Owings v. Pool Well Service , 63 O.B.A.J. 3503 ( 1992 )

KAUGER, Justice.

The issue presented concerns the standard of review applicable on appeal from a decision of the three judge review panel (panel) of the Workers’ Compensation Court. We find that a decision of the three judge review panel of the Workers’ Compensation Court may not be reversed on appeal if it is supported by any competent evidence.¹ Because the record contains competent evidence supporting the panel’s decision, the order is sustained.

FACTS

The appellee, Darrel Glen Owings (Ow-ings/employee), filed a workers’ compensation claim for disability on September 18, 1990. Owings claimed he sustained a work-related injury arising out of and in the course of his employment with the appellant, Pool Well Service (Pool/employer). Owings asserted that on Thursday, September 6, 1990, he was struck by the equipment he was operating. Owings finished work on Thursday and returned on Friday and on Saturday. The following Monday, Owings reported for work but left complaining of pain. He went to the hospital that evening. Owings did not return to work for Pool after seeking medical attention.

At trial on April 25, 1991, Owings and his wife testified and submitted medical reports in support of the compensation claim. Two of Owings co-workers contradicted Owings’ testimony. The co-workers testified that, on the day of the accident, Ow-ings was not operating the equipment he claims to have been struck by and was not in the area where he said the injury occurred. On direct examination, Owings testified that he had no other injuries. However, under cross examination, Owings admitted that he had sustained a subsequent work related injury for which he was receiving compensation from another employer.

The trial court found that Owings had suffered a work-related injury and awarded compensation. Pool sought relief from the three judge review panel of the Workers’ Compensation Court.² The panel vacated the trial court’s decision finding that it was against the clear weight of the evidence. In denying Owings compensation, the panel stated that Owings’ testimony lacked credibility and that he was not injured in the course of his employment with Pool. Although the Court of Appeals recognized the existence of evidence in support of the panel’s decision,³ it reversed holding that the panel should not have re-weighed the evidence. We granted certiorari on July 9, 1992, to determine the standard of review applicable on appeal from a decision of the three judge review panel of the Workers’ Compensation Court.

A DECISION OF THE THREE JUDGE REVIEW PANEL OF THE WORKERS’ COMPENSATION COURT MAY NOT BE REVERSED ON APPEAL IF IT IS SUPPORTED BY ANY COMPETENT EVIDENCE. BECAUSE THE RECORD CONTAINS COMPETENT EVIDENCE SUPPORTING THE PANEL’S DECISION, THE ORDER IS SUSTAINED.

Pool asserts that the evidence presented to the Workers’ Compensation Court may not be weighed on appeal, and that orders issued by the Compensation Court must be sustained if supported by any competent evidence. Owings argues that the decision of the three judge review panel was not based on competent evidence.

Claims filed under the Workers’ Compensation Act, 85 O.S.1991 § 1 et seq., are subject to fact finding within the limited jurisdiction of the Workers’ Compensation Court. The trial court serves as a trier of fact and renders a decision. Unsatisfied parties may seek relief from an en banc panel of the Workers’ Compensation Court or on direct appeal to this tribunal.⁴ The review panel, made up of three judges from the Workers’ Compensation Court, examines the factual findings of the trial judge. The panel may alter the trial court’s decision if it finds that the decision is against the clear weight of the evidence.⁵ Review of the panel’s findings may be sought in this Court.⁶ When a panel’s decision is appealed, it will be sustained if supported by any competent evidence.⁷

Appellate review of a panel’s decision is confined to the search for any competent evidence.⁸ Here, Owings’ co-workers testified that, on the day of the alleged injury, he was not operating the equipment he claims to have been struck by and that he was not working in the area where Owings says he was hurt. This testimony is relevant and material to a claim of injury within the scope of employment. It is competent to support the panel’s decision. Additionally, Owings gave conflicting testimony concerning a subsequent work-related injury. The existence of other evidence supporting Owings’ claim is immaterial. Review is confined to a search for any competent evidence which could support the order of the review panel.⁹ Because the panel’s decision is supported by competent evidence, it must be sustained.

CONCLUSION

On appeal from a three judge panel of the Workers’ Compensation Court, the appellate court is limited to canvassing the record to determine if there is any competent evidence to support the panel’s decision.¹⁰ A decision of the three judge review panel of the Workers’ Compensation Court may not be reversed on appeal if it is supported by any competent evidence.¹¹ Inconsistent testimony by Owings and conflicting testimony of co-workers was both material and relevant to the holding of the review panel. The order of the three judge panel is sustained.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; ORDER OF THE THREE JUDGE PANEL SUSTAINED.

