Dempsey v. Ballard Nursing Center

2004 OK CIV APP 18, 84 P.3d 1071, 75 O.B.A.J. 654, 2003 Okla. Civ. App. LEXIS 122, 2003 WL 23283087
CourtCourt of Civil Appeals of Oklahoma
DecidedSeptember 16, 2003
DocketNo. 99,057
StatusPublished

This text of 2004 OK CIV APP 18 (Dempsey v. Ballard Nursing Center) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dempsey v. Ballard Nursing Center, 2004 OK CIV APP 18, 84 P.3d 1071, 75 O.B.A.J. 654, 2003 Okla. Civ. App. LEXIS 122, 2003 WL 23283087 (Okla. Ct. App. 2003).

Opinion

[1072]*1072Opinion by

JOHN F. REIF, Judge.

¶ 1 This case concerns the denial of the workers’ compensation claim of Ladonna Dempsey. A trial judge of the workers’ compensation court ruled “claimant did not sustain an accidental personal injury [to her back] arising out of and in the course of-[her] employment with [Ballard Nursing Center], as alleged in the claim for compensation.” This was the only reason given by the trial court for the denial of the claim. Upon Ms. Dempsey’s appeal to a three-judge panel of the workers’ compensation court, a majority of the judges affirmed the denial, finding it was “not against the clear weight of the evidence nor contrary to law.”

¶ 2 Here on review, Ms. Dempsey contends that the orders of the workers’ compensation court should be vacated, because they are unsupported by competent evidence. In particular, she argues that (1) uncontroverted evidence established an injury to her back from lifting patients in the course of her employment with Ballard Nursing Center on July 12, 2002, and (2) the medical evidence she presented showed an aggravation of preexisting spondylolisthesis in her back, while the medical evidence of employer and insurance carrier did not address aggravation of the pre-existing spondylolisthesis.

¶3 In response, Employer and Insurance Carrier have noted that (1) the nurse aid with whom claimant worked on the day of her injury contradicted many of the details in claimant’s account of being injured, and (2) the medical expert they presented found that claimant’s need for surgery was due to her pre-existing spondylolisthesis and not the injury.

¶ 4 In reviewing the record, we note that there are differences in the testimony of claimant and the nurse aid with whom she worked about (1) how many employees were involved when they lifted a patient who weighed in excess of three hundred pounds, (2) whether claimant had difficulty straightening up after lifting this patient, and (3) discussions between the two about claimant’s back hurting. However, none of these differences are material to the question of whether lifting this particular patient and other patients the remainder of the day produced strain on claimant’s back. On this material point, there was no disagreement.

¶ 5 Claimant testified that lifting patients did hurt her back, while the nurse aid with whom she worked observed: “If you’re not used to lifting hundred to 200 pound people your back’s going to hurt. My back hurt for two weeks after I started working. It’s something that just, if you’re not used to lifting you’re going to pull muscles and your back is just going to be sore.” The nurse aid added that “you eventually condition to it and you get used to it,” but did not indicate whether she knew how such stress and strain would affect a person with spondylolisthesis. Significantly, even the medical expert offered by Employer and Insurance Carrier referred to the “injury [claimant] sustained on July 12, 2002, while working for Ballard Nursing-Home.”

¶ 6 Based on the foregoing, we agree with claimant that it was uncontroverted that she lifted patients in the course of her work, such lifting involves strain that can hurt a person’s back, and claimant experienced a hurt back injury that required medical attention after lifting patients at work. It appears that the trial court and three-judge panel treated these facts as uncontroverted in view of the fact that neither made a finding that claimant lacked credibility, that her testimony had been impeached, or that she failed to carry her burden of proof and persuasion.

[2,3] ¶ 7 When there is no conflict in the evidence, the question of whether an employee has sustained an accidental injury arising out of employment is a question of law. Lanman v. Oklahoma County Sheriffs Office, 1998 OK 37, ¶ 6, 958 P.2d 795, 798. In this regard, it has long been recognized “[w]here accidental injury results from a risk factor peculiar to the task performed it arises out of the employment.” Halliburton Services v. Alexander, 1976 OK 16, ¶ 11, 547 P.2d 958, 961. Also, “[sjtrain or over-exertion relates entirely to the person injured, as to whom the principal ingredient is found in unusual effect, rather than from unusual cause.” Meadow Gold v. Oliver, 1975 OK 67, ¶ 19, 535 P.2d 290, 294. The workers’ compensation court determination that claimant [1073]*1073did not sustain an “injury” is unsupported by competent evidence and is contrary to the uncontroverted evidence in the record.

