ROLLED ALLOYS, INC., and TRAVELERS PROPERTY CASUALTY CO. OF AMERICA, Petitioners,
DONALD WILSON and THE WORKERS' COMPENSATION COMMISSION, Respondents.
Mandate Issued: 05/24/2018
PROCEEDING TO REVIEW AN ORDER OF THE WORKERS'
COMPENSATION COMMISSION EN BANC HONORABLE TARA A. INHOFE,
ADMINISTRATIVE LAW JUDGE
Rops, DAVID KLOSTERBOER & ASSOCIATES, Oklahoma City,
Oklahoma, for Petitioner
M. Sanders, SANDERS AND ASSOCIATES, P.C., Tulsa, Oklahoma and
Bob Burke, Oklahoma City, Oklahoma, for Respondent
P. WISEMAN, JUDGE
Rolled Alloys, Inc., and Travelers Property Casualty Company
of America seek review of an order of the Workers'
Compensation Commission affirming the decision of an
administrative law judge finding compensability and
authorizing medical treatment for Claimant Donald Wilson.
After review, we sustain the Commission's decision.
AND PROCEDURAL BACKGROUND
Claimant filed a CC Form 3 on November 24, 2015, alleging
injury to his hands due to "repetitive twisting,
gripping controls on plasma machine." In the box titled,
"Date of Accident/Injury, " Claimant listed
"1. ago." Claimant indicated his injury resulted
from cumulative trauma while working for Rolled Alloys, Inc.
(Employer). An amended CC Form 3, filed on December 8, 2015,
lists the "Date of Accident/Injury, " as December
2014, and indicates the injury resulted from a single
incident and cumulative trauma. Another amended CC Form 3 was
filed on March, 28, 2016, which listed under the "Date
of Accident/Injury" title the following: "Awareness
April 2014." The amended form also added the left arm
and alleged a consequential injury to the left shoulder.
Employer denied Claimant suffered an injury arising out of
and in the course of his employment and also denied Claimant
filed his claim within the statutory period of time or timely
notified Employer of his injury. On April 8, 2016, Claimant
filed another amended CC Form 3, in which he removed the
consequential injury to the left shoulder.
At trial, Employer states it was asserting the statutory
defenses found in 85A O.S. §§ 67 and 69(A)(1).
Employer also asked the trial court to consider the
rebuttable presumption that arises from a lack of notice
found in 85A O.S.Supp. 2016 §§ 68 .
Claimant testified he first began having symptoms in his
hands and arms shortly before he saw Dr. Ryan Choplin in May
2014. He then saw Dr. Chalkin, who gave him splints to wear
at night. In September 2014, Claimant saw a nurse
practitioner at the Warren Clinic. After Claimant's
symptoms worsened, Employer sent him to Concentra in November
2015 for problems with his hands and his shoulder. He
reported the injury to John Sappington, Employer's
president. Claimant has filed a separate claim for his
Claimant "used [his] health insurance to get... surgery
to [his] right hand, " but he now needs surgery on his
left hand. Before he went to Concentra, his pain became more
intense after he took "the retaining cap off of a
torch." He worked until April 2016, when he had surgery
on his shoulder, and then he was off work for a period of
time, during which he received workers' compensation
benefits. Employer put him on light duty when he returned to
work. His last day of work was August 25, 2016.
The administrative law judge (ALJ) asked Claimant why he
waited until November 2015 to report to Employer that he was
having problems with his hands. Claimant stated:
Well, I was still able to work and I had a lot of
responsibilities at home. I was taking care of my stepson and
his wife and children, and I was still able to work. I
don't know, it was just--I don't know, I guess a lot
of it was the responsibilities at home kind of kept me from
it and it was just steadily getting worse, too.
It is undisputed that claimant did not provide notice of any
work-related injury to respondent until November of 2015. The
incident report... reports injury to the bilateral hands and
left forearm on approximately November 4, 2014, that was to
have happened while claimant was "taking torch retaining
cap apart." The incident report is signed by claimant
and Kevin Romanewicz.
Upon report of injury, respondent sent claimant to Concentra,
where he was seen on November 4, 2015, complaining of
bilateral hand issues, after "taking the retaining cap
off torch." Seemingly contradictorily, the record also
states that claimant has been having the problems for about
one year's time, but only had the retaining cap incident
a few days previous.
noted Claimant sought care on his own and had surgery on his
right hand on August 25, 2016. The ALJ found that
Claimant's claim was not time-barred. The ALJ concluded
Claimant sustained a compensable cumulative trauma injury to
his right hand, left hand, and left arm, with a date of
awareness of April 2014 and date of last exposure of April
2016 and awarded him medical treatment.
Employer filed a request for review. After oral argument, the
Commission affirmed the ALJ's decision. The Commission
noted that since 1985, in cumulative trauma cases, "the
law in effect on the date of awareness determined substantive
rights, while the date of last exposure/employment triggered
the limitations period." In support of this statement of
law, the Commission cited American Airlines, Inc. v.
Crabb, 2009 OK 68, ¶ 10, 221 P.3d 1289. Pursuant to
the Administrative Workers' Compensation Act (AWCA),
specifically 85A O.S.Supp. 2016 § 45 (G), "Benefits
for a cumulative trauma injury or occupational disease or
illness shall be determined by the law in effect at the time
the employee knew or reasonably should have known that the
injury, occupational disease or illness was related to work
activity." The Commission noted that AWCA "amended
the statute of limitations for cumulative trauma injuries by
changing the triggering event from the 'date of last
employment' to the 'date of the injury' to
commence the limitation period in Section 69(A)(1), "
A claim for benefits under this act, other than an
occupational disease, shall be barred unless it is filed with
the Commission within one (1) year from the date of the
injury. If during the one-year period following the filing of
the claim the employee receives no weekly benefit
compensation and receives no medical treatment resulting from
the alleged injury, the claim shall be barred thereafter. For
purposes of this section, the date of the injury shall ...