PAULS VALLEY TRAVEL CENTER v. BOUCHER

PAULS VALLEY TRAVEL CENTER v. BOUCHER
2005 OK 30
112 P.3d 1175
Case Number: 100169
Decided: 05/03/2005

THE SUPREME COURT OF THE STATE OF OKLAHOMA

PAULS VALLEY TRAVEL CENTER and COMPSOURCE OKLAHOMA, Petitioners,
v.
STEPHANY MAURINE BOUCHER and the WORKERS' COMPENSATION COURT, Respondents.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. I

¶0 Claimant sought, in the Workers' Compensation Court (WCC), benefits for two separate on-the-job injuries. The trial judge denied an award for the first claim. He granted benefits for the second, finding the injury was not the result of an idiopathic condition. A three-judge panel affirmed. The Court of Civil Appeals vacated the award, ruling as a matter of law, that the latter injury was the result of an idiopathic condition. On certiorari granted upon claimant's petition,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE
REVIEW PANEL'S ORDER IS REINSTATED.

H. Lee Endicott, III, and Donald A. Bullard, Bullard & Hoehner, P.C., Oklahoma City, for Petitioner.
John Sprowls, Pauls Valley, Oklahoma, for Respondent.

¶1 The broader question presented for our review is whether the Court of Civil Appeals (COCA) failed to apply the proper standard of review when it vacated the three-judge panel's award for medical treatment and compensation. The narrow issue before us is whether the trial tribunal's order - that claimant's injury was not idiopathic but compensable because it arose out of her employment - is supported by competent evidence.

I.
ANATOMY OF THE LITIGATION

¶2 The facts are uncontested. Stephany Maurine Boucher (claimant or Boucher), a cashier

¶3 Boucher - the sole witness at the hearing - testified she had a non-work related injury to the same knee in 1999 (a possible internal derangement).

¶4 The trial judge found 1) the first incident not to be compensable because the worker was on a personal mission

¶5 Employer challenged, as unsupported by competent proof, the trial tribunal's finding that Boucher's injury was not the result of an idiopathic condition and that it arose out of her employment. Employer asserts there was no evidence to show that claimant's injury was anything else than an idiopathic episode.

II.
STANDARD OF REVIEW

¶6 Whether an injury arises out of and in the course of a claimant's employment presents a question of fact to be determined by the trial judge.

III.
A.
ARGUMENTS ON CERTIORARI

¶7 Boucher's certiorari petition urges 1) COCA's ruling violates the applicable review standard because there was competent evidence to support the trial judge's order that her injury was not the result of idiopathic harm, 2) there was no evidence that her injury resulted from an idiopathic condition; on the contrary, the proof indicates it resulted from on-the-job walking - a risk factor peculiar to her employment,19 and 3) even if the injury were occasioned by idiopathic harm it is nonetheless compensable.20

¶8 Employer responds COCA's ruling was correct because the record is devoid of evidence that claimant's knee injury was anything other than an idiopathic episode.21 Employer urges claimant failed to offer evidence of an employment-related strain that caused her injury; rather, her testimony and other evidence confirms her injury occurred because her knee simply gave way. Neither did she offer proof her injury resulted from an employment-related hazard that increased the risk of injury from an idiopathic harm. In short, employer insists claimant's injury was clearly the result of an idiopathic harm, unrelated to the risk of her employment.

B.
CLAIMANT'S KNEE STRAIN IS IPSO FACTO AN ON-THE-JOB
INJURY. EMPLOYER FAILED TO REFUTE THE CAUSAL NEXUS,
ESTABLISHED BY CLAIMANT'S EVIDENCE, THAT HER INJURY WAS
NOT THE RESULT OF AN IDIOPATHIC EPISODE.

