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Johnston v. Marten Transport8/11/1992
Rehearing Denied September 29, 1992.
Certiorari Denied December 15, 1992
ARNOLD JOHNSTON, PETITIONER,
v.
MARTEN TRANSPORT, THE HARTFORD INSURANCE GROUP AND THE WORKERS' COMPENSATION COURT, RESPONDENTS.
Robert A. Flynn, Wilson Jones, Tulsa, for petitioner.
Catherine A. Gatchell, Tulsa, for respondents.
ORDER SUSTAINED.
MEMORANDUM OPINION
The opinion of the court was delivered by: GARRETT, Judge.
Petitioner Arnold Johnston (Claimant) filed his Form 3 in the Workers' Compensation Court on December 12, 1989, alleging he sustained an accidental injury arising out of and in the course of his employment with Respondent Marten Transport (Employer). He alleged the date of the accident was February 8, 1989, and occurred in Weatherford, Oklahoma, where he slipped on ice, fell, rolled downhill and struck a building. He alleged he sustained injury in the nature of a sprain/strain to his lower back, and neck. The Form 3 was filed approximately two months after Claimant had filed for non-work related short term disability which the company paid through March 23, 1990. Employer answered, denying Claimant sustained an accidental injury which arose out of and in the course of his employment. Employer also asserted that Claimant failed to provide timely notice, pursuant to 85 O.S. 1991 ยง 24.2 , and that its rights were prejudiced thereby.
On July 22, 1991, the trial court's order was filed, denying the claim. The court found:
THAT the Court finds that the respondent's witnesses and documentary evidence effectively refuted the claimant's testimony. THAT claimant did not sustain an 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 timely filed an appeal with the Workers' Compensation Court En Banc, and on November 21, 1991, an order of the three judge panel was filed, affirming the trial court. This review proceeding followed.
Claimant contends there is no competent evidence to support the trial court's order denying his claim. He contends his medical evidence, as well as that offered by Employer, shows he suffered an injury during the course of his employment, and the trial court thus had no alternative but to find his claim compensable.
Claimant testified that he worked for Employer as a truck driver for more than three years. He stated in February, 1989, he had driver from Cottage Grove, Minnesota, to deliver some materials (computer chips) to Ravens Manufacturing in Weatherford, Oklahoma. He stated when he got out of the truck, he slipped on the ice on the first step and fell on the ground. He continued unloading his truck. He testified that when the truck was unloaded, he tried by telephone to reach his supervisor, who was unavailable. He told someone else there that he had fallen. He was asked if he needed a doctor, and he said that he did not think he needed one. He began seeing a chiropractor, Dr. K., which he continued for eight or nine months. He was later referred to medical doctors who treated him.
Debra E. Hayden (Hayden) testified on behalf of Employer. She works within Employer's Risk Management Department. She testified it was her job to review operator settlement sheets (from which employees are paid) with regard to her investigation involving Workers' Compensation claims. She stated Claimant was not anywhere near Weatherford, Oklahoma, on the date in question. She stated that o
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