Moore v. Mustang Public Schools

2006 OK CIV APP 67, 136 P.3d 737, 2006 Okla. Civ. App. LEXIS 30, 2006 WL 1643563

• Court: Court of Civil Appeals of Oklahoma
• Decided: May 5, 2006
• Docket: No. 102478
• Status: Published

Opinion

Opinion by

ROBERT DICK BELL, Presiding Judge.

¶ 1 David L. Moore (Claimant) seeks review of an order of a three-judge panel of the Workers’ Compensation Court (Panel) affirming the order of the trial judge. The Panel found the Claimant did not suffer an injury that arose out of and in the course of his employment. For the reasons set forth hereinafter, the Panel’s order is sustained.

¶2 Claimant sought workers’ compensation benefits for an on-the-job injury to his left shoulder. Claimant allegedly suffered this injury while working as an electrician for Mustang Public Schools (Employer). The evidence adduced at trial revealed Claimant began experiencing problems with his left shoulder in March, 2003. Claimant continued to work and waited for over a year to seek any substantial medical treatment. Employer denied the claim contending Claimant failed to prove the injury was work-related.

¶ 3 The trial court issued an order denying Claimant’s claim on the basis that Claimant failed to prove he sustained an on-the-job injury to his left shoulder. A unanimous Panel affirmed the trial judge. Claimant now seeks review of the Panel’s order. When a Panel’s factual determination is submitted for our consideration, it must be reviewed by the traditional any-eompetence-evidenee test of correctness. Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548. Under this standard, our responsibility simply is to canvass the facts, not with an object of weighing conflicting proof in order to determine where the preponderance lies, but only for the purpose of ascertaining whether the Panel’s decision is supported by any competent evidence.

¶ 4 On review, Claimant alleges the trial judge erred as a matter of law in finding Claimant did not sustain an accidental injury arising out of and in the course of his employment. He further asserts the court’s factual finding is not supported by any competent evidence. Employer counters Claimant’s evidence, which was subjective in nature and full of inconsistencies, failed to persuade the court that there was a causal connection between Claimant’s work and the alleged injury. Employer further contended its medical evidence and a video of the Claimant introduced at trial supported a finding that the injury was not work-related. We agree with Employer’s contentions. Although Claimant presented his own lay testimony and medical evidence that his injury resulted from cumulative trauma to his left shoulder as a result of his employment, the trial judge, who observes the demeanor of the witnesses in a workers’ compensation case, is the sole arbiter of the credibility of the witnesses and the weight to be given to their testimony. Peabody Gallon Corp. v. Workman, 1982 OK 42, ¶ 13, 643 P.2d 312, 315. Thus, the fact finder may choose to believe some evidence and reject other evidence which in its opinion lacks veracity.

¶ 5 Here, the record supports a finding that the origin of the original injury was, at best, indeterminable. Thus, even though there was some evidence to the contrary of the Panel’s factual finding, the existence of that evidence is immaterial because we are searching only for competent evidence to support the Panel’s factual finding. Owings v. Pool Well Sew., 1992 OK 159, ¶ 7, 843 P.2d 380, 383. We will not reweigh the evidence. Parks at ¶ 12, 684 P.2d at 552.

¶ 6 We conclude the record contains competent evidence to support the Panel’s finding that Claimant did not have an injury arising out of and in the course of his employment. On the basis of the foregoing, the Panel’s order is sustained.

¶ 7 SUSTAINED.

HANSEN, J., concurs in result, and JOPLIN, J., concurs.