Parks v. Kerr Glass

880 P.2d 408, 1994 WL 440831
CourtCourt of Civil Appeals of Oklahoma
DecidedMay 3, 1994
Docket82191
StatusPublished
Cited by8 cases

This text of 880 P.2d 408 (Parks v. Kerr Glass) 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
Parks v. Kerr Glass, 880 P.2d 408, 1994 WL 440831 (Okla. Ct. App. 1994).

Opinions

OPINION

HANSEN, Judge:

Petitioner Roger Parks (Claimant), and Cross-Petitioners/Respondents Kerr Glass and CNA Insurance Company (collectively Kerr), seek review of a Workers’ Compensation Court order finding Claimant had sustained compensable injuries and apportioning compensation between Kerr and Co-Respondents/Cross-Respondents, Ball Incon Glass and Travelers Insurance Company (collectively Ball).

Claimant was employed by Kerr from 1968 until February 28, 1992. On the latter date, Ball took over operation of the Kerr plant, however Claimant’s work conditions as a forklift operator remained the same. Claimant filed his claim on September 4, 1992, but

continued to work for Ball until the plant closed in December 1992.

The claim lists “Kerr Glass/Ball In-con” as employer and alleges cumulative trauma injuries1 to the back, left knee, right hip and right arm, wrist and hand. Claimant provided the date of last exposure, August 13, 1992, as the date of accident.2

Ball made the first entry of appearance, then approximately six months later 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 then found that on August 13, 1992, Claimant sustained a compensable injury to the right hand (wrist) and back. The court further found the claim as to the left leg (knee) resulted from specific trauma and was barred by the statute of limitations, and that Claimant became aware of the back and right hand injuries in November, 1990.

The court ordered Kerr to pay compensation based on 7 per cent disability as to the back and 2 per cent disability as to the right hand. The court ordered Ball to pay compensation based on 2 per cent disability as to the back and 1 per cent disability as to the right hand. The court did not make a specific finding as to apportionment of responsibility between Kerr and Ball, but apportionment is implicit in the order.

Claimant and Kerr now seek review of the Workers’ Compensation Court order. Claimant contends the lower court erred in using the “awareness doctrine”3 to establish [411]*411the rate of compensation and to determine apportionment of liability, and in failing to place all liability for the cumulative trauma injuries on Ball, the last employer causing harm.

Kerr also contends liability for cumulative trauma injuries should be determined under the “last injurious exposure rule”, but 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”.

We agree with Claimant’s contention the Workers’ Compensation Court applied the incorrect rate of compensation, but we need not reach his argument regarding the date of his injuries to determine the rate. Under the circumstances of this case, the rate of compensation is the same whether using the rule propounded by Claimant, or the rule which he opposes. However, the trial court applied a rate which applies to neither.

As we noted above, the trial court found Claimant sustained compensable injuries on August 13, 1992, and further found Claimant became aware of his injuries in November 1990. Under the facts here, the former date is the date deemed to be the date of last trauma, and the latter date is determined using the “awareness doctrine”. Neither Claimant nor respondents takes issue with the dates in these findings, thus they are now final.

At trial, Ball suggested to the court that the proper rate of compensation, applying the awareness doctrine, would be $173.00. In response to the court’s inquiry if he was in agreement with the rate, Claimant objected to use of the awareness doctrine and has never agreed to the $173.00 rate. The court apparently adopted Ball’s suggested rate.

However, the proper rate for either November 1990, or August 13, 1992, is $185.00.4 That amount was set as the maximum rate for permanent partial disability for the period beginning November 1, 1990, and ending October 31, 1993. The rate of $173.00 was for the three year period ending on October 31, 1990. The trial court’s use of the $173.00 rate was error.

We similarly decline to consider the merits of Claimant’s contentions regarding apportionment of liability between Kerr and Ball. Claimant does not question the total disability ratings apportioned by the court, only that the compensation determined by these ratings was apportioned.

Claimant does not, however, show that apportionment adversely affects his substantial rights, nor is it apparent from the record that he will be so affected. He would receive the same level of benefits from both employers jointly as he would from an award against either of them severally. Standing to prosecute an appeal must be predicated on an interest in the lower court’s decision which is direct, immediate and substantial. Pierson v. Canupp, 754 P.2d 548 (Okla.1988). Claimant has failed to establish an aggrieved party status on the question of apportionment.

In its appellate brief, Kerr first asserts the trial court’s order should be affirmed with respect to the finding that a claim for injury to the left leg (knee) was barred by the statute of limitations. While Claimant raised this issue in his Petition for Review, he abandoned the assertion by not supporting it with argument or authority in his brief in chief. James v. Beckwith, 805 P.2d 117 (Okla.App.1990). We will not consider Claimant’s argument regarding compensation for his knee injury.

Kerr next contends that 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:

[412]*412... 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).

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Kerr Glass v. Hepler
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Ball-Incon Glass v. Adams
1995 OK CIV APP 16 (Court of Civil Appeals of Oklahoma, 1995)
Parks v. Kerr Glass
880 P.2d 408 (Court of Civil Appeals of Oklahoma, 1994)

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Bluebook (online)
880 P.2d 408, 1994 WL 440831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parks-v-kerr-glass-oklacivapp-1994.