Southern Material Handling Co. v. Falling

2006 OK CIV APP 81, 138 P.3d 838, 2006 WL 1914211
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 8, 2006
DocketNo. 102,091
StatusPublished
Cited by1 cases

This text of 2006 OK CIV APP 81 (Southern Material Handling Co. v. Falling) 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
Southern Material Handling Co. v. Falling, 2006 OK CIV APP 81, 138 P.3d 838, 2006 WL 1914211 (Okla. Ct. App. 2006).

Opinion

LARRY JOPLIN, Judge.

¶ 1 Petitioners Southern Material Handling Co. and Fire & Casualty Insurance Company of Connecticut (collectively, Employer) seek review of the trial court’s order granting benefits to Respondent Steve Falling (Claimant) for a cumulative trauma injury to the shoulder, and denying Employer a credit for overpayment of some temporary total disability (TTD) benefits. In this proceeding, Employer complains the trial court erred in awarding benefits for the shoulder injury and denying credit because the uncon-troverted evidence showed: (1) Claimant’s last hazardous exposure to the risk of cumulative trauma injury for more than ninety days in a subsequent employment, thereby shifting liability for the shoulder injury to the subsequent employer under 85 O.S. 11(B)(5); and (2) Claimant’s wage-earning employment by the subsequent employer during the periods for which TTD credit was denied.

¶ 2 Claimant worked for Employer, maintaining a fleet of forklifts. Claimant commenced the instant action, alleging job-related, cumulative trauma injuries to his left shoulder, left arm and both hands1 while working for Employer, date of last hazardous exposure in February 2003. Claimant last worked for Employer in May 2003.

¶ 3 Claimant submitted to surgeries of both hands, the left in May 2003 and the right in July 2003. Claimant underwent surgery to his left shoulder in January 2004, and was released from treatment of the shoulder injury in September 2004. Employer paid benefits for the medical treatment of all injuries, and TTD from May 29, 2003 through August 14, 2004.

¶ 4 Claimant sought an adjudication of permanent partial disability (PPD) and need for vocational rehabilitation. Employer denied liability for the injury to shoulder, asserting aggravation of the condition during a period of more than ninety days in a subsequent employment, and the subsequent employer’s sole liability under 85 O.S. 11(B)(5). Employer also sought a credit for overpayment of TTD for periods during which Claimant worked for the subsequent employer.

¶ 5 At trial, Claimant testified that he sustained cumulative trauma injuries to his hands, left arm and left shoulder while working for Employer, and that due to the injuries, treatment of the injuries and recovery, he could not and did not work for weeks or months at a time. Claimant admitted that he worked in a subsequént employment from July 2003 to November 2003, and after April 2004. However, Claimant asserted the subsequent employment was merely temporary and part-time, involved only light duties, and did not require any activity which aggravated his shoulder injury. Claimant explained that photographs purportedly showing him engaged in apparently strenuous activities while in the subsequent employment were staged publicity photos. The trial court admitted time records from Claimant’s subsequent employment.

¶ 6 Claimant adduced competent medical evidence showing initial treatment of his shoulder injury, attributed to his work for Employer, prior to any subsequent employment. Claimant also offered competent med-[840]*840ieal evidence demonstrating job-related injuries to both hands and left shoulder while working for Employer, consequent medical treatment, and evaluating extent of PPD. Employer offered competent medical evidence evaluating extent of PPD, but attributing one-half of the shoulder impairment to “the employment” and one-half to non-job-related degenerative changes.

¶ 7 On consideration of the evidence, the trial court awarded Claimant PPD benefits for the injuries to both hands and left shoulder. The trial court granted Employer credit for overpayment of TTD for the periods, July 28, 2003 to September 23, 2003, October 3, 2003 to November 20, 2003, and from April 1, 2004 to August 14, 2004, but denied Employer credit for the periods, November 20, 2003 to March 31, 2004, and September 24, 2004 to October 2, 2004. The trial court also rejected Employer’s “Section 11(b) defense [a]s without merit.”

¶8 In three propositions, Employer challenges that part of the trial court’s order denying credit for overpayment of TTD, particularly in light of Claimant’s admission to his subsequent employment. In its first proposition, Employer complains there is no competent evidence to support denial of credit for the period September 25, 2004 to October 2, 2004. In its second and third propositions, Employer complains Claimant failed to introduce any competent evidence of his incapacity or inability to earn wages for the period September 24, 2003 to October 3, 2003, and November 20, 2003 to March 31, 2004.

¶ 9 “An employer claiming credit for overpayment of temporary disability compensation has the burden of proof to establish the overpayment and its amount.” Zacharias v. Lancaster & Co., Inc., 2004 OK CIV APP 90, ¶ 9, 99 P.3d 267, 270. (Citations omitted.) To the extent the determination of credit for overpayment turns on the resolution of questions of fact, we review under the “any competent evidence” standard. See, e.g., Gray v. Natkin Contracting, 2001 OK 73, ¶¶ 18-19, 44 P.3d 547, 552-553; Zacharias, 2004 OK CIV APP 90, ¶ 10, 99 P.3d at 270.

¶ 10 As to the claim to credit for the period September 25, 2004 to October 2, 2004, Employer admits in its brief “[t]his errant finding was not an issue raised at trial,” and offers neither argument nor authority in support of this proposition. We consequently treat this allegation as waived or abandoned. See, e.g., Peters v. Golden Oil Company, 1979 OK 123, ¶ 3, 600 P.2d 330, 331.

¶ 11 As to the denial of the claim to credit for the period September 24, 2003 to October 3, 2003, Employer asserts the trial court failed to rule on that part of the overpayment claim, so that part of the claim should be remanded for resolution. On this issue, we have reviewed the record. In support of the claim for overpayment, Employer offered Claimant’s time records from his subsequent employment, but there is no time record showing that Claimant worked any of those eight days between September 24 and October 3. The burden was on Employer to demonstrate an overpayment for that week. Absent evidence that Claimant worked during that period, we cannot say the lower court erred in denying a credit for that period.

¶ 12 As to the denial of credit for overpayment for the period November 20, 2003 to March 31, 2004, Claimant testified and offered competent medical evidence demonstrating the active treatment and recovery from surgical treatment of the shoulder injury during this period. We find this evidence competent to support the denial of credit for this period.

¶ 13 In its last proposition, Employer argues that, because there is some evidence showing Claimant’s performance of manual labor erecting a green house in the course of his subsequent employment, and because Claimant worked in the subsequent employment for more than ninety days, the subsequent employer bears liability for payment of benefits attributable to Claimant’s shoulder injury under 85 O.S. 11(B)(5). Claimant responds, asserting that the uncontroverted evidence showed that Claimant sustained a cumulative trauma injury to his shoulder while working for Employer, and because there is [841]*841absolutely no evidence that Claimant was injuriously exposed to the risk of cumulative trauma injury to his shoulder in the subsequent employment, § 11(B)(5) does not apply and Employer bears responsibility for all Claimant’s benefits.

¶ 14 Section 11(B)(5), 85 O.S. Supp.2003, provides:

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Cite This Page — Counsel Stack

Bluebook (online)
2006 OK CIV APP 81, 138 P.3d 838, 2006 WL 1914211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-material-handling-co-v-falling-oklacivapp-2006.