge

¶1 In this cause, the claim of Petitioner/Claimant, James D. Lee, against the Special Indemnity Fund was denied by the trial judge and that determination is here for review. Claimant's last injury was to the right shoulder and neck and was joint-petitioned as a 36% injury to the body as a whole. The trial judge determined that jurisdiction did not exist to proceed against the Fund, and the claim was denied. As grounds for reversal, Claimant reasons that it was error for the trial court to find that it did not have jurisdiction to proceed with its claim against the Fund. First, Claimant states he is a "physically impaired person" as defined by

¶2 In the first portion of his argument, Claimant maintains there is a "Crumby" finding in this cause sufficient to meet the threshold requirement of

¶3 Claimant's second proposition is that he had an obvious and apparent disability to his arm which qualified him as a "physically impaired person" independent of any previously adjudicated injuries. He complains that the trial court ruled against him before he had put on the evidence to establish this. The record reflects that Claimant was the first and only witness to testify. Claimant's attorney's direct examination of Claimant concluded when he announced that he had no further questions. At that point the trial judge announced:

"Well, I'm just going to rule as a matter of law then that you have not met your burden of proof. I haven't heard any evidence at all about combination of injury. I haven's heard anything that has anything to do with an obvious and apparent injury. ....

So I am going to find that I have no jurisdiction to proceed at this point, and the case is dismissed. You're excused."

¶4 The trial court may well have ruled before Claimant rested, but unfortunately the record contains no objection to the alleged premature decision, nor an offer of proof of any additional evidence Claimant sought to present. That Claimant now says that he had more evidence to present is insufficient. In Workers' Compensation Court, just as in other civil court proceedings, the general rule is that the exclusion of evidence at trial will not be reviewed on appeal unless a proper offer of the excluded evidence is made and included in the record.Midwest Scale Co. v. England, 1966 OK 23, 411 P.2d 531, 532. The appellant has the responsibility for presenting to the appellate court a record that sufficiently supports his allegations of error.Bailey v. Bailey, 1994 OK 6, 867 P.2d 1267, 1272;Davidson v. Gregory, 1989 OK 87, 780 P.2d 679, 682. Legal error will not be presumed from a silent record; it must be affirmatively demonstrated.First Federal Savings and Loan Assoc. v. Nath, 1992 OK 129, 839 P.2d 1336, 1342.

¶5 The record does not reflect that Claimant had additional evidence to present. This Court's review is limited to considering that which was presented to the trial court and included in the appellate record. Based on what is properly before us, no error is demonstrated.

¶6 SUSTAINED.

¶7 JOPLIN, P.J. and GARRETT, J., concur.