Kwikset/Emhart v. Mayberry

1990 OK 112, 800 P.2d 239, 61 O.B.A.J. 2889, 1990 Okla. LEXIS 122, 1990 WL 159421

• Court: Supreme Court of Oklahoma
• Decided: October 23, 1990
• Docket: 70147
• Status: Published

Opinions

OPALA, Vice Chief Justice.

The dispositive issue on certiorari is whether a Workers’ Compensation Court review panel may modify the trial judge’s fact finding that limits claimant’s on-the-job injury in contest to her left hand and arm by adding another compensable injury — that to her right shoulder — based solely on medical reports and without the aid of a transcript of the hearing held before the trial judge. We answer this question in the negative.

The trial judge found that the claimant had sustained a work-related injury to her left hand and arm but denied compensation for a claimed injury to her right shoulder. The claimant appealed to a three-judge panel of the Workers’ Compensation Court. That tribunal modified the trial judge’s finding by adding to claimant’s work-related harm an injury to her right shoulder. The Court of Appeals sustained the panel’s order modifying the trial judge’s findings and held that the panel’s decision must be left undisturbed because the record tendered by employer for review (which did not include a transcript) fails to overcome the presumption of correctness that is due the panel’s decision. We granted certiorari upon the employer’s petition.

In her brief the claimant admits that “[njeither party requested a transcript and the only record before the ... [review panel below consisted of] the doctor’s reports which had been admitted into evidence.” ¹ The record here is entirely consistent with claimant’s concession.² This controversy centers not on deficiencies in the record, but rather, on the propriety of the panel’s decision to modify the trial judge’s fact finding upon a record devoid of a transcript. We hold there was no proof before the panel to justify the addition of an accidental injury to another part of the claimant’s body.

Appeals to a three-judge panel of the Workers’ Compensation Court are not de novo proceedings.³ They must be determined on the record made before the trial judge.4 Without the benefit of a transcript the panel can neither assess the correctness of any claim-related facts nor condemn a trial judge’s finding on the grounds that it is clearly contrary to the evidence adduced.⁵ Although a physician’s evaluation may include the claimant’s history, the competency of his opinion depends largely on the assumption of critical facts consistent with those unfolded by lay evidence connecting the claimed injury with the accident for which compensation is sought.⁶ Without this underlying lay testimony, history found in a medical report may not alone afford evidentiary support for establishing a claimant’s injury as work-related.

For affirmance of the panel’s decision in question the record must disclose competent evidence that supports a work-related injury to the right shoulder.⁷ The panel’s finding, which was made solely upon consideration of medical history in a physician’s report, stands without any basis in testimony connecting the shoulder injury to the on-the-job harm in contest.⁸ This court’s past jurisprudence recognizes that due process is denied when a reviewing tribunal alters a trial judge’s findings without support in a transcript of the proceedings heard by that judge.⁹ In short, a panel’s modification of the trial judge’s factual findings must be anchored in its reappraisal of the testimonial evidence and other pertinent proof considered by that judge.

The review panel’s need for a transcript has not always been essential. Under the terms of 85 O.S.1971 § 77(Ninth),¹⁰ now repealed, a trial judge could sit on the panel and serve as a resource to the en banc tribunal for supplying the evidence he or she considered when hearing the claim.¹¹ Now, since the 1977 amendment that became effective in 1978, no judge who presided over any hearing of the claim may participate as a member of a review panel.¹² The transcript of testimony is thus the only source of proof available to the panel for a meaningful review of factual issues sought to be pressed on appeal.¹³

In sum, this case reveals the panel supplied a finding that added a right shoulder injury without any support in record proof. Insofar as it expands the trial judge’s description of the claimant’s compensable injury without the benefit either of a transcript or of any other form of lay evidence heard by the trial judge, the panel’s order is both unauthorized by statutory law and in contravention of due process. Art. 2 § 7, Okl.Const.¹⁴ The minimum standards of due process require that a trial judge’s findings which resolve disputed fact issues be left undisturbed unless the reviewing tribunal discovers — -from the transcript of the proceedings conducted before the trial judge — that these findings are “against the clear weight of the evidence.” ¹⁵

The claim is hence remanded to the three-judge review panel with directions to reconsider the claimant’s appeal and to afford her the opportunity to designate that part of the record which is necessary to support her quest for relief before the panel. On her failure timely to secure a transcript of evidence, the review panel shall confine its appellate reexamination process and corrective relief to errors apparent on the face of the proceedings as reflected by the orders and paperwork found in the case file.

