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Kelley v. Wolverine Tube, Inc.

Court of Appeals of Oklahoma, Division II

March 15, 2017

JEWEL KELLEY, Petitioner,
v.
WOLVERINE TUBE, INC., TWIN CITY FIRE INSURANCE, and THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS, Respondent.

          Mandate Issued: 04/17/2017

         PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS HONORABLE CARLA SNIPES, TRIAL JUDGE

          John R. Colbert, J. COLBERT & ASSOCIATES, Ardmore, Oklahoma, for Petitioner

          Laurie D. Judy, Molly E. McClure, HORNBECK VITALI & BRAUN, P.L.L.C., Oklahoma City, Oklahoma, for Respondents

          JERRY L. GOODMAN, JUDGE

         ¶1 Claimant Jewel Kelley seeks review of the August 11, 2016, three-judge panel of the Court of Existing Claims' order vacating the trial court's March 23, 2016, order. The trial court found Claimant's work-related low back injury compensable and awarded benefits. The panel vacated that decision and denied Claimant was entitled to compensation. Claimant seeks our review.

         BACKGROUND

         I. Prior Claim

         ¶2 The record reveals that in May 2011, Claimant became aware of pain in her neck and both hands arising from a work-related cumulative trauma injury. She notified Employer Wolverine Tube and continued to work. However, by mid-June she became aware of a new pain in her low back. She and Employer agreed Claimant should go to the emergency room. She did so on June 15, 2011, where she presented with a claim of neck pain with an additional complaint of low back pain beginning one day prior. [1] It was on that date she was informed of a cumulative trauma injury to her low back. She did not return to work immediately, and later had a two-level cervical fusion on her neck. [2] She then returned to work for Employer.

         ¶3 On September 29, 2011, Claimant filed claim No. 2011-10487L, alleging an injury to her "neck, both arms; both hands, low back" arising from a cumulative trauma injury with date of "termination" from employment of June 15, 2011. [3] On October 1, 2012, that claim was tried only on the issue of cumulative trauma injury to her neck and right and left hands with date of awareness of May 2011 and date of last exposure of June 15, 2011. [4] Except for one reference to her low back pain in June 2011, the evidence presented by Claimant was in support of her neck injury.

         ¶4 After a review of the evidence, the trial court issued an order, filed October 9, 2012, awarding Claimant benefits. [5] The order found Claimant experienced a work-related cumulative trauma injury to her neck, left and right hands with the date of awareness of May 2011. This order did not address the low back claim listed on the Form 3. The order was not appealed and is now final.

         II. Current Claim

         ¶5 Claimant's August 13, 2015, Form 3 alleged she suffered a work-related, cumulative injury to her back while working as an operator for Employer, with a date of last exposure of June 15, 2011. [6] This was the same alleged back injury she testified to in 2011, but which was not addressed in the first award in 2012.

         ¶6 Employer denied the claim on December 10, 2015, raised the defense of issue preclusion, alleged the back injury was not adjudicated in the 2012 order, and was not reserved in the 2011 hearing. Therefore, Employer argued the back injury claim was waived and could not now be heard in the second claim.

         ¶7 An evidentiary hearing on the issue of compensability for the back injury was held March 7, 2016. In an order filed March 23, 2016, the trial court, after finding Claimant to be a credible witness, found she suffered a work-related accidental personal injury to the low back as a result of cumulative trauma with the date of awareness of June 15, 2011, and last injurious date of exposure of August 12, 2015. [7] The trial court denied the issue preclusion defense, reserved rates of compensation for a future hearing, and ordered medical treatment.

         ¶8 Employer sought review on March 30, 2016, setting out portions of the trial court's order which it disputed, arguing the "findings. are against the clear weight of the evidence, and are unsupported by ...


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