¶ 8 In holding that claimant did sustain an injury, we are cognizant of the rule in Brookshire v. Knippers Plumbing Co., 1964 OK 67, ¶ 6, 390 P.2d 887, 889:

The fact that claimant may have suffered an accident does not, in itself, authorize an award to claimant. An award may be [made] for some form of disability due to an injury resulting from the accident.

See also City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399, 402 (1976) (the mere happening of an accident does not give rise to right to benefits, because benefits flow only to a worker who has suffered a disabling injury as the result of the accident).

¶ 9 On this latter issue, Employer and Insurance Carrier contend that the opinion of them medical expert provides competent evidence to deny claimant’s claim for benefits. This doctor’s report states: “In my opinion, [claimant] is in need of surgery to her back, but it is due to spondylolisthesis which is a pre-existing condition and not as a result of the injury she sustained on July 12, 2002, while working for Ballard Nursing Home.”

¶ 10 The problem with this opinion is that it essentially says claimant needs surgery for the effects of the spondylolisthesis, and the injury of July 12, 2002, did not cause the spondylolisthesis. The question which .the doctor did not address is whether the injury of July 12, 2002, aggravated the spondylolis-thesis so that it requires surgery now, as opposed to surgery being the general medical treatment that would have eventually been needed to correct this condition.

¶ 11 It is well settled that “[c]om-pensation benefits are not limited to perfectly healthy work[ers].” Halliburton, 1976 OK 16, If 10, 547 P.2d at 960 (citation omitted). “This is true although evidence may indicate a claimant may be disabled by [pre-existing] disease in the future even though accidental injury had not occurred.” Id. “[There is no] need the disability be attributable in any appreciable part to the injury, standing alone.” Marlar v. Marlar, 1960 OK 110, ¶ 11, 353 P.2d 17, 19. “It is the aggravation of the disease by the injury which renders the entire disability resulting therefrom com-pensable.” Id. (citations omitted). This is true at least insofar as treatment is concerned. Where a job-related injury aggravates the pre-existing disease/condition of spondylolisthesis, an award of-workers’ compensation benefits is proper. National Zinc Company v. Cichon, 1961 OK 185, 364 P.2d 699.

¶ 12 In Stiles v. Oklahoma Tax Commission, 1987 OK 85, ¶ 13, 752 P.2d 800, 803, the Oklahoma Supreme Court reversed an order by a three-judge panel denying a claim, because there was “a lack of competent evidence .to support the review panel’s factual conclusion that [the claimant] did not suffer an accidental and personal injury arising out of and in the course of ... employment.” The Stiles

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Related

National Zinc Company v. Cichon
1961 OK 185 (Supreme Court of Oklahoma, 1961)
Marlar v. Marlar
1960 OK 110 (Supreme Court of Oklahoma, 1960)
Halliburton Services v. Alexander
1976 OK 16 (Supreme Court of Oklahoma, 1976)
City of Littleton v. Schum
553 P.2d 399 (Colorado Court of Appeals, 1976)
Stiles v. Oklahoma Tax Commission
1987 OK 85 (Supreme Court of Oklahoma, 1987)
Meadow Gold Dairies v. Oliver
1975 OK 67 (Supreme Court of Oklahoma, 1975)
Lanman v. Oklahoma County Sheriff's Office
1998 OK 37 (Supreme Court of Oklahoma, 1998)
Brookshire v. Knippers Plumbing Company
1964 OK 67 (Supreme Court of Oklahoma, 1964)

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Bluebook (online)
2004 OK CIV APP 18, 84 P.3d 1071, 75 O.B.A.J. 654, 2003 Okla. Civ. App. LEXIS 122, 2003 WL 23283087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempsey-v-ballard-nursing-center-oklacivapp-2003.