Evidence and Trial Procedure

1. Rules of Evidence

Evidence offered in a workers' compensation hearing is governed by the Oklahoma Evidence Code, 12 O.S.2001 § 2103(A) except where otherwise provided in the Act or the Rules of the Workers' Compensation Court. Rule 2, Workers' Compensation Court Rules, 85 O.S.2001 Ch. 4 App.

For a courtroom recap of the rules of evidence, click here.

2. Credibility and Weight of Evidence

The sole arbiter of the credibility of the witnesses is the trial court, and it may accord the testimony and medical evidence such probative value as it, in the exercise of its discretion, deems appropriate. Lamson & Sessions v. Doyle, 2002 OK 89, ¶12, 61 P.3d 215.

The trial court is the one to determine the credibility of the witnesses. It may refuse to believe any portion of the evidence which in its opinion is not entitled to credence. The court is not obliged to accept testimony as true merely because there is no direct testimony contradicting it, where it contains inherent improbabilities or contradictions which alone, or in connection with other circumstances in evidence, justify an inference that the evidence is false. Bittman v. Boardman Co., 1977 OK 32, 560 P.2d 967; King v. Pillsbury Bakery Co., 2001 OK CIV APP 38, 21 P.3d 82 (employer is not required to prove a claimant's injuries did not arise out of and in the course of his employment); Bailes v. Home of Hope, 1999 OK CIV APP 27, 977 P.2d 1145.

However, when claimant's testimony is unimpeached by other direct or circumstantial evidence, is consistent within itself and is not inherently improbable; it is impermissible for the fact finder to ignore it. Willoughby v. Tidelands Geophysical Co., Inc., 2002 OK CIV APP 99, 57 P.3d 132. Mere suspicion that an employee intended to injure himself is not sufficient to sustain the burden of proving the affirmative defense of intentional injury. Pham v. Wuu Jau Company Inc., 2006 OK CIV APP 139, 146 P.3d 868.

In general, factual determinations of the trial judge are impervious to attack if supported by competent evidence. As trier of fact the judge may rely in part on a claimant's medical evidence and in part on an employer's medical evidence in reaching a decision. As trier of fact, the Court may accept part of a witnesses' testimony, while rejecting other parts. As long as the trial findings are not incompatible with the overall evidence, as accepted or rejected, there is no basis for disturbing the factual determinations on appeal. TRW/Reda Pump v. Brewington, 1992 OK 31, ¶27, 829 P.2d 15.

3. 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. §1.1B

In establishing that an injury arose out of employment, a claimant bears "a two-pronged pattern of proof: (1) the claimant must show by lay testimony the nature of the work performed at the time of injury and (2) there must be expert medical opinion which establishes a nexus between that activity and the disability for which compensation is sought." Hughes v. Cole Grain Co., 1998 OK 76, ¶ 6, 964 P.2d 206, 208. If the claimant meets this burden of producing evidence, the employer must present some competent evidence to refute the claimant's evidence. Id. at ¶¶ 9-10, 964 P.2d at 209. An employer may meet this burden through competent lay testimony establishing that a causal relationship does not exist between the alleged injuries and claimant's employment. Emery v. Wal-Mart Super Center No. 576, 2000 OK CIV APP 4, ¶ 11, 2 P.3d 898, 901 (in a claim for injury to both feet, employer refuted claimant's evidence with claimant's own testimony of "walking outside employment").
Neal v. American Woodmark Corp., 2006 OK CIV APP 66, 136 P.3d 732

4. Trial Procedure

4.1. Continuances

The granting or refusing of a continuance is within the sound discretion of the trial court and is not reversible unless an abuse of discretion is shown. Further, a party who seeks reversal of the trial court's judgment due to an error in sustaining objections to interrogatories has the burden to show the trial court erred and that such error prejudiced his case. Norman Plumbing Supply Co. of Oklahoma City, Inc. v. Gilles, 1973 OK 89, 512 P.2d 1177. Although we understand Rule 8, 85 O.S.Supp 1995, Ch.4, App., provides that no depositions, interrogatories, etc., shall be filed with the Workers' Compensation Court, Employer's discovery requests were not attached to either of its Motions to Compel, filed June 2, 1997 and June 24, 1997, respectively, and only Claimant's answers were described in the latter motion.

More importantly, the record before us does not demonstrate that Employer's requests for production and interrogatories were filed with its request for review, which only generally referred to such requests. Without such information we cannot evaluate whether those items were subject to discovery and whether they were of such importance that Employer's rights were prejudiced. In short, we cannot determine whether the trial court abused its discretion. Employer has failed to demonstrate it was prejudiced and therefore has failed to demonstrate any abuse of discretion by the trial court. Ford v. Johnsons Testers, Inc., 1960 OK 248, 376 P.2d 338.
Skinner Tank Company v. Skinner, 1998 OK CIV APP 55, 960 P.2d 858

4.2. Stipulations

Bill Hodges Truck Co. v. Gillum, 1989 OK 86, ¶14, 774 P.2d 1063

5. Preclusion

5.1. Claim and Issue Preclusion

As a general rule, the doctrine of preclusion operates to enjoin successive attempts to relitigate the same issue in different forums.