¶9 A compensation claimant must satisfy a two-pronged statutory test by evidentiary showing that the bodily injuries for which benefits are sought 1) occurred "in the course of" the employment22 and 2) "arose out of" the employment.23 These elements are separate and distinct. Both must be established before recovery may be allowed. Not all injuries that occur on the job are compensable. This is so because a connection must be shown between the conditions of one's employment and the encountered causative risk that resulted in the worker's harm. Risks not reasonably connected with the claimant's work - those which are purely personal - are not compensable if they constitute the sole cause of the employee's injury.24

¶10 Neither party suggests that implicated here is the first prong of the statutory test - that which requires the injury to have been "in the course of employment." Today's certiorari deals solely with the second prong's requirement of compensation law's evidentiary pattern - whether claimant's injury arose out of her employment. To establish that an injury occurring on the job arose out of employment, a claimant must show 1) the nature of the work performed at the time of the injury, which may be established by lay testimony, and 2) a nexus between the work activity and the harm for which compensation is sought. The latter must be established by expert medical opinion.25

¶11 Harm suffered by a worker, which consists of a strain, constitutes an accidental injury if it occurred while one was going about one's work performance in the usual and ordinary manner though nothing unusual occurred to cause the strain.26 Strain and exertion arising out of and in the course of employment constitutes ipso facto an accidental injury.27 In short, the strain stands recognized as one's accidental injury.28 A claimant with a pre-existing disease or infirmity may experience an internal injury of a sudden, unusual and unexpected nature which will nevertheless be deemed accidental in character, although its external cause is attributable to ordinary work performed in a usual manner and without any connected untoward movement.29

¶13 Once claimant has established that injury arose out of employment, the burden shifts to the employer to refute work-related causation. Proof of an idiopathic harm that caused the injury is a liability-defeating defense: a mere legal conclusion of injury from an idiopathic condition will not suffice. Employer has not made here the required showing. Dr. H's report provides a diagnosis of claimant's injury but offers no opinion as to its cause.

¶15 There is competent evidence to support the trial tribunal's order. COCA's analytical scheme presses its review of the record far beyond the boundary line drawn by the standard of review allowed by law for appellate-court re-examination of the trial tribunal's findings.

IV.
SUMMARY

¶16 Claimant's knee strain is ipso facto an on-the-job injury. Once a claimant, as this one did here, has established a prima facie case, the burden shifts to the employer to refute the presence of a causal nexus between the worker's injury and her employment. To effectively refute this burden, employer must prove idiopathic harm is the sole cause of employee's injury. A mere legal conclusion of idiopathy is not enough. Employer's proof does not meet the required showing. There is competent evidence to support the order of the three-judge review panel. Our statutory duty clearly calls for its sustension.

¶17 On certiorari previously granted, COCA's opinion is vacated and the review panel's order is reinstated.

¶18 WINCHESTER, V.C.J. AND LAVENDER, HARGRAVE, OPALA, KAUGER, EDMONDSON, TAYLOR AND COLBERT, JJ., CONCUR.

¶19 WATT, C.J., DISSENTS.

FOOTNOTES

1 Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

2 Claimant also performed customer service and cleaning duties.

3 Trial transcript p. 10.

4 Trial transcript p. 16.

5 Claimant's testimony dealing with her three knee injuries is somewhat confusing.
*** "Q. During any point in time after that incident did you notice any kind of weakness at all in your right knee?
A. Which incident?
Q. After the one in '99?
A. Did I notice any weakness after the - no. Not until - - not until the December of 2002 accident." *** Trial transcript, p.16.
"Q. All right Well, at Page 24 -
A. From December of '99 until May 1st, yes, I had problems with it every now and then. I also stated in there that Tina, which is the lady I work with, knew about it bothering me, and that also Dorothy Coon knew about it bothering me.
Q. All right. Just to clarify, the question was asked about the date in December, and you said it occurred on December 9th. And then going on at Page 24, Line 1, you responded, 'It hurt for a couple of days, but then after that it was fine and I didn't think anything about it. The lady that I worked with, she seen it. She talked to me about it. And then after that I hurt it again on May 1st.'
So now you are saying that - - you're saying that you did continue to have problems after that incident?
A. After, yes." *** Trial transcript p. 17.

Claimant's testimony dealing with all of the knee incidents conflicts somewhat with her deposition answers and with the emergency room reports submitted in evidence. The Paul's Valley General Hospital Emergency Department Record (offered by both parties) shows that claimant related a two-year history of knee problems. On cross-examination claimant denied she reported a two-year history of knee pain.

The Norman Regional Hospital Emergency Department Record (offered by both parties) reveals claimant reported an injury three years ago that healed on its own but does not reference the alleged 2002 on-the-job injury. On cross-examination claimant stated she did inform the hospital and the doctor about the December, 2002 incident.

6 Dr. H's medical report shows he believes claimant "has sustained an anterior cruciate ligament tear of her right knee and now has probably a displaced bucket handle tear of the medical meniscus and a locked knee from this." His report reveals claimant related some slipping episodes, and on 1 May 2003 she re-injured her knee. Report of Dr. H.

