Presumptions and Burden Of Proof

1. Presumptions

A presumption causes a fact to be assumed unless the party against whom the presumption operates persuades the trier of fact otherwise. 12 O.S. §2303; Hawkins v. Oklahoma County Court Clerks Office, 2001 OK CIV APP 83, 26 P.3d 124.

1.1. Treating Physician's Opinion

There shall be a rebuttable presumption in favor of the treating physician’s opinions on the issue of temporary disability, permanent disability, causation, apportionment, rehabilitation or necessity of medical treatment.
85 O.S. §17(A)(2)(a)

ln Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557, the Oklahoma Supreme Court noted that "the statutory rebuttable presumption in favor of the treating physician's opinions does not change the value or weight of the evidence. The rebuttable presumption operates to impose upon the opposing party the duty to offer evidence to the contrary." Id. at ¶13, 163 P.3d at 562. The Court further explained:

[W]hen the workers' compensation court admits the treating physician's report into the record as competent, probative evidence, the report is prirna facie evidence of causation, disability, and/or medical and rehabilitation needs as set out in the report and the burden of proof is shifted to the opposing party to offer evidence to the contrary; when the opponent, here the claimant, offers obiective medical evidence to the contrary and the courl admits that evidence into the record as competent, probative evidence, the presumption disappears; and the judge then proceeds to weigh all evidence and adjudicate the issues presented.
Id. at n25, 163 P.3d at 565 (emphasis added).

1.2. Notice of Injury to Employer

1.2.1. Single Event Injury

Unless an employee or former employee gives oral or written notice to the employer or former employer within thirty (30) days of the date an injury occurs or the employee receives medical attention from a licensed physician during the thirty-day period from the date an injury occurred, the rebuttable presumption shall be that the injury was not work related. 85 O.S. §24.2(A)

1.2.2. Occupational Disease or Cumulative Trauma

There shall be a rebuttable presumption that injury from occupational disease or injury caused by cumulative trauma does not arise out of and in the course of employment unless oral or written notice is given by the employee to the employer within ninety (90) days of the employee's separation from employment. 85 O.S. §24.2(A)

Johnson Controls/York International v. Kizer, 2008 OK CIV APP 86, 196 P3d 191.

1.3. Payment of Premiums

Every contract of workers' compensation insurance shall be conclusively presumed to be a contract for the benefit of each and every person upon whom insurance premiums are paid, collected, or whose employment is considered or used in determination of the amount of premium collected upon such policy. 85 O.S. §65.3

1.4. Disease or Injury to Firefighter

A firefighter who is disabled as a result of heart disease, injury to the respiratory system, infectious disease, or the existence of any cancer which was not revealed by the physical examination passed by the member upon entry into the department, shall be presumed to have incurred the disease or injury while performing his duties unless the contrary is shown by competent evidence. "Infectious disease" means hepatitis, human immunodeficiency virus, meningitis and tuberculosis. 11 O.S. §49-110(A)

1.5. Death Beneficiary Is No Longer Actually Dependent

A person found to be actually dependent shall be presumed to be no longer actually dependent three (3) years after the time as of which the person was found to be actually dependent. This presumption may be overcome by proof of continued actual dependency. 85 O.S. §22(8)(a)(9).

1.6. Affidavit of Exempt Status

Execution of affidavit of exempt status on form supplied by the Insurance Commissioner establishes a rebuttable presumption that the executor is not an employee for purposes of the Workers' Compensation Act. 36 O.S. §924.4(B).

1.7. No Change of Condition Since the Last Order

Oklahoma law presumes that "the physical condition of a previously impaired employee has not changed since the last adjudication of his or her condition, and that the employee was in the same physical condition, as that adjudicated in the past, at the time of his or her subsequent injury." B.F. Goodrich v. Frost, 630 P.2d 321 (Okla. 1981). However, the presumption is rebuttable, and the claimant bears the burden of proof, by preponderance of the evidence, to show (1) that a change of condition for the worse has occurred since last prior order, and (2) that the change of condition is due to the original injury. See, e.g., Tinsley v. Goldenstern & Stolpher, 353 P.2d 6 (Okla. 1960).
Wald v. Roto Rooter, 1995 OK CIV APP 122, 910 P.2d 354.

1.8. Working Claimant is not Permanently Totally Disabled

[W]here a worker has held continuous employment in the interim period between the occurrence of the injury and the court hearing for determination of the disability, there inheres a rebuttable presumption that the claimant has not sustained a permanent total disability. . . . .Where claimant urges the court that he has worked under necessity, but claims severe discomfort and pain, such testimony must be supported and ascertained by competent medical evidence which is the result of clinical observations.
Special Indemnity Fund v. Stockton, 1982 OK 119, 653 P.2d 194.

2. Burden of Proof

The burden of proof, by a preponderance of the evidence, shall be on the party requesting benefits or relief pursuant to the provisions of the Workers’ Compensation Act unless otherwise specifically provided for by law.
85 O.S. §1.1(B)

The Claimant has the burden to produce evidence and the burden of persuasion to establish that the injury is work related. American Management Systems, Inc. v. Burns, 1995 OK 58, ¶7, 903 P.2d 288, 292.

Mere suspicion that an employee intended to injure himself is not sufficient to sustain the burden of proving the affirmative defense of intentional injury. "It is impermissible to ignore testimony that is consistent with itself, is not inherently improbable, and is unimpeached by other direct or circumstantial evidence." Pham v. Wuu Jau Company Inc., 2006 OK CIV APP 139, 146 P.3d 868.

A common-law relationship must be established by evidence that is clear and convincing. Maxfield v. Maxfield, 1953 OK 390, 258 P.2d 915; Standefer v. Standefer, supra. Clear and convincing evidence is the "measure of proof which produces in the nind of the fact finder a firm belief or conviction as to the truth of the allegation(s) sought to be established." Barnes v. Oklahoma Farm Bureau Mutual Insurance Co., 2000 OK 55, ¶34, 11 P.3d 162, 175.

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