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Pemberton Chevrolet9/2/2005
Mandate Issued: 09/29/2005
SUSTAINED
Petitioners Pemberton Chevrolet and Oklahoma Automobile Dealers Self-Insurance Association (Employer) seek review of an order of a three-judge panel which affirmed the Workers' Compensation Court's order finding Respondent Michael Harger had sustained an injury arising out of and in the course of employment, and awarding temporary total disability benefits. Competent evidence supports the finding that Harger's fall was due to an idiopathic condition which was exacerbated by an obstacle in the workplace, making the injury compensable. We therefore sustain the panel's order.
In his Form 3, Harger claimed work-related injuries to the head, face, nose, left eye, brain, neck, teeth, and right foot which occurred when he stubbed his toe and fell into a car lift June 24, 2004. In its Form 2, Employer's First Notice of Injury , Employer asserted that Harger was injured when he fell during a seizure. In its first Form 10, Employer denied Harger had sustained an injury arising out of and in the course of employment. In a subsequent Form 10, Employer added as an affirmative defense "idiopathic injury due to alcohol withdrawal, seizure, and/or other factors unrelated to work, including intoxication."
Trial was held October 7, 2004. The trial court issued its Order Awarding Temporary Total Disability Benefits October 12, 2004. The trial court found that Harger sustained an injury to the head (brain) face, nose, left eye, teeth, and neck arising out of and in the course of employment. The Order denied the claimed injury to the right foot. Paragraph 2 of the Order provides:
THAT while working in the respondent's repairshop (sic) claimant suffered a seizure or fainting spell which caused him to fall and strike various areas of his head on a car lift. His injuries are the result of an idiopathic fall induced by claimant's pre-existing physical condition. However, the court is strongly convinced that his injuries would not have occurred but for striking his head on the car lift which is a risk factor peculiar to his employment as an automotive technician. Flanner v. Tulsa Public Schools, 2002 OK 8, 41 P.3d 972; Halliburton Services v. Alexander, 1976 OK 16, 547 P.2d 958.
The Order further found Harger was entitled to TTD payments from June 27, 2004 and continuing, along with reasonable and necessary medical treatment.
Employer appealed the trial court's Order to a three-judge panel. The panel affirmed the Order by a two to one vote. The dissenting panel member stated that the matter should be remanded to the trial court "to make a finding on the 'intoxication' defense." Employer now seeks review of the panel's Order. We will sustain an order of a three-judge panel if the order is supported by competent evidence. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548.
Employer argues that no competent evidence supports a finding that Harger's seizure was not caused by alcohol use or abuse and that the trial court therefore erred in failing to address the intoxication defense raised by Employer. Employer also contends that once it showed the seizure was caused by use or abuse of alcohol, Harger failed to rebut the defense by showing by a preponderance of the evidence that his fall was not directly caused by the use or abuse of alcohol.
A claimant's intoxication is an affirmative defense to a claim for workers' compensation benefits. Title 85 O.S.2001 ยง11(A)(3) establishes the defense:
A. Every employer subject to the provisions of the Workers' Compensation Act shall pay, or provide as required by the Workers' Compensation Act, compensation accord
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