THE COURT OF APPEALS’ OPINION AND THE ORDER OF THE WORKERS’ COMPENSATION COURT’S REVIEW PANEL ARE VACATED; THE CLAIM IS REMANDED TO THE REVIEW PANEL FOR RECONSIDERATION WITH DIRECTIONS.

HARGRAVE, C.J., and HODGES, LAVENDER and SIMMS, JJ., concur. KAUGER, J., concurs in part and dissents in part. DOOLIN, ALMA WILSON and SUMMERS, JJ., dissent.

1 . Admissions in an appellate brief may supplement the appellate record. Reeves v. Agee, Okl., 769 P.2d 745, 754 (1989); Womack v. City of Oklahoma City, Okl., 726 P.2d 1178, 1181 n. 8 (1986).

2 . The "Order On Appeal” made by the three-judge panel recites in pertinent part:

"[a]fter reviewing the record in this case, and being fully informed in the premises, said Judges find that parts of said order were against the clear weight of the evidence and hence the order of the Trial Judge heretofore entered ... is hereby MODIFIED AND AFFIRMED AS FOLLOWS....” (Emphasis added.)

In the days before the comprehensive 1977 amendments to the Workers' Compensation Act became effective, this court would presume, in the absence of proof to the contrary, that a review panel did have before it a transcript of the evidentiary proceedings at the time it affirmed, modified or vacated the trial judge’s order. See Shell Oil Company v. State Industrial Commission, Okl., 279 P.2d 316, 318-319 (1955); Wise-Buchanan Coal Co. v. Risco, 150 Okl. 190, 1 P.2d 411, 414 (1931).

3 . See 85 O.S.Supp.1986 § 3.6(A), infra; Rule 28(A), Workers’ Compensation Court Rules, 85 O.S.Supp.1987, Ch. 4, App., infra.

The pertinent terms of 85 O.S.Supp.1986 § 3.6(A) provide:

« * * * Appeais shall be allowed on a question of law or a question of fact, or a mixed question of law and fact, and shall be determined on the record made before the Judge. * * * " (Emphasis added.)

The pertinent terms of Rule 28(A), Workers' Compensation Court Rules, 85 O.S.Supp.1987, Ch. 4, App., are:

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"No response to a request for review is necessary. Appeals to the three judge panel shall be strictly on the record made before the trial court. No new evidence shall be allowed. * * * ” (Emphasis added.)

4 . Hammon v. Oklahoma Gas & Electric Co., 202 Okl. 332, 213 P.2d 556, 557 (1950) (the court's syllabus ¶ 1); Amerada Petroleum Corporation v. Hester, 188 Okl. 394, 109 P.2d 820 (1941) (the court's syllabus ¶ 3).

5 . See 85 O.S.Supp.1986 § 3.6(A), infra note 12; Parks v. Norman Municipal Hospital, Okl., 684 P.2d 548, 552 (1984) (the panel's reexamination of the trial judge’s fact findings must be made by application of the clear-weight-of-the-evidence standard).

6 . Western Good Roads Service Co. v. Coombes, 185 Okl. 599, 95 P.2d 633, 634-635 (1939). See also Sutton & Sutton v. Courtney, 203 Okl. 590, 224 P.2d 605, 607 (1950) (although medical evidence conflicted on whether, after two successive accidents, the disability resulted from a recurrence of the original injury or from an independent intervening cause, the physicians had based their opinions on the claimant’s account of the facts surrounding both injurious events as well as on their personal examinations).

