Energy Exchanger Co. v. Hill

2006 OK CIV APP 56, 135 P.3d 833, 2006 Okla. Civ. App. LEXIS 27, 2006 WL 1320140
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 3, 2006
Docket101,399
StatusPublished
Cited by2 cases

This text of 2006 OK CIV APP 56 (Energy Exchanger Co. v. Hill) 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
Energy Exchanger Co. v. Hill, 2006 OK CIV APP 56, 135 P.3d 833, 2006 Okla. Civ. App. LEXIS 27, 2006 WL 1320140 (Okla. Ct. App. 2006).

Opinions

Opinion by

LARRY JOPLIN, Judge:

¶ 1 Petitioners Energy Exchanger Company and American Interstate Insurance Company (Employer) seeks review of an order of a three-judge panel of the Workers’ Compensation Court affirming the trial court’s award of benefits to Respondent Terry L. Hill (Claimant). In this proceeding, Employer complains the Workers’ Compensation Court erred as a matter of law in apportioning liability for Claimant’s cumulative trauma [835]*835hearing loss between it and Claimant’s current employer, CusUO-Fab, contrary to the express provisions of 85 O.S. § 11(B)(5).

¶2 Claimant, a welder, worked for Employer for over seventeen years. Claimant voluntarily resigned May 31, 2001. In June and July 2001, Claimant worked as a welder for Hughes-Anderson Heat Exchangers. Beginning August 1, 2001, Claimant went to work as a welder for Cust-O-Fab.

¶ 3 On October 26, 2001, Claimant filed his Form 3 to commence the instant proceeding, asserting cumulative trauma binaural hearing loss arising out of and in the course of his seventeen-year experience with Employer. In January 2002, Employer filed a Form 13, Motion to Join Additional Parties, seeking to join Hughes-Anderson Heat Exchangers and CusM)-Fab as additional party-respondents. In May 2002, the trial court dismissed Hughes-Anderson Heat Exchangers from the action.

¶ 4 At trial in June 2004, Claimant testified that he appreciated some job-related hearing loss as early as the mid-1990’s, but that he continued to be exposed to injurious noise levels throughout his tenure with Employer. Claimant admitted that his current employment with Cust-O-Fab was considerably quieter. Claimant admitted other exposures to noise, particularly, in a building explosion while in the armed forces, and in his non-job-related recreational activities.

¶ 5 In support of his claim, Claimant offered, and the trial court admitted, the deposition of an examining physician, Dr. Hastings. Based on his examination, and a review of periodic audiometric tests administered to Claimant beginning in 1988, Dr. Hastings found that Claimant suffered fifty-three percent (53%) binaural hearing loss with associated tinnitus, all causally related to his employment with Employer.

¶ 6 Claimant also offered, and the trial court admitted, an Abbreviated Sound Level Survey of Employer’s workplace, conducted in 1990. That evidence showed a “significant elevation of noise level” in the workplace and recommended that “all employees throughout the shop area and assembly area wear hearing protection.... ”

¶ 7 In opposition to the claim, Employer offered, and the trial court admitted, the report of its examining physician, Dr. Petti-grew, who found that Claimant suffered thirty-nine and seven-tenths percent (39.7%) bin-aural hearing loss. However, Dr. Pettigrew opined that “ninety (90) percent of this impairment is a result of his employment for over twenty-five (25) years prior to being employed with CusUO-Fab,” and that, “[o]f the remaining ten (10) percent, ... eight (8) percent of this impairment is due to [non-job-related] outside noise exposure, ..., and ... two (2) percent ... due to his employment at CusUO-Fab....”

¶ 8 Employer also introduced, and the trial court admitted, the report of another physician, Dr. Gillock, who opined that Claimant suffered thirty-four and seven-tenths percent (34.7%) binaural hearing loss. Dr. Gillock attributed “25% of this impairment (8.9% to the ears) to non-work related noise exposures,” and the “remaining 75% of his hearing loss among ... (a) [Employer] — 20% to the ears[;] (b) Hughes-Anderson- — 0% to the ears[;][and] (e) Cust-O-Fab — 5.8% to the ears,” with no “permanent partial impairment related to tinnitus.”

