 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Johnston v. Marten Transport8/11/1992
n February 7, 1989, he picked up a load in Freehold, New Jersey, for Nestles, which was more than likely food products, and delivered to Skokie, Illinois. On February 9, 1989, he picked up a new truck in Mondovi, Wisconsin, and picked up a load of Nestles products. She stated that the records do not indicate he carried a load of computer chips, although it was possible that on his January 28 trip to Virginia from 3M Company that there were computer chips on that. She also testified that Employer follows Department of Transportation (DOT) regulations, which prohibit driving at one time longer than 10 hours, or an average of 500 miles per day. If they drive 10 hours, they must take an 8-hour break. She stated it would not have been within company policy to travel over 800 miles in 17 hours overnight, which is the distance from Cottage Grove, Minnesota, to Weatherford, Oklahoma. She stated it was her testimony that nowhere in the settlement sheets or company records was there an indication that Claimant did in fact go to Weatherford, Oklahoma. She also stated there was no verbal or written report made by Claimant of an employment-related injury until he filed his workers' compensation claim in December, 1989.
Claimant appears to contend, inter alia, that Employer was required to present "competent medical evidence" to prove that Claimant did not suffer an accidental injury which arose out of and in the course of his employment, and failure to do so causes the court's order to be invalid for lack of supportive competent evidence. However, there is no such rule. The statute requires competent medical evidence to prove a claim, but not to disprove the existence of a compensable accidental injury. 85 O.S. 1981 ยง 17 ; Collins v. Halliburton Services, 804 P.2d 440 (Okl. 1990). A doctor's opinion must be based on a history provided to him by the claimant, and he must assume that the history provided to him is correct. One method of disproving a claim is to present evidence that the history is not correct.
Whether an injury arises out of and in the course of a claimant's employment, or from prior injury or disease, presents an issue of fact for the trial court, whose findings on review will not be disturbed if based upon any competent evidence. Thomas v. Keith Hensel Optical Labs, 653 P.2d 201 (Okl. 1982); Refrigerated Transport Inc. v. Creek, 590 P.2d 197 (Okl. 1979). Although the medical evidence states there was an injury and that it was employment-related, the history recited in the physicians' reports was given by Claimant. The trial court must determine the facts from all of the evidence presented, including the non-medical testimony. Findings of fact made by the trial court are binding and conclusive in review proceedings before this Court, unless they lack support in competent evidence. Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okl. 1984). It is only when competent evidence is lacking that the trial court's decision may be determined to be erroneous as a matter of law. Parks, supra.
The credibility of witnesses is for the trial court to determine. The trial court has the duty, as the fact finder, to determine whether a witness is to be believed. Here, while the evidence was disputed, the record contains competent evidence to support the order.
ORDER SUSTAINED.
ADAMS, P.J., and JONES, J., concur.
|