Tolbert v. Eastern Contracting Inc.

1999 OK 23, 978 P.2d 358, 70 O.B.A.J. 1007, 1999 Okla. LEXIS 20, 1999 WL 203699
CourtSupreme Court of Oklahoma
DecidedMarch 30, 1999
Docket90,859
StatusPublished
Cited by6 cases

This text of 1999 OK 23 (Tolbert v. Eastern Contracting Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tolbert v. Eastern Contracting Inc., 1999 OK 23, 978 P.2d 358, 70 O.B.A.J. 1007, 1999 Okla. LEXIS 20, 1999 WL 203699 (Okla. 1999).

Opinions

WATT, Justice.

FACTS AND PROCEDURAL BACKGROUND

¶ 1 Claimant, Helton W. Tolbert, was employed by respondent, Eastern Contracting, Inc., as a backhoe operator and foreman. Tolbert claimed that he sustained an on-the-job-injury on Saturday, April 19, 1997 while holding a blower that was blowing string through a several hundred-feet long four-inch pipe.. The string was attached to an inflatable parachute-like cone, which the force of the air from the blower propelled through the pipe. The string was then to be attached to cable, and the cable was to be pulled through the pipe.

¶2 Tolbert testified that on Saturday, April 19 he had mentioned to his supervisor, Mr. Jenkins, that his “back is given up” but that “Mr. Jenkins didn’t hear me, the way I took it, so I finished blowing that one [pipe] I was on.” Apparently no one worked the next day, Sunday, and Tolbert returned to work on Monday, April 21 and worked all day.

¶ 3 On Tuesday morning, April 22, Tol-bert was riding to work in a company pickup with two fellow employees whom he supervised, James, who was driving, and Randy. Randy lighted a marijuana cigarette from which Tolbert took one or two “hits.” James then stopped the truck and walked away. Tolbert testified that he tried, to talk to James but, “He didn’t want to talk to me.” Tolbert admitted that Eastern had experienced previous problems with Tolbert’s crew members smoking marijuana on the job and that Mr. Jenkins had warned Tolbert and the rest of his crew that if they were caught smoking marijuana on the job again they would be fired.

¶4 Tolbert testified that he went to a telephone and tried but was unable to contact the superintendent, Mr. Jenkins, and report that James had walked off; Jenkins was out of town. Tolbert then spoke with a fellow foreman, Ed Brewstein, and told him about the marijuana smoking incident and about James walking away from the company truck.

¶5 Tolbert admitted that he did not inform Mr. Jenkins of his claimed injury until late afternoon on Tuesday, April 22 and conceded that no one in a supervisory position with Eastern learned about the claimed back injury until after the marijuana smoking incident. Mr. Jenkins sent Tolbert to the doctor [360]*360immediately after Tolbert informed Jenkins that he had hurt his back. That Tuesday was the last day Tolbert worked for Eastern.

¶ 6 There is significant disagreement between the parties as' to the date of Tolbert’s claimed injury and, indeed, whether Tolbert sustained an on-the-job-injury at all. In his Form 3, Employee’s First Notice of Accidental Injury and Claim for Compensation, Tol-bert claimed that he had been injured on April 19, 1997 but Eastern, in its Form 2, Employer’s First Notice of Injury, stated that it had received notice from Tolbert of a claimed injury that had occurred on April 22, 1997. In his Form 9, Motion to Set for Trial, Tolbert claimed temporary disability from April 22nd. At trial Tolbert’s counsel expressly limited Tolbert’s claim to disability arising from the claimed April 19 injury. Tolbert makes no claim of any injury or any other event that suddenly made his symptoms worse on the afternoon of April 22, 1997.

