Mobile Mini Inc. v. Dugger
| Decision Date | 24 January 2011 |
| Docket Number | No. 107952.,107952. |
| Citation | 2011 OK CIV APP 31,249 P.3d 517 |
| Parties | MOBILE MINI, INC. and Liberty Mutual Insurance Company, Petitioners,v.Mikeal C. DUGGER and The Oklahoma Workers' Compensation Court, Respondents. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
OPINION TEXT STARTS HERE
Released for Publication by Order of the Court
of Civil Appeals of Oklahoma, Division No. 2.
Proceeding to Review an Order of the Workers' Compensation Court; Honorable John M. McCormick, Trial Judge.SUSTAINED.Linda S. Foreman, Adelson, Testan, Brundo & Jimenez, Oklahoma City, OK, for Petitioners.Bret A. Smith, Rick Paynter, The Law Office of Bret A. Smith, Muskogee, OK, for Respondent.JOHN F. FISCHER, Judge.
¶ 1 Employer Mobile Mini, Inc., seeks review of the trial court's order finding that Claimant Mikeal C. Dugger sustained a compensable injury and awarding temporary total disability (TTD) benefits. Based on our review of the record and applicable law, we sustain the order.
¶ 2 The sixty-two-year-old Claimant worked as a truck driver for Employer, delivering and retrieving large, metal storage containers. He filed a Form 3 alleging that on April 6, 2009, he sustained work-related injuries to his head, neck ears and eyes resulting from a blow to the head while retrieving a storage container from one of Employer's customers. Employer admitted that Claimant was injured but denied that his employment was the major cause of those injuries. Claimant had no memory of how he was injured, and no one witnessed the injury as it occurred.
¶ 3 At the time he was injured, Claimant had worked for Employer for over eight years. He was Employer's lead driver and by all accounts a reliable and conscientious employee. Claimant's tractor-trailer was equipped with a GPS device that enabled Employer to track the vehicle's movement and compile reports regarding Claimant's assigned routes. Employer stipulated at trial that the GPS report and trip log for the date of the incident showed that Claimant made all of the stops on his daily trip sheet and returned back to Employer's parking lot “[w]ith no deviations of any sort.”
¶ 4 Claimant testified that he reported to work at about 5:00 a.m. on the date of his injury, picked up his daily trip sheet, and began the pick-ups and deliveries along the assigned route. There were four stops on Claimant's trip sheet. It was undisputed that it was unusually windy that day.
¶ 5 Claimant's last scheduled stop for the day was Fiber Pad, a business in an industrial park with which Claimant was familiar through prior deliveries. Claimant was to retrieve a container from Fiber Pad and return it to Employer's lot.
¶ 6 On his arrival at Fiber Pad, Claimant checked in at the office to ask the manager which container he was supposed to pick up. He remembered loading the container on the trailer and starting to drive away but then, because of the wind, stopping to strap down the container. To tighten the straps, he used a bar that was kept in tool box underneath the back end of the trailer. Claimant testified that the last thing he remembered before his injury was stooping down to return the bar to the tool box. The GPS showed that Claimant returned to Employer's parking lot at approximately 12:26. He had no memory of driving back there.
¶ 7 There was no direct evidence or eyewitness testimony of the injury-causing event. The trial court questioned Claimant at length regarding the usual steps that were involved in the task of strapping down a container. Claimant explained that he would lower the trailer, throw the tie-down straps over the trailer and tighten them down with the strap-tightening bar. He would then return the bar to the toolbox and climb into the truck's cab.
¶ 8 The GPS trip log established that Claimant arrived at Fiber Pad at 11:42 a.m. The manager of Fiber Pad testified that he spoke with Claimant and then, because he was interested in the process, he watched while Claimant successfully loaded the storage container onto the trailer. He did not observe anything unusual about Claimant's appearance or behavior. He described Claimant as easy to talk to and pleasant. Before he went back into his office, the Fiber Pad manager saw Claimant drive to another part of the complex, and then stop and climb down from the truck. He stated that he thought that Claimant was going to strap down the storage container, because he had not done so at the time he loaded it onto the trailer. Later, when the Fiber Pad manager was showing Employer's dispatcher the packed-down gravel road where Claimant had stopped the truck, he noticed a fresh ridge or “line of loose gravel” approximately two inches in height and ten feet long. He also saw a “bright red liquid substance” on the packed-down gravel.
