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King v. Pillsbury Bakery Co.3/2/2001
Petitioner, Jerry King (Claimant), filed his Form 3 in the Workers' Compensation Court, alleging he injured both knees in a cumulative injury, arising out of and in the course of his employment with Respondent, Pillsbury Bakery Company (Employer). He alleged the date of last exposure was March 1, 2000.
The trial court entered an order on September 7, 2000, denying the claim. The order provided:
THAT claimant failed to meet his burden of proof and failed to meet his burden of persuasion. American Management Systems, Inc. v. Burns, 903 P.2d 288 (Okla. 1995).
THAT the claimant testified that he left work on the last day with the respondent because of pain in his shoulders. The claimant admitted that there was no mention of any problems with his knees at any time before he left (although he testified he had symptoms prior to this date). Further, claimant testified that he received no treatment on his knees.
THAT claimant did not sustain accidental personal injury arising out of and in the course of claimant's employment with the above named respondent, as alleged in the claim for compensation filed herein.
Claimant testified he did not tell anyone at his job that he hurt his knees while he was still employed. He testified: his job required him to stand on a concrete floor all day; his job as a "skidder" required him to stack boxes of baked goods onto pallets; he was required to lift, bend, kneel and squat constantly in the course of a normal day; and, he heard popping noises in his knees while doing his job.
Employer contended it was prejudiced by Claimant's failure to notify it of the alleged injury, as required by 85 O.S. Supp. 1997 §24.2 (A). Employer did not learn of this alleged injury to his knees until Claimant filed his Form 3 after his employment ended.
For reversal, Claimant contends:
1. The court's order is contrary to the undisputed evidence.
2. The court's finding that Claimant did not sustain his burden of proof lacks support in the record.
First, Claimant asserts there was no evidence disputing his testimony that he injured his knees while working for Employer. He contends that a preponderance of the evidence presented overcomes the presumption, which arises under §24.2 (A), that his injury was not work related. Claimant's medical expert, Dr. T., gave his opinion in deposition testimony that Claimant "had patellofemoral syndrome, worse on the left compared to the right, resulting from cumulative work-related trauma." Dr. T. recommended that Claimant be referred to an orthopedic surgeon for further diagnostic studies and therapeutic recommendations. It was also Dr. T.'s opinion that Claimant would benefit from anti-inflammatory medications and physical rehabilitation for his knees.
Dr. G., Employer's medical expert, examined Claimant, but gave no opinion about Claimant's knees. Claimant argues that he saw Dr. G. for the injury to his shoulders, the subject of a separately filed workers' compensation claim.
Claimant contends there was no evidence that he did not sustain a work related injury to his knees. He cites Bailes v. Home of Hope, 1999 OK CIV APP 27, 977 P.2d 1145, in support of his contention that his evidence supports granting an award. As in this case, the trial court in Bailes denied compensation. The court therein found the claimant's back problems arose prior to the alleged accidental injury, that she was not a credible witness and that she failed to meet her burden of persuasion. She argued she had met her burden of persuasion because of her uncontroverted testimony that she injured her back when she lif
Page 1 2 Oklahoma Personal Injury Attorneys
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