LMR Oil, LLC v. Frazier

2015 OK CIV APP 84, 359 P.3d 1169, 2015 Okla. Civ. App. LEXIS 83, 2015 WL 6778008
CourtCourt of Civil Appeals of Oklahoma
DecidedMay 4, 2015
DocketNo. 111,930
StatusPublished

This text of 2015 OK CIV APP 84 (LMR Oil, LLC v. Frazier) 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
LMR Oil, LLC v. Frazier, 2015 OK CIV APP 84, 359 P.3d 1169, 2015 Okla. Civ. App. LEXIS 83, 2015 WL 6778008 (Okla. Ct. App. 2015).

Opinion

JANE P. WISEMAN, Presiding Judge.

{1 LMR Oil, LLC (Employer) and Old Glory Insurance Co. appeal from an order of the Workers' Compensation Court determining compensability and awarding temporary total disability (TTD) benefits to Claimant, Jennifer Frazier. The issues on appeal are (1) whether the trial court's order is contrary to the weight of the evidence, (2) whether the trial court improperly shifted the burden of proof to Employer, and (8) whether the trial court violated Employer's due process rights by refusing to play a surveillance video in open court, by advocating on behalf of Claimant, and by prejudging the claim before reviewing the evidence.1 We conclude that the [1171]*1171trial court's decisions regarding compensability and TTD are not contrary to the weight of the evidence and the court did not improperly shift the burden of proof to Employer. We further conclude that Employer failed to show that its rights were violated by the trial court's decision not to view the surveillance video in open court, or that the trial court unfairly advocated on behalf of Claimant or otherwise prejudged the evidence. We do, however, agree with Employer that the finding that Claimant was not terminated for cause cannot stand because that issue was not before the court. Accordingly, we sustain the trial court's decision determining compensability and awarding Claimant TTD benefits and medical care, but we vacate the portion of its order finding that Claimant was not terminated for cause.

FACTS AND PROCEDURAL BACKGROUND

12 Claimant filed a Form 3 on December 19, 2012, alleging injury to her back after she "slipped on spaghetti" at work on November 28, 2012, Employer denied Claimant sustained an injury to her back, denied that she was temporarily totally disabled, and denied medical treatment. Employer later denied that Claimant's injury was work-related, denied that her employment was the major cause of her injury, and alleged that she had a pre-existing condition.

18 At the trial held on April 22, 2018, Claimant testified that she worked as a clerk for Employer and worked in the store's deli. She "stocked the cooler, cleaned it" and "made food in the deli; whatever they needed." - Claimant testified that on the day she was injured, she "had gone back to the deli to help the pre-tunch group." She "had gotten the spaghetti out; and [she] had made coneys and stuff," She testified about the November 28, 2012, incident as follows:

So, after that part was done, then I was cleaning up so it wouldn't be a mess for the next rush, and I put the lid tightly on the spaghetti. Then I finished cleaning up all the chili, cheese, and onions; and then when I grabbed the spaghetti and turned to go to the refrigerator, the lid popped off the spaghetti, and the water spilled all over my arm, the floor, and went under the cabinets; and then I slipped on the water and spaghetti,
I grabbed the counter in front of me, it was one of the roll arounds with the handle on the end; I grabbed it to keep from falling.

Claimant testified that she did not fall. She did not report that she fell on Employer's incident report, on the Form 3, in her deposition, or to Dr. Gillock. Claimant maintained that she reported only that she slipped.

T4 Larry Rogers, Jr., took her to Clare-more Physicians Immediate Care for treatment shortly after she slipped. Claimant stated that she did not report to any doctors that she slipped and fell but repeatedly stated that she slipped.

15 Claimant did not return to work after seeing the doctor. After returning to work on November 80, 2012, Rogers questioned her about whether she told the doctor that she fell. She stated she never told the doe-tor that she fell. Rogers told her he would not let her work that day. Later that day, Larry Rogers, Sr., called her and stated, "'We're just not going to extend your employment anymore, and so we're going to let you go.'" She testified that she filed for unemployment benefits and Employer did not contest her claim.

T6 Claimant stated that as a result of the incident when she slipped at work, she has pain in her lower back that radiates down to her toes and numbness in her buttocks. During eross-examination, Claimant testified that her problems started after she slipped. Employer questioned Claimant about her deposition testimony concerning prior back injuries. Claimant explained that in her deposition, she did not recall ever having "seen anybody" about hurting her back before the incident at work. Concerning her history of back injury, the Court stated:

[1172]*1172She testified, I believe, as I understand it, the Claimant stipulates she did not tell you about [any prior back injury while at] Coweta Manor in her deposition.
You've established that you gave her an opportunity in the deposition. She said she didn't remember at the time,. Your suggestion is that it is because she, I assume, left it out intentionally. I get the point. |

Employer's attorney then stated, "Yes, Your Honor. I'm going to the witness's eredibility; that is correct."

T7 The Court responded:

I understand that.
What I'm saying is, I'm not novice to this area of law. I'm nota novice judge. I get the point.
If we spend 10 minutes on reading more of a deposition transeript to get to the nut, which is simply she didn't tell you; she says she forgot. You say she remembered when her attorney told her, and that there's something that bears on her credibility; I get that. Let's gethn to something. ° ' '

T8 Claimant admitted that when she saw a doctor in 2010, she said that she had pain in the same area of her back, but it is now more severe and in more areas. She admitted being diagnosed with lumbar strain during her previous employment with Coweta Man- or. Employer's attorney pointed out that in her deposition, Claimant testified she had never been treated or seen for injuries to her back and said she had no prior back complaints.

T9 Employer's attorney stated to the court that Employer was denying that the incident at work as reported by Claimant ever occurred. C

" 10 Robert G. Robinson, Jr., the owner of RGR Security Solutions, testified regarding surveillance video taken at Employer's store on November 28, 2012, Rogers, Jr., asked Robinson for footage from the kitchen/deli camera from 11:49 a.m. to 12:83 p.m. on the day of the incident. Robinson testified that because of the software they use for the surveillance system, there is no way to edit or manipulate the data. As he explained, because "the cameras are set up for motion only," "there will be bits and pieces where there's no time frame because there was no motion in that. camera's view during that time." The camera begins recording when it detects motion. During Robinson's direct testimony, the trial court stated that it would not view the video in open court but would view it in chambers.2 The trial court reiterated this later in Robinson's testimony.3

11 Rogers, Jr., testified that he watched the video and never saw Claimant twist and grab a table and never saw anything that indicated she had immediate back pain after the spaghetti spilled. He observed the spaghetti spilling and Claimant walking through the spaghetti, but he never saw her slip, fall, or grab a table.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 OK CIV APP 84, 359 P.3d 1169, 2015 Okla. Civ. App. LEXIS 83, 2015 WL 6778008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lmr-oil-llc-v-frazier-oklacivapp-2015.