Cox v. B.F. Goodrich Co.

1989 OK CIV APP 41, 788 P.2d 967, 1989 Okla. Civ. App. LEXIS 80, 1989 WL 200909

• Court: Court of Civil Appeals of Oklahoma
• Decided: June 27, 1989
• Docket: 70419
• Status: Published

Opinions

BRIGHTMIRE, Vice Chief Judge.

The sole issue presented for review is whether the trial court’s workers’ compensation award of 10 percent permanent partial disability to the body as a whole due to injury to the claimant’s lungs is supported by competent evidence. We hold that it is.

I

The operative facts are that the claimant, Donald Cox, was found by the workers’ compensation trial court to have sustained a job-related lung injury during his 36 years of employment with the respondent, B.F. Goodrich, and as a result had 10 percent permanent partial disability to the whole body. The order was affirmed by the court en banc.

The petitioning claimant contends that the evidence required the court to fix the impairment between the amount established by his medical evidence — 35 percent — and the highest amount testified to by one of the respondent’s medical witnesses, namely, 40 to 60 percent.

II

While we are at a loss to understand how the court en banc could weigh the evidence, as it was required to do, and still conclude that the 10 percent award was not clearly against its weight, we are, of course, in this original review proceeding, restricted to the Parks¹ standard of review, viz., to determine whether any competent evidence supports the lower court’s findings of fact.

The claimant recognizes this and consequently argues that the respondent’s medical evidence is incompetent because it is contradictory, self-impeaching and inconsistent. For support he relies on a principle applied in Chester v. Oklahoma Natural Gas Co., 619 P.2d 1266 (Okl.App.1980), namely, that a fact finder may not ignore uncontradicted testimony that is unim-peached, consistent within itself, and not inherently improbable.

The Chester concept, however, is in-apposite here because we are concerned not with testimonial consistency but with its admissibility and believability. And so the question under these circumstances is whether the evidence was admissible and if so whether the fact finder was obliged to ignore all of the inconsistent partisan testimony.

This question, of course, must be answered in the negative. Testimony of a party that is contradictory, impeached, inconsistent or improbable may indeed be ignored by a fact finder, but it is not for that reason rendered incompetent. It is the weight rather than the competency of subject evidence that is at issue here. For, as pointed out in Black’s Law Dictionary 257 (5th ed. 1979), competency of evidence differs from its credibility in that, generally speaking, competent evidence is that which is “admissible (i.e. relevant and material),” while credibility has to do with the believability of admissible evidence. Thus in this case the range of admissible disability evidence presented to the trial court was from the respondent’s 10 percent to the claimant’s 35 percent permanent partial impairment of the whole body. Being admissible the respondent’s evidence was competent. It thus became the duty of the trial court to appraise the credibility of all the medical reports and the doctor’s depositions as well as the live testimony of the claimant and make findings of fact. The trial court found that claimant had sustained only a 10 percent impairment and made an award in accordance with the finding. An appeal was made to the court en banc with regard to the 10 percent finding. Its duty was to weigh the evidence and determine whether or not the 10 percent finding was clearly against the weight of the evidence. Its order recites that it found that it was not and affirms the award.

Since competent evidence underlies the assailed impairment finding, we are constrained to sustain the award.

BACON and RAPP, JJ., concur.

1 . Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okl.1984).