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Rolled Alloys, Inc. v. Wilson

Court of Appeals of Oklahoma, Division IV

December 22, 2017

ROLLED ALLOYS, INC., and TRAVELERS PROPERTY CASUALTY CO. OF AMERICA, Petitioners,
v.
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

          Mia C. Rops, DAVID KLOSTERBOER & ASSOCIATES, Oklahoma City, Oklahoma, for Petitioner

          Esther M. Sanders, SANDERS AND ASSOCIATES, P.C., Tulsa, Oklahoma and Bob Burke, Oklahoma City, Oklahoma, for Respondent

          JANE P. WISEMAN, JUDGE

         ¶1 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.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 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.

         ¶3 At trial, Employer states it was asserting the statutory defenses found in 85A O.S. §§ 67 and 69(A)(1). [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 [2].

         ¶4 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 shoulder.

         ¶5 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.

         ¶6 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.

         The ALJ found:

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.

         The ALJ 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.

         ¶7 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), " which provides:

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 ...

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