¶ 9 Employer's manager/dispatcher testified and provided further details regarding the events on the date of Claimant's injury. When the dispatcher returned from lunch, she found Claimant in the parking lot. She saw that the back of Claimant's head was matted with dried blood and there was blood on his shirt. She described Claimant as incoherent, and stated that Claimant did not know what had happened to him. Less than thirty minutes after seeing Claimant, Employer's dispatcher was at Fiber Pad, attempting to determine what had happened. The Fiber Pad manager directed her to the area where he had last seen Claimant. On the gravel road, Employer's dispatcher noticed what appeared to her to be a “big puddle of blood” that “was still wet.” She took pictures of the scene.
¶ 10 Employer's branch manager testified that he became aware of Claimant's injury around the noon hour:
[The dispatcher] came in and came running into my office saying we needed to send [Claimant] to the doctor, and I didn't really understand what she said at first, came out of my office and [Claimant] had walked into the sales room and he looked kind of glassy-eyed, disoriented and there was blood in his hair and I noticed blood down the side of his neck and I went over to him and asked him what had happened and he basically said I don't know.
Employer's manager then examined Claimant's truck. The storage container was properly secured. He found no evidence of damage from a collision. He did find what appeared to be blood on the hand grip and the step-up into the cab. He also observed the same substance on the steering wheel and on the box in which Claimant stored paper work. He stated that nothing appeared to be missing from the truck or cab, and he later checked and determined that Claimant still had his license, medical card and cash.
¶ 11 Meanwhile, a co-worker took Claimant to an urgent care facility, and medical personnel there referred Claimant to the hospital for treatment. Claimant was admitted to the hospital at 1:13 p.m., and received treatment that included closure of a laceration on the back of his head with medical adhesive.
¶ 12 On the third day after Claimant's injury, Employer sent Claimant for additional medical treatment because he was complaining of dizziness and loss of movement. Claimant was diagnosed with post concussion syndrome and cervical strain, and referred to a neurologist for further treatment. The neurologist recommended further examination by an ear, nose and throat doctor to assess Claimant's issues with balance and dizziness.
¶ 13 The medical evidence presented at trial revealed no dispute regarding the prior state of Claimant's health. He was in good physical condition. He was not taking any prescription medications. He had no history of a heart condition, headaches or fainting. At age 14, he had his spleen removed due to a sports injury. He had a previous work-related injury to his little finger. Claimant had passed his most recent Department of Transportation (DOT) physical on August 26, 2008, with no restrictions. In his driving career, he had passed 10–15 of these mandatory physicals that assessed driving fitness.
¶ 14 Claimant presented a report from his medical expert Dr. Trinidad, who commented on Claimant's “unremarkable” medical history. Dr. Trinidad concluded:
I am of the opinion that [Claimant] sustained injuries in a work-related trauma that occurred while in the employ of Mobile Mini on or about April 6, 2009. His injury occurred when he was hit in the head. The exact mechanism of the injury is uncertain.... He has symptoms of post-traumatic headaches and post-traumatic vertigo in addition to left sided hearing loss and an injury to his neck.
Dr. Trinidad found that Claimant was temporary totally disabled and in need of further medical treatment. It was his opinion that the major cause of the injuries and need for further treatment was the work-related head trauma.
¶ 15 Dr. Halford examined Claimant on behalf of Employer. He noted symptoms of scalp laceration, post-traumatic amnesia, vertigo, ataxia, poor balance and loss of hearing in the left ear. Dr. Halford concluded that this was likely a work-related injury given the history, presentation and the records reviewed. It was his opinion, with a reasonable degree of medical certainty, that Claimant's symptoms and presentation were “consistent with traumatic brain injury and probably eighth cranial nerve injury as well as benign positional vertigo.” Dr. Halford could not, however, state with medical certainty “the exact manner in which the head injury occurred.”
¶ 16 The trial court entered an order awarding Claimant TTD and medical treatment, based on its finding that his injuries arose out of and in the course of his employment and that his work activities were the major cause of the injuries for which he sought benefits. The order stated with particularity the legal and factual basis for the award. The trial court overruled Employer's “ideopathic event” defense to the claim, based on these findings:
THAT prior to this injury, there is no question claimant was in good physical condition, passing a DOT physical within the last year, and not having any history of...
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