¶ 7 There is another issue presented by the record: Was Tolbert’s disability, if any, the result of an on-the-job-injury at Eastern or was it caused by preexisting disability. Tolbert admitted that he had sustained a previous low back injury. The date of the first low back injury is uncertain. The record contains references to the previous work related low back injury and workers’ compensation claim as having happened in either 1990 (report of Dr. G, Eastern’s examining doctor based on medical records), 1991 (Tol-bert’s trial testimony), or 1993 (report of Dr. M, Tolbert’s examining physician, based, presumably, on the history Tolbert gave him). In his Form 3 Tolbert answered “yes” to the question, “Are you a previously impaired person due to a prior workers’ compensation injury or obvious and apparent pre-existing disability caused by accident, disease, birth defect or military injury.”

¶ 8 Both Tolbert and Eastern introduced medical reports. Tolbert’s examining physician, Dr. M, opined that Tolbert was one-hundred percent temporarily totally disabled as the result of an April 19, 1997 accident. Dr. G, Eastern’s examining physician said in his report, “The injury, by his [Tolbert’s] history appears to be work related” and that Tolbert had zero percent temporary total disability and five-percent permanent partial impairment to his lumbar spine. Dr. G, however, also noted that Tolbert had sustained a previous low back injury and that x-rays revealed “degenerative changes” in his thoracic and lumbar spine. Dr. G’s report expressed no opinion as to the cause of Tol-bert’s permanent partial disability.

¶ 9 Following the trial, the trial court denied benefits to Tolbert because it found that Tolbert “was not a credible witness.” The three-judge panel affirmed the trial court on the ground that the trial court’s order “was not against the clear weight of evidence nor contrary to law.” The Court of Civil Appeals, with one judge dissenting, sustained the three judge panel’s order.

DISCUSSION

¶ 10 Tolbert claims that the trial court erred in finding he “was not a credible witness” because, according to Tolbert, the record would not support that his testimony was either controverted or inherently improbable. We disagree and hold that the record supports the Workers’ Compensation Court’s finding.

¶ 11 In denying Tolbert’s claim, the trial court relied on Bittman v. Boardman Co., 1977 OK 32, 560 P.2d 967, in which we held that the Workers’ Compensation Court (then the State Industrial Commission) “may refuse to give credence to any portion of the evidence which in its opinion is not entitled to credence.” There we went on to explain:

... A court is not obliged to accept testimony as true merely because there is no direct testimony contradicting it, where it contains inherent improbabilities or contradictions which alone, or in connection with other circumstances in evidence, justify an inference that the evidence is false. [Citations omitted.] Where the witness’ own statements create an impression of an improbability of the facts to which he testified his evidence may be disregarded. [Citations omitted.]

¶ 12 According to the Court of Civil Appeals dissent and Tolbert’s argument, Dr. G’s report supports Tolbert’s allegation that he [361]*361sustained an accidental injury arising out of his employment. To the contrary, Dr. G, who was Eastern’s examining doctor, not only failed to express any opinion as to the causation of Tolbert’s disability, he also noted that Tolbert had sustained a previous back injury and that his x-rays demonstrated degenerative changes in his low back. Further, Tolbert had characterized himself as “a previously impaired person” in his Form 3. These facts would amply support a finding that the disability Dr. G found was the result of Tolbert’s preexisting disability rather than the result of an on-the-job-injury on April 19, 1997.

¶ 13 The Court of Civil Appeals dissent calls for reversal because the record does not reflect that Tolbert’s marijuana use caused him to act irresponsibly. Whether Tolbert’s marijuana use on April 22, 1997 rendered him incapable of acting responsibly is irrelevant to the issues in this case. In fact, Tolbert waived any right to compensation for an April 22 injury when he limited his claim to his alleged April 19 injury.

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Tolbert v. Eastern Contracting Inc.
1999 OK 23 (Supreme Court of Oklahoma, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
1999 OK 23, 978 P.2d 358, 70 O.B.A.J. 1007, 1999 Okla. LEXIS 20, 1999 WL 203699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tolbert-v-eastern-contracting-inc-okla-1999.