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Scheets v. Ada Fire Department12/18/2003
Claimant Jeffrey Scheets asks us to vacate an order of a three-judge panel of the Workers' Compensation Court affirming a trial judge's denial of compensation based on a finding that Claimant's cancer was not causally related to the conditions of his employment with the Ada Fire Department (Employer). We conclude the order is supported by competent evidence and sustain it.
Claimant, a firefighter for Employer for almost 2 years, was off-duty on March 8, 2001, when he had a grand mal seizure while burning brush. He was treated at a local hospital's emergency room and released. Subsequent seizures led to further testing, and Claimant was eventually diagnosed as having brain cancer known as a glial tumor or glioblastoma. After surgery and radiation therapy, he was unable to return to work.
Six months later, Claimant filed a Form 3 for "cumulative trauma injuries," i.e., alleging he had cancer of the brain resulting from "exposure to Cancer causing agents" with last exposure date of May 30, 2001. Employer filed an answer, denying Claimant's injuries arose out of and in the course of his employment. After the trial judge found that the evidence presented by Employer was " insufficient to overcome the presumption of compensability found at 11 O.S. §49-110," Employer filed an en banc appeal. A three-judge panel vacated that order and remanded the case for a new trial.
After the second trial, the trial judge filed an ORDER DENYING COMPENSABILITY, finding, in pertinent part:
THAT following a review of the entirety of the lay and expert testimony offered to the Court on DECEMBER 4, 2002, the Court herein finds that competent evidence was offered to support a finding that [Claimant's] diagnosed condition of cancer (glial tumor) is not causally related to the conditions of [Claimant's] employment with [Employer].
THAT [Claimant's] demand for benefits is DENIED.
THAT the Court has hereby determined [Employer] has overcome the statutory burden in favor of [Claimant's] demand for a finding of compensability.
Claimant filed an en banc appeal, and the three-judge panel affirmed the trial judge's order. This review proceeding followed.
In Johnson v. City of Woodward, 2001 OK 85, 38 P.3d 218, the Court held § 49-110 was applicable to proceedings on a firefighter's workers' compensation claim for one of the diseases covered by that statute. All of Claimant's arguments are premised upon the application of this statute.
Claimant first argues that the trial court's order was insufficient because it did not explain how Employer had overcome the presumption. However, Claimant did not raise this error in his Notice of Appeal in the en banc appeal, and he has waived any argument based on that alleged error. Red Rock Mental Health v. Roberts, 1997 OK 133, 940 P.2d 486.
Claimant's remaining arguments rely on the assertion that Employer's evidence was not sufficient to overcome the presumption of compensability provided by § 49-110. He argues our review of this question is de novo and not governed by the "any competent evidence" standard normally applicable where we are called upon to determine the sufficiency of the evidence presented to the trial court. We disagree.
There is no question that the presumption applied here, and the trial court specifically recognized its application. The issue left for resolution was whether Employer's evidence rebutted the presumption that Claimant's cancer is job-related. That inquiry relates to the "arising out of" component of a compensable injury which contemplates a causal relationship between the act engaged in at the time of inju
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