Centrilift v. Evans

1995 OK CIV APP 159, 915 P.2d 391, 1995 Okla. Civ. App. LEXIS 153, 1995 WL 852306
CourtCourt of Civil Appeals of Oklahoma
DecidedDecember 26, 1995
Docket85697
StatusPublished
Cited by6 cases

This text of 1995 OK CIV APP 159 (Centrilift v. Evans) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Centrilift v. Evans, 1995 OK CIV APP 159, 915 P.2d 391, 1995 Okla. Civ. App. LEXIS 153, 1995 WL 852306 (Okla. Ct. App. 1995).

Opinion

OPINION

GOODMAN, Presiding Judge.

This is a review of an order of a Workers’ Compensation Court three-judge panel affirming the trial court’s award of temporary total disability benefits, and continuing medical treatment. Based upon our review of the record and applicable law, the order is sustained in part, vacated in part, and the matter is remanded with instructions.

I

Claimant Ramona S. Evans filed her Form 3 June 27, 1994, alleging she had sustained a back injury “[a]t the time claimant was last exposed to repetitive motion and heavy lifting” during the course of her fourteen-year employment as a machinist for employer Centrilift. She sought continuing temporary total disability benefits from April 22, 1994, the day she was laid off. The employer denied the claimant had sustained an accidental injury in the course of her employment, but alleged she had suffered a single-trauma accident at home in May 1991.

A hearing on the matter was held February 13, 1995. The claimant testified; both parties submitted medical evidence.

In an order filed February 21, 1995, the trial court found that, on April 22, 1994, the claimant sustained an accidental personal injury to her back arising out of and in the course of her employment as a result of repeated trauma, and that as a result she had been, and remains, temporarily totally disabled since July 8, 1994. The court awarded benefits from that date, and continuing, not to exceed 150 weeks. The court also ordered the employer to furnish necessary medical treatment.

The employer appealed; a split three-judge panel affirmed the order. The employer seeks our review.

II

Dispositive of the employer’s first proposition of error — that the finding of work-related injury is not supported by competent evidence — is the employer’s admission “that there is competent evidence, albeit only Evans’ testimony, that her injury was causally related to her employment.”

The claimant testified “my back started bothering me several years back, before ’91, just an aggravated feeling [but] I just kept it quiet.” She conceded, however, that she first sought medical attention in May 1991 when she suffered back pain after tending to her home flower garden. She was on medical leave for 9 to 10 weeks. A “facet nerve block” relieved her pain, and she was released to return to work. Within a year, she said she “started noticing that my back was, you know, tightening up again.” She testified that this pain was more severe than she had experienced prior to treatment. She said she concealed her injury for fear of *394 retaliation. She continued to work until she was laid off, then sought medical attention. The claimant presented supporting medical documentation.

The employer acknowledges that we are bound by the any-eompetent-evidence standard set out in Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okla.1984). 1 The employer argues, however, “that the overwhelming documentary evidence ... show that the cause of Evans' injury was her activity in her garden at home.”

Although we may not agree with the trial court’s assessment of the evidence, we are bound to apply the Parks standard, and therefore we must decline the employer’s invitation to reweigh the evidence. Accordingly, we hold the finding of work-related cumulative trauma injury is supported by competent evidence.

Ill

The employer next contends the trial court erred in applying the last-injurious-exposure doctrine to establish the date of injury with respect to the statute of limitations, and the relevant wage rate.

Title 85 O.S.1991, § 43(A), reads, in relevant part:

[W]ith respect to disease or injury caused by repeated trauma causally connected with employment, a claim may be filed within two (2) years of the date of last trauma or hazardous exposure.

The claimant’s Form 3 was filed June 27, 1994, slightly over two months from the date of last work-related trauma. While the claimant sustained some injury in 1991, competent evidence supports the conclusion she suffered a worsening of her condition thereafter during the course of her employment, continuing through the date of last trauma.

It is well settled that, since the 1985 amendment of § 43, the statute of limitations in cumulative trauma cases involving continuous employment is measured from the date of last trauma. Thus, we hold the trial court correctly found the date of injury, for purposes of determining the timeliness of the Form 3, to be April 22,1994. B.F. Goodrich Co. v. Williams, 755 P.2d 676 (Okla.1988); Kerr Glass v. Hepler, 902 P.2d 1126 (Okla.Ct.App.1995).

However, the change in the method of computing periods of limitation for filing claims for cumulative trauma injuries in workers’ compensation proceedings had no effect on the method for determining the date of injury for assessing liability or establishing the rate of compensation. See, e.g., Oklahoma Petroleum Workers’ Compensation Ass’n v. Mid-Continent Casualty Co., 887 P.2d 335 (Okla.Ct.App.1994). The rate of compensation is calculated based upon the claimant’s average weekly wage at the time of injury. 85 O.S.1991, § 21; Wal-Mart Stores, Inc. v. Switch, 878 P.2d 357 (Okla.1994). In cumulative trauma cases, “the ‘accident’ which gives rise to the claim becomes such when the worker becomes aware of the ‘defect’ and of its job relatedness.” Williams Co. v. Lawrence, 824 P.2d 1134, 1136 (Okla.1992) (quoting McDonald v. Time-DC, Inc., 773 P.2d 1252 (Okla.1989)).

The record before us reveals the claimant sought medical attention in May 1991, and at that time she knew her back problems were related to her employment. The maximum rate for temporary total disability from November 1, 1990, through August 31, 1992, was $246 per week. Thus, we hold the trial court erred in awarding the claimant benefits based on the date of last trauma. That portion of the order is hereby vacated, and the matter is remanded with directions to base the claimant’s award on weekly wages of $246 for temporary total disability.

IV

The employer next argues the trial court erred “as a matter of public policy” in *395 ordering medical care to be administered by a Tulsa physician when the claimant lives in Texas. The employer specifically objects to paying the claimant’s travel-related expenses between Oklahoma and Texas. 2

Workers’ Compensation Court Rule 19A, 85 O.S.1991, ch. 4, app., provides:

Travel expenses incurred while receiving reasonable and necessary medical treatment shall be paid to the claimant as follows: Mileage and necessary lodging expenses are limited to the provisions of the State Travel Reimbursement Act, 74 O.S. Section 500.1 et seq.

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Bluebook (online)
1995 OK CIV APP 159, 915 P.2d 391, 1995 Okla. Civ. App. LEXIS 153, 1995 WL 852306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/centrilift-v-evans-oklacivapp-1995.