7 . See Flint Construction Company v. Woods, Okl., 425 P.2d 995, 997-998 (1967) (the question whether an injury had occurred in the course of employment is one of fact to be determined by competent testimonial evidence); Anderson v. Allis-Chalmers Manufacturing Company, Okl., 387 P.2d 479, 480-481 (1963) (the factual issue whether an employee's death was work-related is to be determined by the trial tribunal from competent testimonial proof adduced at the hearing); Lone Star Steel Co. v. State Industrial Commission, Okl., 271 P.2d 327, 328 (1954) (claimant’s own statements provided the primary source of evidence supporting the finding of an accidental injury); Williams v. Rippee, 208 Okl. 206, 254 P.2d 993, 994-995 (1953) (the award cannot stand where the evidence is wholly insufficient to show that an on-the-job injury had occurred); Oklahoma Leader Co. v. Wells, 147 Okl. 294, 296 P. 751, 752-753 (1931) (claimant’s testimony failed to establish an accidental, job-related injury).

8 . Cf. Consumers Co-op. Ass’n v. Titus, 201 Okl. 344, 205 P.2d 1162 (1949) (the court’s syllabus ¶ 3) (the medical proof of disability from two specific member injuries provides no evidence to sustain an award for disability to the whole body).

9 . See Shell Oil Company v. State Industrial Commission, supra note 2 at 319; Williams v. Rippee, supra note 7, 254 P.2d at 994-995. The federal Supreme Court also has condemned judicial process that has no basis in proof. See Thompson v. City of Louisville, 362 U.S. 199, 204, 80 S.Ct. 624, 628, 4 L.Ed.2d 654 (1960); Douglas v. Buder, 412 U.S. 430, 432, 93 S.Ct. 2199, 2200, 37 L.Ed.2d 52 (1973).

10 . The pertinent terms of 85 O.S.1971 § 77(Ninth) provided:

" * * * Either party feeling himself aggrieved by such order, decision or award shall, within ten (10) days have the right to take an appeal from the order, decision or award of the trial Commissioner to the entire Commission. Such appeal shall be allowed as a matter of right to either party upon filing with the Secretary of the Commission notice of such appeal. Upon the filing of such appeal, the entire Commission, or a majority thereof, sitting as a body shall hear such appeal, and upon completion thereof shall issue such order, decision or award as it may deem proper, just and equitable. In case less than the entire Commission hears the appeal, only those members participating in the hearing shall participate in the making of the order, decision or award. * * * ” (Emphasis added.)

11 . See Special Indemnity Fund v. Taylor, 199 Okl. 571, 188 P.2d 866, 867 (1948) (award was not deemed invalid merely because the trial judge participated in the intra-court review process without being a member of the panel); Osborne v. State Industrial Commission, 188 Okl. 616, 112 P.2d 384, 385 (1941) (it was not error for the trial commissioner to sit as a member of the Workers’ Compensation Court’s panel which reviewed the claim he had heard).

12 . See 85 O.S.Supp.1986 § 3.6(A), whose pertinent terms are:

" * * * Such Court en banc shall consist of three (3) Judges of the Court, none of whom shall have presided over any of the previous hearings on the claim. The Court en banc may reverse or modify the decision only if it determines that such decision was against the clear weight of the evidence or contrary to law. * * *” (Emphasis added.)

13 . See Oklahoma Co., Inc. v. State Industrial Commission, 148 Okl. 215, 298 P. 296 (1931) (the court’s syllabus ¶ 3) (an award must be supported by evidence in the record as shown by the transcript).

14 . The terms of Art. 2, § 7, Okl.Const., are:

“No person shall be deprived of life, liberty, or property, without due process of law."

See also in this connection Shell Oil Company v. State Industrial Commission, supra note 2 at 318-319.

15 . See 85 O.S.Supp.1986 § 3.6(A), supra note 12.