State Insurance Fund v. Klahr

MEMORANDUM OPINION CARL B. JONES, Judge: Linda Klahr, Claimant, sought compensation for injury to both her hands and thumbs due to repetitive trauma while employed by Respondent, Santas by Donna. Santas by Donna, in response, stated coverage was provided by the State Insurance Fund. State Insurance Fund, in response, stated they were not the responsible carrier because Santas’ insurance policy had been cancelled. The issue of temporary disability was tried on August 18, 1994. The following month an order was issued finding an injury date for Claimant of November 15, 1993; determining Claimant became aware of the injury in May, 1993; and, finding the employment aggravated a pre-existing impairment to both hands. The order also determined that at the time of awareness Petitioner, State Insurance Fund, was the insurance carrier for Respondent, Santas. The order found Claimant to be temporarily totally disabled and ordered benefits accordingly. It found the State Insurance Fund to be the insurance carrier, and ordered Fund to provide medical treatment. It is from this order that this review proceeding is brought. Petitioner, State Insurance Fund, raised two errors in its petition in error. First, the decision of the trial court is against the clear weight of the evidence, and second, the court erred in determining liability in this cumulative trauma accident based upon the date of awareness rather than the date of last exposure. The first proposition raised in the petition does not allege an error cognizable in a review proceeding from the Workers’ Compensation Court, because here the standard of review is whether or not there is competent evidence in the record to support the findings of the trial court. Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okla.1984). Furthermore, this argument has been abandoned as it is not discussed in Petitioner’s brief. Petitioner’s second argument is that it is an error of law for the trial court to have determined the date of injury to be the date [1159] of awareness rather than the date of last injurious exposure, which was November 15, 1993. Had the date of injury been determined to be the date of last hazardous exposure, Petitioner would not have been the responsible insurer. The argument centers around the revision of § 43. Title 85 O.S. 1991 § 43(A) now specifies the date of the injury for statute of limitations purposes is the date of last hazardous exposure. The argument that this should also be the date of the injury itself for purposes of fixing liability has a certain amount of symmetry, in that the statute of limitations would began running at the same time the law presumed the injury occurred. The date of last exposure had been held to be the date of injury in cumulative injury cases in the past by the Court of Appeals. See, Mid-Continent Casualty Co. v. Bradley, 855 P.2d 145 (Okla.App.1993), Utica Square Salon of Beauty v. Barron, 595 P.2d 459 (Okla.App.). However, the argument has been rejected by this panel and another panel of the Court of Appeals.1 Title 85 O.S.1991 § 11(4), provides when the employee is last injuriously exposed to the hazards of a disease, the current employer, and the employer’s insurance carrier, if any, shall be liable therefor, without right to contribution from any prior employer or insurance carrier. Cumulative trauma injuries are accidental injuries, and not diseases. As such, the appropriate date of injury should not be established by a statute dealing with diseases. Likewise, the accrual of the statute of limitations as established in this cause by § 43 does not, by itself, change the accidental injury to a disease controlled by § 11(4). This case does not involve the statute of limitations and we cannot conclude that the statutorily changed method for computing the period of limitations also changed the method for determining the date of injury for assessing the liability of successive insurance carriers. Consequently, we must determine that no error has been demonstrated by the Petitioner in this review proceeding. Any issue of apportionment between the Employer and the Fund would be a determination requiring a factual analysis. Apportionment was not mentioned or discussed in the proceeding before the trial judge, nor was it raised before the Three Judge Panel or in the briefs on review before this Court. Consequently, the issue of apportionment is not an issue here. The award is sustained. SUSTAINED. HANSEN, P.J., concurs in result with separate opinion. JOPLIN, J., concurs. Footnotes [1] Oklahoma Petroleum Workers' Compensation Association v. Mid-Continent Casualty Co., 887 P.2d 335 (Okla.App.1994), cert. denied. The argument has also been rejected by this panel of the Court of appeals, SOUTHWEST UNITED INDUSTRIES v. BILL POLSTON NO. 82,471, currently pending certiorari. Also disapproving of the use of the date of last exposure as the date of injury is the case of Red Rock Mental Health and State Insurance Fund v. Karen Roberts, Kelly Services and the Workers Compensation Court, 65 O.B.J. 4047, - P.2d - (Dec. 6, 1994), currently pending rehearing in the Oklahoma Supreme Court, which repudiates Utica and Bradley.