[Fn47]Preclusion doctrine consists of two precepts. Claim preclusion, formerly known at common law as res judicata, teaches that a final judgment on the merits of an action precludes the parties from re-litigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided, in that action. State ex rel. Okla. Bar Ass'n v. Giger, 2004 OK 43, ¶12, 93 P.3d 32, 38; McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶7, 979 P.2d 252, 255-56; Miller v. Miller, 1998 OK 24, ¶23, 956 P.2d 887, 896; National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶12, 946 P.2d 662, 667; Veiser v. Armstrong, 1984 OK 61, ¶8, n. 9, 688 P.2d 796, 800, n. 9. The other preclusion doctrine, formerly known at common law as collateral estoppel, is issue preclusion. Under this doctrine, once a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not relitigate that issue in a suit brought upon a different claim. Giger, supra at ¶13, at 38; Ouellette v. State Farm Mutual Automobile Ins. Co., 1994 OK 79, ¶4, n. 8, 918 P.2d 1363, 1365, n. 8; National Diversified Business Services, Inc. supra note 25 at ¶11, at 666; Chambers v. City of Ada, 1995 OK 24, ¶9, n. 5, 894 P.2d 1068, 1072, n. 5; Wilson v. Kane, 1993 OK 65, ¶8, n. 23, 852 P.2d 717, 722, n. 23; Veiser v. Armstrong, supra note 25 at ¶8, n. 9, at 800, n. 9. See also Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1272 (10th Cir.1995) and Restatement of Judgments (Second) ¶27 (1982) ("When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim."). Issue preclusion prevents relitigation of facts and issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies.
State ex rel. Dept of Transportation v. Little, 2004 OK 74, 100 P.3d 707

Hefley v. Neely Insurance Agency, Inc., 1998 OK 12, 954 P.2d 135 (business owner was not precluded from suing his insurance agent in district court for negligent failure to advise him of the need for a special endorsement after the WCC found no coverage for his work-related injury).

Final order denying compensation held binding in subsequent action for damages. H.L. Hutton & Co. v. District Court of Kay County, 1965 OK 9, 398 P.2d 530 (denial of compensation on the ground that claimant was not an employee of the respondent); Gonzalez v. Dub Ross Company, 2009 OK CIV APP 78, 224 P.3d 1283 (where putative common-law wife is denied benefits, she is precluded from relitigating the issue in district court action against third party).

"Claim preclusion may not be invoked to block prosecution of a claim that was excepted or reserved in a prior judgment." Travelers Ins. Co. v. L.V. French Truck Service, Inc., 1988 OK 76, 770 P.2d 551.

Even if the issues in the former and current action are identical, the preclusion doctrine should only be invoked if the party against whom the earlier decision is interposed had a "full and fair opportunity" to litigate the critical issue in the previous case. National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶9, 946 P.2d 662, 665; Danner v. Dillard Department Stores, Inc., 1997 OK 144, ¶9, 949 P.2d 680.

The issue of consequential injury to a body part is not precluded by a prior denial of injury to the body part in the same claim. Adair Public Schools v. Haley, 2005 OK CIV APP 83, 122 P.3d 490 (After an order denying psychological overlay, the trial court awarded benefits for consequential psychological overlay when the worker proved that the disorder had occurred or worsened since the denial order); Oklahoma Natural Gas Co. v. Messer, 2011 OK CIV APP 20, __ P.3d __ (psychological overlay).

Smith, Diane Vaksdal. Finality of Judgment: Issue Preclusion, Claim Preclusion, and Law of the Case. Review of Colorado law of judgments that may affect pending litigation.

5.2. Law of the Case

The power and jurisdiction of the Court over each case shall be continuing and it may, from time to time, make such modifications or changes with respect to former findings or orders relating thereto if, in its opinion, it may be justified . . .
85 O.S. §84A.


This statutory authority of the Workers' Compensation Court to change the findings of a prior order is contrary to general case law in Oklahoma.

The decision of the appellate court on an issue of law becomes the law of the case once the decision is final and unreversed, in all subsequent stages. Berland's, Inc. of Tulsa v. North Side Village Shopping Center, Inc., 447 P.2d 768 (1968). As early as 1915 it was succinctly stated that NO question expressly decided or impliedly determined on a former appeal can be reversed on a second appeal between the same parties in regard to the same subject matter. Wellsville Oil Co. v. Miller, 48 Okl. 386, 150 P. 186, Affirmed 37 S.Ct. 362, 243 U.S. 6, 61 L.Ed. 559 (1915). This line of authority has been widely recognized as a necessity to insure an end to litigation. Without such a precept appeals after remand by the appellate courts would consume inordinate amounts of judicial scrutiny over ground previously covered. Indeed, the very finality of judgments themselves, as recognized in the doctrine of res judicata would be threatened, and the parties to the litigation could find purposeful delay commonplace.
Matter of Severns' Estate, 1982 OK 64, 650 P.2d 854.

A limited exception to this doctrine arises "when the prior decision is palpably erroneous and the Court is convinced failure to reverse the earlier decision will result in a gross or manifest injustice." Tibbetts v. Sight 'N Sound Appliance Centers, Inc., 2003 OK 72, ¶ 16, 77 P.3d 1042, 1050.

In Colorado the doctrine is discretionary when the trial court reviews its own prior ruling if it is no longer sound. However, when the issue is decided on appeal and remanded, its application is mandatory.

6. Other Issues

Spoliation doctrine, under which destruction of evidence without a satisfactory explanation gives rise to an inference unfavorable to the spoliator, is applicable to workers' compensation cases. Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting the ability of a litigant to prove his or her claim. Manpower, Inc. v. Brawdy, 2002 OK CIV APP 122, 62 P.3d 391.

Tainted IME evidence should be excluded when there has been impermissible contact with the IME physician. Williams v. Hormel Food Corp., 2003 OK CIV APP 37, 67 P.3d 375; Court Rule 26D.

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