¶ 9 On consideration of the evidence, the trial court awarded benefits for thirty-two percent (32%) binaural hearing loss, over and above five percent (5%) binaural hearing loss due to non-work-related exposures. However, the trial court apportioned liability for Claimant’s hearing loss between Employer and CusU-O-Fab, reasoning:

[T]he injurious exposure experienced by the [Claimant while working for respondent, CUST-O-FAB, was not and is not of the same or similar severity to justify the application of 85 O.S. § 11(B)(5), which would in effect tag CUST-O-FAB with full liability fo[r] the cumulative trauma hearing loss alleged herein. Alternatively, ..., [Claimant’s date of injury was his legal awareness of a work related hearing loss in the early to mid 1990’s, long before the statutory change in the law that is contained in 85 O.S. § 11(B)(5).

The trial court consequently held Employer “liable/responsible for 30 percent binaural hearing loss,” and CusUO-Fab “liable/re[836]*836sponsible for 2 percent binaural hearing loss,” “as a result of his work related, cumulative trauma hearing loss alleged herein.” On Employer’s petition for intra-court review, a three-judge panel unanimously affirmed the trial court’s order as neither contrary to law nor against the clear weight of the evidence.

¶ 10 In its sole proposition of error to this Court, Employer asserts the Workers’ Compensation Court erred as a matter of law in apportioning liability for Claimant’s cumulative trauma hearing loss between it and Claimant’s current employer, Cust-O-Fab. Here, Employer argues the express terms of 85 O.S. § 11(B)(5) impose liability for the full extent of disability attributable to cumulative trauma injuries on the employer in whose employ the' claimant “was last injuriously exposed to the trauma during a period of at least ninety (90) days or more.” So, says Employer, because Claimant worked for Cust-O-Fab for more than ninety (90) days during which he “was last injuriously exposed” to the trauma of that workplace, and because the medical evidence of both parties showed that Claimant suffered some hearing loss during his current employment with CusM)-Fab, § 11(B)(5) imposed liability for all of Claimant’s cumulative trauma hearing loss on Cust-O-Fab, and the Workers’ Compensation Court erred as a matter of law in apportioning liability. See, e.g., Celestica Inc. v. Hines, 2004 OK CIV APP 22, 86 P.3d 1095.

¶ 11 Cust-O-Fab responds, asserting that Claimant became aware of his job-related hearing loss sometime in the mid 1990’s, prior to enactment of § 11(B)(5), and that the law in effect at the time of Claimant’s awareness of his job-related hearing loss controls the rights and obligations of the parties. See, e.g., Cole v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542; CR Industries v. Dorsey, 1998 OK 111, 970 P.2d 179; Southwest United Industries v. Polston, 1998 OK 78, 964 P.2d 210; Rankin v. Ford Motor Co., 1996 OK 94, 925 P.2d 39. So, says Cust-O-Fab, because the law in effect at the time of Claimant’s awareness permitted apportionment, and because the medical evidence supports some apportionment of liability between it and Employer, the order of the three-judge panel should be sustained.

¶ 12 Prior to enactment of § 11(B)(5), the Court of Civil Appeals recognized that, where a claimant suffered cumulative trauma injuries in successive employments, or while insured by successive insurers, apportionment of liability for the claimant’s benefits was proper. See, Ball-Incon Glass v. Adams, 1995 OK CIV APP 16, 894 P.2d 439; Kerr Glass Co. v. Wilson, 1994 OK CIV APP 69, 880 P.2d 414; Lummus Const. v. Vancourt, 1992 OK CIV APP 113, 838 P.2d 43; Pauley v. Lummus Const., 1992 OK CIV APP 96, 836 P.2d 692.

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Related

CNA Insurance Co. v. Ellis
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Energy Exchanger Co. v. Hill
2006 OK CIV APP 56 (Court of Civil Appeals of Oklahoma, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
2006 OK CIV APP 56, 135 P.3d 833, 2006 Okla. Civ. App. LEXIS 27, 2006 WL 1320140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/energy-exchanger-co-v-hill-oklacivapp-2006.