Mandate Issued: 04/17/2017
TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS'
COMPENSATION COURT OF EXISTING CLAIMS HONORABLE CARLA SNIPES,
R. Colbert, J. COLBERT & ASSOCIATES, Ardmore, Oklahoma,
D. Judy, Molly E. McClure, HORNBECK VITALI & BRAUN,
P.L.L.C., Oklahoma City, Oklahoma, for Respondents
L. GOODMAN, JUDGE
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.
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.  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.  She then returned to work
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.  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.
Except for one reference to her low back pain in June 2011,
the evidence presented by Claimant was in support of her neck
After a review of the evidence, the trial court issued an
order, filed October 9, 2012, awarding Claimant benefits.
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.
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.  This was the same alleged back injury
she testified to in 2011, but which was not addressed in the
first award in 2012.
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
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.
The trial court denied the issue preclusion defense, reserved
rates of compensation for a future hearing, and ordered
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 ...