7 Dr. E reported, "[i]n my opinion, this injury arose out of and in the course of the employee's employment with the above employer and is causally connected to the above described accident." Report of Dr. E, p.3.

8 The record reveals that although Dr. E's report was admitted in evidence, its weight and credibility was to be considered at the decisional stage.

9 Claimant did not seek review of this ruling and it is not here for review.

10 A scrivener's error in the trial judge's order was corrected by the panel.

11 Employer urges claimant failed to offer evidence of an employment-related strain that caused her injury; rather, her testimony and evidence confirmed her injury occurred because her knee simply gave way. Neither did she offer proof that the injury resulted from an employment-related hazard that occurred because of an antecedent idiopathic episode. Claimant responds 1) no evidence was offered that shows her injury was idiopathic in nature and not the result of walking - a risk factor peculiar to her employment and 2) even if her injury were the result of an idiopathic condition it was still compensable.

12 COCA's opinion cites to Flanner v. Tulsa Public Schools, 2002 OK 8, ¶ 7, 41 P.3d 972, 974, for the proposition that where an idiopathic condition is the sole cause of an employee's harm, and no other factor operates to contribute to the injury, no compensation may be awarded.

13 Corbett v. Express Personnel, 1997 OK 40, ¶ 11, 936 P.2d 932, 935; Thomas v. Keith Hensel Optical Labs 1982 OK 120, ¶ 7, 653 P.2d 201, 203; American Management Systems, Inc. v. Burns; 1995 OK 58, ¶ 6, 903 P,2d 288, 291.

14 Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, ¶ 6, 958 P.2d 795, 798 (citing Thomas, supra note 13, at ¶ 7, at 203).

15 Lanman, supra note 14, at ¶ 6, at 798 (citing Liebmann Arctic Ice Co. v. Henderson 1971 OK 35, ¶ 3, 486 P.2d 739, 740).

16 Controlling provisions of 85 O.S. 2001 § 26 clearly state that "[t]he decision of the Court [Workers' Compensation Court] shall be final as to all questions of fact, and except as provided in. . .[§ 3.6], as to all questions of law."

17 Lanman, supra note 14, at ¶ 6, at 798 (citing Iwunoh v. Maremont Corp., 1984 OK 8, ¶ 4, 692 P.2d 548, 549; Matter of Death of Sade, 1982 OK 91, ¶ 5, 649 P.2d 538, 540).

18 Lanman, supra note 14, at ¶ 6, at 798 (citing Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 549-52).

19 "'Injury' or 'personal injury' means only accidental injuries arising out of and in the course of employment . . ." ***(emphasis added) 85 O.S. 2001 § 3 (12)(a).

20 This is so because walking, even if generally deemed a neutral risk, was here a hazard peculiar to her employment. Claimant cites Halliburton v. Alexander, 1976 OK 16, 547 P.2d 958, for the proposition that where employment contributes to an employee's risk or aggravates a pre-existing weakness the injury is compensable.

21 Employer also contends the trial tribunal's order is facially defective. This is so because it provides the claimant's "knee gave out while [she was] stepping up to a register to wait on a customer." No evidence was produced that indicates the event took place other than on a level floor. Although COCA did not address the issue on appeal, this wording does not make the order fatally defective. We assume the trial judge's order merely indicates claimant was stepping toward the cash register at the time the injury occurred.

22 The term "in the course of employment" relates to the time, place or circumstances under which the injury is sustained. Corbett, supra note 13, at ¶ 7, at 933-34 n.2; Thomas, supra note 13, at ¶ 4, at 202; R.J. Allison v. Boling, 1943 OK 43, ¶ 4, 134 P.2d 980, 982, 192 Okl. 213.

23 The term "arise out of employment" contemplates the causal connection between the injury and the risks incident to employment. Thomas, supra note 13, at ¶ 4, at 202; Richey v. Commander Mills, Incl,1974 OK 47, ¶ 13, 521 P.2d 805, 808; Graham v. Graham, 1964 OK 68, ¶ 5, 390 P.2d 892, 893.

