Dunkin v. Instaff Personnel, 102,580.

• Decision Date: 19 June 2007
• Docket Number: No. 102,580.,102,580.
• Parties: Craig E. DUNKIN, Petitioner, v. INSTAFF PERSONNEL, American Home Assurance Company, and The Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

164 P.3d 1057

2007 OK 51

Craig E. DUNKIN, Petitioner, v. INSTAFF PERSONNEL, American Home Assurance Company, and The Workers' Compensation Court, Respondents.

No. 102,580.

Supreme Court of Oklahoma.

June 19, 2007.

¶ 0 A worker sought workers' compensation benefits claiming to have suffered a work-related injury. The trial judge, Honorable Cherri Farrar, denied the claim and a divided three-judge panel sustained that decision. The Court of Civil Appeals vacated the order of the three-judge panel and remanded the matter to the Worker's Compensation Court.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; ORDER OF WORKERS' COMPENSATION COURT VACATED; CAUSE REMANDED TO WORKERS' COMPENSATION COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

John R. Colbert, Colbert & Colbert, Ardmore, OK, and Robert Highsaw, Oklahoma City, OK, for Petitioner.

Catherine C. Taylor, Kelly M. Greenough, Perrine, McGivern, Redemann, Reid, Berry & Taylor, P.L.L.C., Tulsa, OK, for Respondents.

COLBERT, J.

¶ 1 The issue in this matter is whether the three-judge review panel of the Workers' Compensation Court was presented with an order from the trial tribunal that was sufficient to afford meaningful review of the determination that Claimant, Craig E. Dunkin, "did not sustain an accidental personal injury arising out of and in the course of [his] employment." This Court holds that the Workers' Compensation Court's finding lacked the requisite definiteness and certainty for there to have been meaningful judicial review by the three-judge panel when it determined that the trial tribunal's determination "was not against the clear weight of the evidence." The order of the three-judge panel and the order of the trial tribunal are vacated, as is the opinion of the Court of Civil Appeals. This matter is remanded to the Workers' Compensation Court for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2 Claimant worked for Instaff Personnel (Employer) as a temporary worker assigned to the Dollar General Distribution Center. He filed a workers' compensation claim seeking medical benefits and an award of temporary total disability for an injury to his head, neck, and back. The Form 3 alleged that he "was loading [a] trailer [when a] box fell hitting claimant in [the] head and neck."

¶ 3 At trial, Claimant testified that it was his job to load truck trailers on the night shift at the Dollar General warehouse. He further testified that while he was stacking boxes, a fifty-pound case of detergent fell and injured him. According to Claimant, he looked for a supervisor and could not find one. He told a security guard that he was going to the emergency room and the security guard said he would pass that information on to a supervisor. Claimant was treated at the emergency room and was given pain medication. He testified that when he attempted to speak with his supervisor by phone the next day, he was told that he had been fired for walking off the job.¹

¶ 4 Claimant also presented a report from his medical expert, which was admitted without objection. The doctor opined that Claimant had suffered a work-related injury resulting in temporary total disability.

¶ 5 Employer's cross-examination of Claimant involved a two-prong attack on the claim, causation and Claimant's credibility. Claimant was questioned about a prior work-related injury from 1998. That injury was the subject of a joint-petition settlement in January 2001. The settlement was for injury to Claimant's "back, neck, feet, arms, and [settled] all claims to all parts of the body, known or unknown, arising out of the 8/3/98 incident." Claimant was also questioned concerning other injuries in 2001, 2002, and 2003, which required emergency room visits but that apparently did not result in workers' compensation claims.

¶ 6 Employer then sought to impeach Claimant's testimony with inconsistencies between Claimant's deposition and his testimony at trial.² Those inconsistencies involved the number and purpose of emergency room visits Claimant made between 1998 and 2005. They also involved the number and nature of Claimant's criminal convictions.

¶ 7 Employer's evidence consisted of the medical reports and an order approving a joint settlement from the prior compensable injury along with its expert's medical report concerning this claim for compensation. No objection was offered to these. The current medical expert found no permanent partial impairment to Claimant's spine and he noted that any period of temporary disability had passed. The expert did not state that Claimant had not suffered an injury.

¶ 8 The trial tribunal denied the claim for compensation. The order recited the statutory language and concluded that Claimant "did not sustain an accidental personal injury arising out of and in the course of claimant's employment with the above named respondent, as alleged in the claim for compensation filed herein." A divided three-judge panel sustained the trial tribunal's order stating that it "was not against the clear weight of evidence nor contrary to law."

