Appellant: Advance Food Company
Appellee: Priscilla Rewis

( Buettner )

( Gene Prigmore )

(np)

PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT

SUSTAINED

W. Jeffrey Dasovich, Oklahoma City, Oklahoma, For Petitioner

Matthew C. Frisby, Oklahoma City, Oklahoma, For Respondent Priscilla Rewis

Opinion

¶1 Petitioner Advance Food Company (Employer) seeks review of the Workers' Compensation Court's finding that Respondent Priscilla Rewis sustained an injury arising out of and in the course of employment. The finding of a compensable injury is not against the clear weight of the evidence and we sustain the order.

¶2 Rewis filed her Form 3 August 12, 2010, in which she alleged she sustained a work-related injury to the back when she fell during a delivery July 1, 2010. Employer denied Rewis sustained an injury arising out of and in the course of employment.

¶3 The issue of compensability was tried September 13, 2011. The trial court issued its Order September 14, 2011, in which it found the testimony of all witnesses was credible and that Rewis sustained a single incident injury July 1, 2010, along with a re-injury July 20, 2010, to the "back (lumbar spine) (aggravation of a preexisting condition)." The court further found that the July 1 and July 20 injuries were "the predominate cause of Rewis's back "injury and the compensable benefits awarded herein." The court found that the July 1 and July 20 injuries arose out of and in the course of employment. Lastly, the court directed Employer to select a treating physician.

¶4 We will sustain the order unless we find: 1) the court acted without, or in excess of, its powers; 2) the order or award was contrary to law; 3) the order or award was procured by fraud; or 4) the order or award was against the clear weight of the evidence. 85 O.S. 340(D) (2011).

¶5 Employer contends the finding that Rewis sustained an injury in the course and scope of employment is against the clear weight of the evidence. Employer concedes that Rewis fell on the job June 9, 2010 and filed an incident report, but it complains that in her Form 3 and at trial, Rewis alleged a different date of injury. Employer also contends Rewis failed to inform various doctors that her injuries were work-related.

¶6 At the hearing, Rewis testified that her first injury occurred around July 1, 2010 when she was delivering food in pouring rain and she slipped and fell.1 Rewis testified she filled out an incident report; Employer's Exhibit 5 is an incident report Rewis filled out June 9, 2010. Employer contends Rewis was not credible because of the discrepancy in dates. However, the description of the injury in the report is the same as the description Rewis gave in testifying at the hearing.' And, later in her testimony, Rewis's counsel asked, "(t)o the best of your recollection, it was right around the first of July or end of June?" to which Rewis responded "(s)omething like that." The record shows Rewis was uncertain of the exact date of her fall, but as noted above, Employer has conceded that Rewis fell at work within three weeks of the date she alleged in her claim for compensation. In Mobile Mini, Inc. v. Dugger, 2011 OK CIV APP 31, 3 1-32, 249 P.3d 517, another division of the Oklahoma Court of Civil Appeals held that a claimant's inability to recall the exact moment of injury is not fatal to the claimant meeting his burden of proving an injury arising out of and in the course of employment. There the court noted the claimant's lack of recall "does not diminish the logical and supportable inferences from undisputed physical evidence that he was performing work-related duties or activities incidental thereto at the critical time, and that a work-related risk was the major cause of the claimed injury. Id.

¶7 Employer also contends certain evidence, that Rewis did not inform various doctors that her back problems were due to a work injury, proves that she did not sustain a compensable injury. Rewis testified that she told Dr. Reinschmiedt that her injury was not work-related because the doctor had indicated he would not treat her for a work injury. Rewis also testified that someone at work told her she should not report the injury as being work-related. She testified that neither her supervisor nor the risk manager discouraged her from filing a claim. Rewis testified she was afraid of being fired for seeking treatment for a work injury.

¶8 Employer asserts the first doctor to whom Rewis reported a work injury was Dr. McClure, over a year after the claimed injury. Rewis counters that the August 11, 2010, report from Dr. Martin, included in Employer's Exhibit 3, shows she informed Dr. Martin then that she fell at work.

¶9 Dr. McClure's report shows that Rewis reported the same injuries to him to which she testified at trial. Dr. Nguyen's report from September 2010 states Rewis reported a fall "approximately one year ago" followed by having "twisted her low back in July 2010." Dr. Munneke opined September 1, 2011 that Rewis sustained no work injury, but his report includes Rewis's statement that on or about June 20, 2010, "she was making a delivery in the rain when she slipped and fell and landed on her back." Dr. Munneke's report includes Rewis's report of the July 19, 2010 re-injury, in which she hurt her back lifting a five gallon container of cooking oil. Dr. Reinschmiedt's notes show Rewis reported she hurt her shoulder in a fall June 22, 2010. Dr. Martin's report from August 11, 2010 includes Rewis's report that "she fell at work three to four weeks ago." Employer's Exhibit 4 includes a patient intake form in which Rewis indicated her back symptoms appeared July 19, 2010, but she also indicated the injury was not caused by an accident, and for "type of accident" she checked "other" rather than "work." The "Employer Incident Report" is dated June 9, 2010. In it Rewis reported that at 7:45 a.m. that day she "was delivering food . . I was heading back to van, it was pouring rain and I slipped and fell." On the report, Rewis indicated she was sore down her left side and her shoulder was affected.

¶10 The weight of the evidence supports a finding that Rewis fell while on the job in June or July 2010 and injured her back. While there was evidence disputing Rewis's credibility and showing past injuries, the trial court's decision on compensability is not against the clear weight of the evidence.

SUSTAINED.

JOPLIN, V.C.J., and MITCHELL, J. (sitting by designation), concur.

(FOOTNOTES):

1 Rewis testified she re-injured her back July 19, 2010 when she was filling fryers with oil from a five gallon bucket and the oil splashed, causing her to jump back and twist her back.

2 Employer's claim, in its Reply Brief, that Rewis's "complaints of injury at trial were identified as being the same as injuries she complained of in 2004 when she settled a low back claim against Wal-Mart," is not supported by Employer's citation to the transcript.

( Ed Note: 85 O.S. 1 )