OPALA, C.J., and LAVENDER, SIMMS, HARGRAVE, SUMMERS and WATT, JJ., concur. HODGES, V.C.J., and ALMA WILSON, J., dissent.

1 . Parks v. Norman Mun. Hosp., 684 P.2d 548, 551-52 (Okla.1984). See also, Williams v. Vickers, Inc., 799 P.2d 621, 624 (Okla.1990); Bostick Tank Truck Serv. v. Nix, 764 P.2d 1344, 1346 (Okla.1988).

The dissent takes issue with the reliance upon Parks for the proposition that the decision of the three judge review panel is to be upheld if it is supported by any competent evidence. However, all Justices recently concurred in a case in which Parks was quoted and relied upon for this very proposition. Brent v. Agrico Chemical Co., 839 P.2d 189, 192 (1992). Although the reliance on Parks in Brent resulted in the alteration of an award for the employee, the employee did receive compensation under the award sustained by the three judge panel. Here, reliance on Parks results in the award to the employee being reversed because of the three judge panel’s findings. The dissent also takes issue with the evaluation of the testimony presented in the majority opinion. However, a close reading of the dissent reveals that even its assessment of the evidence recognizes contradictions in the testimony supporting the employee. Were we acting as the original arbiters of the evidence, we might not have reached the same decision as the three judge panel. However, the single question presented is whether the decision of the three judge panel of the Workers' Compensation Court was supported by any competent evidence. Brent v. Agrico Chemical Co., see this note, supra.

2 . Title 85 O.S.1991 § 3.6 provides in pertinent part:

"A. All the evidence pertaining to each case, except upon agreed orders, shall, insofar as may be possible, be heard by the Judge initially assigned to the case. Upon the completion of such hearing or hearings, the Judge hearing the cause shall make such order, decision or award as is proper, just and equitable in the matter. Either party feeling himself aggrieved by such order, decision or award shall, within ten (10) days, have the right to take an appeal from the order, decision or award of the Judge to the Workers’ Compensation Court sitting en banc. Such appeal shall be allowed as a matter of right to either party upon filing with the Administrator a notice of such appeal.... The Court en banc may reverse or modify the decision only if it determines that such decision was against the clear weight of the evidence or contrary to law....

B. The order, decision or award of the Court shall be final and conclusive upon all questions within its jurisdiction between the parties, unless, within twenty (20) days after a copy of such order, decision or award has been sent by the Administrator to the parties affected, an action is commenced in the Supreme Court of this state to review such order, decision or award. Any order, decision or award made by a Judge of the Court shall be considered as final under the provisions of this section unless appealed to the Workers’ Compensation Court sitting en banc as provided for in subsection A of this section. The order, decision or award of a Judge of the Court shall be final and conclusive upon all questions within his jurisdiction between the parties unless appealed directly to the Supreme Court or to the Workers' Compensation Court sitting en banc as hereinbefore provided.... Such action shall be commenced by filing with the Clerk of the Supreme Court a certified copy of the order, decision or award of the Workers’ Compensation Court sitting en banc or the Judge attached to the petition by the complaint wherein the complainant or petitioner shall make his assignments or specifications as to wherein said order, decision or award is erroneous or illegal_”

3 . The Court of Appeals opinion provides in pertinent part:

"... The only conflict in the evidence on the issue of whether claimant sustained a job-related injury came from adverse witnesses. ...”

4 . Title 85 O.S.1991 § 3.6, see note 2, supra.

5 . Title 85 O.S.1991 § 3.6, see note 2, supra; Parks v. Norman Mun. Hosp., see note 1 at 549, supra.

6 . Title 85 O.S.1991 § 3.6, see note 2, supra.

7 . Williams v. Vickers, Inc., see note 1, supra; Bostick Tank Truck Serv. v. Nix, see note 1, supra; Parks v. Norman Mun. Hosp., see note 1, supra. See also, LaBarge v. Zebco, 769 P.2d 125, 128 (Okla.1988).

8 . Bostick Tank Truck Serv. v. Nix, see note 1, supra.

9 . In the Matter of the Death of Walker, 751 P.2d 1068, 1069 (Okl.1987).

10 . The Legislature has had the opportunity in seven sessions since this Court’s decision in Parks v. Norman Mun. Hosp., see note 1, supra, to change the settled construction of 85 O.S. 1991 § 3.6, see note 2, supra and 85 O.S.1991 § 26. It has not seen fit to do so. Legislative silence, when it has the authority to speak, may be considered as an understanding of legislative intent. City of Duncan v. Bingham, 394 P.2d 456, 460 (Okla.1964).

11 . Parks v. Norman Mun. Hosp., see note 1, supra. See also, Williams v. Vickers, Inc., note 1, supra; Bostick Tank Truck Serv. v. Nix, note 1, supra.