24 Flanner, supra note 12, at ¶ 7, at 974.

25 Hughes v. Cole Grain Co., 1998 OK 76, ¶ 6, 964 P.2d 206, 208.

26 Ben Hur Coal Co. v. Orum, 1961 OK 303, ¶ 9, 366 P.2d 919, 920 (citing Liberty Glass Co. v. Guinn, 1953 OK 362, ¶ 13, 265 P.2d 493, 495 and Gulf Oil Corp. v. Rouse, 1949 OK 205, ¶ 7, 214 P.2d 251, 253).

Today's cause is factually similar to that of Phillips Pipe Line Co., v. Hardy Brown, 1956 OK 188, ¶ 6, 301 P.2d 689, 690. There a claimant who strained his back as he stepped from a motor vehicle while in defendant's employ was held to have sustained an accidental injury arising out of and in the course of employment. Phillips, supra. Phillips distinguishes factual situations dealing with strain-induced injury from those where there is no evidence of strain that caused the disability and are hence noncompensable. Phillips, supra, at ¶ 8 at 690. Oklahoma's extant jurisprudence is replete with compensation law's recognition of strain-induced workers' injuries. See Safeway Stores v. Simons, 1958 OK 260, ¶ 17, 331 P.2d 934, 937 (claimant who sustained a dislocated shoulder while reaching beneath a counter to pull out a meat tray while on the job sustained a work-related injury); Acme Material Co. v. Wheeler, 1954 OK 361, ¶ 13, 278 P.2d 234, 238 (employee suffered a work-related injury while operating a diesel shovel); Evans-Wallower Lead Co. v. Dry, 1936 OK 543, ¶ 6, 61 P.2d 561, 178 Okl. 48 (employee who sprained his back while lifting a lever to adjust a pulley belt sustained a work-related injury); Guinn, supra, at 13 at 495 (employee who strained her back from lifting and placing bottles on a conveyor belt suffered an on-the-job injury). Past compensation jurisprudence also supports benefits for heart-related injuries or death where antecedent strain or exertion arising out of and in the course of employment is either the sole or a contributing cause of pathology. See Young v. Neely, 1960 OK 129, ¶ 9, 353 P.2d 111, 113; Refrigerated Transport Inc. v. Creek, 1979 OK 11, ¶ 19, 590 P.2d 197, 200; Gulf Oil Corp. v. Harris, 1967 OK 22, ¶ 10, 425 P.2d 957, 962; H.J. Jeffries Truck Line v. Grisham, 1964 OK 242, ¶¶ 6, and10, 397 P.2d 637, 640; Orum, supra.

27 Neely, supra note 26, at ¶ 9, at 113 (citing Choctaw County v. Bateman, 1952 OK 387, ¶ 18, 252 P.2d 465, 468-69, 208 Okl. 16).

"[T]he term accidental injury is not to be given a narrow or restricted meaning, but is to receive broad and liberal construction . . . An 'accident' is an event happening without any human agency, or if happening through human agency, an event which, under the circumstances, is unusual and not expected to the person to whom it happens." Bateman, supra note 27, at ¶ 9, at 469.

28 Bateman, supra note 27, at ¶18, at 468-69; Guinn, supra note 26, at ¶ 13, at 495.

29 Internal injury produced by work-connected strain or exertion is accidental in character. Grisham, supra note 26, at ¶¶ 6 and10, at 640 (citing Kelley v. Enid Terminal Elevators, 1962 OK 141, ¶¶ 10-11, 372 P.2d 589, 592 and Orum, supra note 26, at ¶ 9, at 920).

30 Grisham, supra note 26, at ¶ 8, at 640 (citing Black, Sivalls & Bryson, Inc., v. Coley, 1962 OK 2, ¶ 7, 367 P.2d 1017 at 1020).

31 See supra note 6 for the diagnosis made by Dr. H.

32 Thomas, supra note 13, at ¶ 7, at 203.

33 See part II of the text.

34 Boardman Co. v. Eddy, 1961 OK 181, ¶ 3, 363 P.2d 821, 823.

The term "idiopathy"is defined as "[a] self-originated injury or one of unknown causation." Dorland's Illustrated Medical Dictionary 660 (23rd ed. 1951). Idiopathy is a morbid state of spontaneous origin. It is neither sympathetic nor traumatic. Dorland's supra. An idiopathic disease is one arising without apparent extrinsic cause. Stedman's Medical Dictionary 690 (5th ed. 1982).

35 The term "prone" means "having a tendency, propensity, or inclination." Webster's Third New International Dictionary 1816 (3rd ed. 1961).