Kerr Glass Co. v. Wilson

1994 OK CIV APP 69, 880 P.2d 414, 65 O.B.A.J. 2851, 1994 Okla. Civ. App. LEXIS 91, 1994 WL 440871
CourtCourt of Civil Appeals of Oklahoma
DecidedMay 3, 1994
Docket81877, 82191
StatusPublished
Cited by12 cases

This text of 1994 OK CIV APP 69 (Kerr Glass Co. v. Wilson) 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
Kerr Glass Co. v. Wilson, 1994 OK CIV APP 69, 880 P.2d 414, 65 O.B.A.J. 2851, 1994 Okla. Civ. App. LEXIS 91, 1994 WL 440871 (Okla. Ct. App. 1994).

Opinions

OPINION

HANSEN, Judge:

Petitioners Kerr Glass and CNA Insurance Company (collectively Kerr), seek review of a Workers’ Compensation Court order finding Respondent David Wilson (Claimant) had sustained compensable injuries and appor[416]*416tioning compensation between Kerr and Respondents, Ball Incon Glass and Travelers Insurance Company (collectively Ball).

Claimant was employed by Kerr for approximately nine and one half years until February 28, 1992. On that date, Ball took over operation of the Kerr plant, however Claimant’s work conditions remained the same. Claimant filed his claim on September 17, 1992.

The claim lists Ball Incon as employer and alleges “strain/sprain” injuries to both feet from “standing for long periods of time on glass pieces”. Claimant provided the date of last exposure, August 23, 1992, as the date of accident.1

Approximately three months after its entry of appearance, Ball moved to implead Kerr. Ball asserted in support of its motion that Claimant had testified to cumulative trauma injury during employment with Kerr, and further asserted such injury was capable of apportionment between employers. Kerr entered its appearance shortly thereafter, but subsequently moved to dismiss the claim as to itself.

In its order, the trial court first denied Kerr’s motion to dismiss. The court found that on August 23, 1992, Claimant sustained a compensable injury to the right foot (ankle) as the result of cumulative trauma 2, causing four percent permanent partial disability. The court apportioned payment of the award, ordering Kerr to pay ninety five percent and Ball the remaining five percent. The court further found the claim as to Claimant’s left foot resulted from specific trauma in 1986 and was barred by the statute of limitations, and that Claimant became aware of his cumulative trauma injuries in April, 1990.

Kerr now seeks review of the Workers’ Compensation Court order.3 Kerr does not contest that Claimant sustained a com-pensable injury, but contends liability for such a cumulative trauma injury should be determined under the “last injurious exposure rule”. Kerr asserts, alternatively, that if liability is to be apportioned, it should be based on medical evidence of the degree of impairment caused by each employer, and not on the basis of time employed or some version of the “awareness doctrine”.

More specifically, Kerr contends cumulative trauma claims, which share the same limitations provision as occupational diseases, should have applied the same “last injurious exposure rule” used to determine liability among successive employers for occupational disease claims.

The applicable statute of limitations, which is set forth at 85 O.S.1991 § 43(A), provides, in relevant part:

... with 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.

Kerr suggests § 43(A) be read with 85 O.S.1991 § 11(4), which codifies the “last injurious exposure rule”, and which Kerr asserts is instructive as to imposition of liability upon employers for cumulative trauma injuries. Section 11(4) directs that:

Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier, ... (emphasis added).

[417]*417The Court of Appeals has previously considered arguments similar to Kerr’s contentions regarding §§ 11(4) and 43(A). Kerr would have us follow the reasoning in Mid-Continent Casualty Co. v. Bradley, 855 P.2d 145 (Okla.App.1993). In Mid-Continent Casualty, the Court of Appeals held the date of injury in a cumulative trauma case, for the purpose of fixing liability of the employer and insurance carrier, if any, is the date of last trauma.

However, the Mid-Continent Casualty Court did not directly address the question of apportionment, because the issue posed by the Workers’ Compensation Court order was which of two consecutive insurance carriers would be solely liable for compensation. The only question was whether to apply the “awareness doctrine”, or to use the date of last trauma to impose this sole liability.

The Court of Appeals dealt more directly with the question of apportionment of liability for cumulative trauma injuries in Pauley v. Lummus Construction, 836 P.2d 692 (Okla.App.1992), and in Lummus Construction v. Vancourt, 838 P.2d 43 (Okla.App.1992).4

In both Pauley and Vancourt, the Court of Appeals rejected application of the “last injurious exposure rule” to cumulative trauma injuries, and instead found apportionment of liability to be appropriate. Both decisions also rely on Parks v. Flint Steel Co., 755 P.2d 680 (Okla.1988).

In Parks, the Supreme Court held 85 O.S. 1991 § 11(4), with its last injurious exposure provision, was designed to apply in situations where an employee contracts an “occupational disease”, and found the section inapplicable to cumulative trauma cases, when the injury occurred in a claimant’s prior employment.

The Supreme Court also did not accept the argument in Parks that the last injurious exposure rule in § 11(4) should be applied to cumulative trauma injuries by analogy. The analogy was purported to apply because “for all practical purposes, cumulative effect accidents and occupational diseases are essentially the same thing with but a different name”. In discussing the legal authority cited in Parks, the Supreme Court, while not expressly overruling the Court of Appeals decision in Utica Square Salon of Beauty v. Barron, 595 P.2d 459 (Okla.App.1979), unfavorably viewed the Court of Appeal’s use of such an analogy in that case.

As noted in Pauley v. Lummus Construction, “[t]he Legislature has expressly limited application of the last injurious exposure rule to occupational disease”. In the same enactment5 by which the Legislature' amended § 43 to provide a two year limitation period from last trauma for cumulative trauma injuries, or from last exposure for occupational disease, the Legislature also amended § 11, but did not make the “last injurious exposure rule” applicable to cumulative trauma injuries. If the Legislature had intended § 11(4) to apply to cumulative trauma injuries, it would have so provided by expressly amending that section.

In B.F. Goodrich Co. v. Williams, 755 P.2d 676 (Okla.1988), the Supreme Court applied the maxim expressio unius est exclusio alter-ius6 to find that the “awareness doctrine” was limited to those occupational diseases specifically mentioned in § 43(A).

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Kerr Glass Co. v. Wilson
1994 OK CIV APP 69 (Court of Civil Appeals of Oklahoma, 1994)

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Bluebook (online)
1994 OK CIV APP 69, 880 P.2d 414, 65 O.B.A.J. 2851, 1994 Okla. Civ. App. LEXIS 91, 1994 WL 440871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerr-glass-co-v-wilson-oklacivapp-1994.