¶ 9 The Court of Civil Appeals was also divided when it reversed the decision of the three-judge panel. The majority opinion vacated the decision finding no competent evidence to refute Claimant's evidence. It remanded the matter for the Workers' Compensation Court to "consider the amount of Claimant's temporary disability, if any, and medical treatment." The dissenting opinion reminded the majority that the Workers' Compensation Court "is the sole arbiter of [the] credibility of witness[es] and [the] weight given their testimony," quoting this Court's decision in Pearl v. Associated Milk Producers, Inc., 1978 OK 105, ¶ 11, 581 P.2d 894, 896. The dissent reasoned that, because there was "evidence casting Claimant's credibility into some doubt," the Workers' Compensation Court was not required to give his testimony any weight or make any specific finding as to why the claim was denied. This Court granted certiorari review.

STANDARD OF REVIEW

¶ 10 This Court pronounced the standard applicable to appellate review of an order of the Workers' Compensation Court in Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548. "Under this standard our responsibility simply is to canvass the facts, not with an object of weighing conflicting proof in order to determine where the preponderance lies but only for the purpose of ascertaining whether the tribunal's decision is supported by competent evidence." Id. ¶ 12, 684 P.2d at 552 (footnote omitted). By stare decisis, this Court must apply the any competent evidence test to fact determinations made by the Workers' Compensation Court.

¶ 11 Parks noted that under section 3.6(A) of the Workers' Compensation Act, Okla. Stat. tit. 85, §§ 1 through 211 (2001 & Supp. 2006), intra-court review by a three-judge panel "is limited by the clear-weight-of-the-evidence standard, [and therefore] a panel may reverse or modify the trial judge's findings only after these findings have been determined to be lacking in the requisite evidentiary foundation." Parks, 1984 OK 53, ¶ 10, 684 P.2d at 551.

¶ 12 Under the two-tiered review process described in Parks, only issues of law receive appellate review. Questions of fact made by the trial tribunal receive review only by a three-judge panel under the clear weight of the evidence standard. Thus, the three-judge panel is equivalent to an appellate court of last resort when it comes to actually weighing the evidence to determine whether the trial tribunal has correctly determined an issue of fact. Therefore, a thorough and accurate review of issues of fact by that panel is required.

¶ 13 The dissent in Parks recognized that a three-judge panel might choose some competent evidence on which to reverse the trial tribunal despite the fact that the tribunal's decision was supported overwhelmingly by the evidence. Id. ¶ 2, 684 P.2d at 553 (Wilson, J., dissenting); see also Owings v. Pool Well Serv., 1992 OK 159, 843 P.2d 380 (Wilson, J., dissenting). In an attempt to address that concern, the majority opinion cited the longstanding requirement that the Workers' Compensation Court must make specific findings of fact. Parks, 1984 OK 53, ¶ 14 n. 19, 684 P.2d at 552 n. 19. As this Court explained in Benning v. Pennwell Publishing Co., "[t]he Workers' Compensation Court is required to make specific findings of the ultimate facts responsive to the issues formed by the evidence as well as conclusions of law upon which its order is to be rested." 1994 OK 113, ¶ 7, 885 P.2d 652, 655 (footnote omitted). Further, "[w]hen these elements are not present . . . or are too vague and uncertain for judicial interpretation, we will not hypothesize about the evidence upon which the trial tribunal may have relied to arrive at its decision." Id. (footnote omitted).³

¶ 14 As early as 1945, this Court embraced the rule that "[i]t is the duty of the State Industrial Commission [now the Workers' Compensation Court] to make specific findings of the ultimate facts responsive to the issues as well as the conclusions of law upon which an order is made granting or denying an award of compensation to a claimant." Corzine v. Compress, 1945 OK 345, ¶ 0, Syl. 1, 196 Okla. 259, 164 P.2d 625, Syl. 1. This Court also set out the consequence for ignoring the rule. "Where the findings of fact and conclusions of law . . . are too indefinite and uncertain for judicial interpretation, this court, on appeal, will vacate the order for further proceedings." Id. at Syl. 2. This rule appears in numerous decisions spanning the decades since that time.⁴

MEANINGFUL REVIEW BY THE THREE-JUDGE PANEL

¶ 15 Meaningful review is facilitated by an order from the trial tribunal from which the specific basis for its decision to grant or deny a claim can be determined. This requirement is not a mere technicality. "[O]n-the-record findings of ultimate facts responsive to...