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Tyson Foods Inc. v. Wade5/8/1998
Opinion Services
Decided: April 3, 1998
PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE JUDGES OF THE WORKER'S COMPENSATION COURT
AWARD VACATED
MEMORANDUM
The Respondent, Herbert C. Wade, sustained on-the-job injuries to his thoracic and lumbar spine on June 17, 1996, and June 26, of the same year. Consequently, Respondent was awarded 3% impairment to the body as a whole for his injuries to the thoracic spine and 8% impairment to the body as a whole for injuries to the lumbar spine. Medical treatment, temporary total disability and permanent partial disability benefits are not at issue in this cause and were not appealed to the three-Judge panel. The issue brought before the three-Judge panel, and reiterated in this review proceeding, is another order finding Respondent entitled to vocational rehabilitation benefits under the supervision of a vocational rehabilitation counselor for fifty-two weeks.
In the appeal to the three-Judge panel, the rehabilitation order was affirmed. One Judge Dissented. The reason for the Dissent was that the judge was of the opinion that the award was not fashioned to return the Respondent to gainful employment. The reason for this is that the award was to enable Respondent to attend the E.T. Dunlap Higher Education Center, with the ultimate goal of attaining a college degree in education. The dissenting Judge pointed out that 85 O.S. Supp. 1994, Section 16B limits vocational training to fifty- two weeks, with the possibility of an additional fifty-two weeks extension. The Dissenting Judge noted (and the Respondent admitted) that the college degree could not be completed in two years, and thus the ordered rehabilitative services would not have rendered respondent fit for the work he was training for because the degree would be incomplete at the end of that period.
Petitioner contests the award of rehabilitative services here on the same ground as the Dissenting member of the three-Judge panel, and also on the basis that there is no evidence to support such an award. Because of the following resolution we do not reach the question of whether an educational award that does not lead to the degree necessary to practice the newly chosen employment is erroneous as a matter of law. In examining the contention that there is no evidentiary basis for the award we review the decision of the three-Judge panel under the standard of review set forth in Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548, i.e., this court must sustain an award if it is supported by any competent evidence and is not contrary to law. Conversely, findings of fact are not binding on review if not supported by competent evidence. The Supreme Court in American Management Systems, Inc. v. Burns, stated at 1995 OK 58, , 903 P.2d 288, 291:
Whether an employee's injury arises out of employment - i.e., results from a risk which is reasonably connected to an assigned task - presents an issue of fact to be determined by the trial Judge. Before 1986 claimants were greatly aided in the probative process by the provisions of 85 O.S. 1981 Section 27 which then operated to shift to the employer the burden of producing evidence upon the critical elements of proof. Since the repeal of Section 27, that onus (both of producing evidence and of persuasion) rests entirely on the claimant who must adduce every fact necessary to establish compensability. With the legislative elimination of Section 27, no part of that responsibility may now be passed to the employer. It is for these reasons that pre-1986 jurisprudence on the quantum of proof needed to support an injury's nexus to employment must be re-examined for its conformi
Page 1 2 Oklahoma Employee Leasing Services
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