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Emery v. Wal-Mart Super Center5/28/1999
Petitioner, Dennis Emery (Claimant) seeks review of a Workers' Compensation Court order denying his claim for compensation because he had failed to meet his burden of persuasion.
Claimant filed two separate claims alleging compensable injury while working for Respondent, Wal-Mart (Employer). The first was filed in November 1997, claiming cumulative trauma injury to both feet. The second, filed May 1, 1998, alleged cumulative trauma injury to his back. The claims were consolidated in the Workers' Compensation Court for purposes of trial. The trial court issued separate orders disposing of the two claims, and Claimant appealed both to a three judge panel of the Workers' Compensation Court. In a joint order disposing of both claims, the three judge panel affirmed the trial court orders without modification. Claimant filed Petitions for Review in both cases. The Supreme Court consolidated the cases for review.
As a preliminary matter, we consider the wording of the orders. As to the claim for injury to his feet, the trial court first held Claimant did not sustain an accidental injury arising out of and in the course of employment with Employer, and then concluded in a separate paragraph:
THAT while claimant met his burden of proof, he didn't meet his burden of persuasion.
The trial court included a substantially similar paragraph in the order denying the claim for injury to Claimant's back, but made no findings of fact to support the conclusions in either order. As we noted, the three judge panel affirmed the trial court orders without modification. Although the paragraph regarding the burdens of proof and persuasion is inartfully worded and would appear to be redundant, we find it is not so inherently ambiguous as to be too indefinite and uncertain for proper appellate review. See, Gleason v. State Indus. Court, 1965 OK 210, 413 P.2d 536.
The Workers' Compensation Court concluded that Claimant both met his burden of proof and failed to meet his burden of persuasion. The term "burden of proof" has been the subject of much ambiguity, as recognized by the Oklahoma Supreme Court in Jackson v. Oklahoma Memorial Hosp., 1995 OK 112, 909 P.2d 765, 776 n.18. See also, Johnson v. Board of Governors of Registered Dentists of State of Okla., 1996 OK 41, 913 P.2d 1339, 1356 n.3, and Harder v. F.C. Clinton, Inc., 1997 OK 137, 948 P.2d 298, 303 n.13.
As discussed in the foregoing cited footnotes, burden of proof was used in the past to describe two different concepts -- the burden of persuasion and the burden of production (or the burden of going forward with the evidence). There is no Oklahoma statutory definition of either concept, but the term burden of proof has been defined through jurisprudence as the burden of persuasion, and is distinct from the concept of burden of production. Jackson, 909 P.2d at 776. Thus, it is evident from the context of the order that the Workers' Compensation Court's holding should have been that while Claimant met his burden of producing evidence, he did not met his burden of persuasion. Since the 1986 repeal of 85 O.S. 1981 ยง 27, both the burdens of producing evidence and of persuasion have been on the claimant, "who must adduce every fact necessary to establish compensability." American Management Systems v. Burns, 1995 OK 58, 903 P.2d 288.
Claimant testified he was produce manager for Employer. He worked 10-12 hour days and was on his feet 90 % of the time, walking from the warehouse to the produce department on a continuous basis and walking through the department. About half of his shift he was involved in moving produce, which required unloading crates weighing from 25 to 50 pounds
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