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Keco6/30/2005
Mandate Issued: 07/28/2005
__ P.3d __
SUSTAINED
Petitioners Keco, Inc. (Employer) and Medmarc Insurance Company (Medmarc, or collectively, Petitioners) seek review of orders of the trial court holding Medmarc solely responsible for cumulative trauma injuries to the left hand/thumb of Respondent Carroll Hayward (Claimant) and dismissing Respondent Villanova Insurance Company (Villanova), predecessor in interest to the Oklahoma Property and Casualty Insurance Guaranty Association (OPCIGA). In this proceeding, Petitioners assert the trial court erred as a matter of both fact and law in dismissing Villanova and holding Medmarc solely liable for Claimant's injuries under 85 O.S. §11(B)(5). Having reviewed the record, however, we discern no error of law or fact. Accordingly, the order of the trial court is sustained.
Claimant worked for Employer from August 1971 through August 2002. By joint petition in September 1997, Claimant obtained an award of benefits for an injury to his right hand while working for Employer.
In October 2003, Claimant commenced an action against Employer to recover benefits for a cumulative trauma injury to his left hand. As respondents, Claimant named Employer, Villanova and Medmarc; Villanova (whose liabilities were subsequently assumed by OPCIGA) was Employer's workers' compensation insurer from March 2000 through March 1, 2002, and Medmarc was Employer's insurer from March 1, 2002 to March 1, 2003.
At trial, Claimant asserted that he did not know that the injury to his left hand/thumb was job -related until examined in April 2000, and the report of the examining physician referred to March 13, 2000 as the date of injury. Claimant testified that he was last-hazardously exposed to the cumulative-trauma-dealing conditions of his employment with Employer on August 29, 2002 when he resigned. Claimant also testified that he submitted to surgery on his left thumb in July 2003; that he was released from medical treatment of his left thumb in October 2003; and that, due to the injury and treatment of his left thumb, he did not work from August 2002 until January 2004 when he accepted other employment not requiring the painful use of his left thumb.
Claimant admitted that, at the time of the joint petition settlement in September 1997, he was experiencing some left thumb pain. Claimant, at one point, asserted that the 1997 joint petition covered only the injury to his right hand, but later admitted that, on the joint petition record, he acknowledged the award was to cover any injury to either hand.
Claimant offered, and the trial court admitted, medical evidence in support of his claim. Medmarc and OPCIGA offered the records of the joint petition settlement, arguing the 1997 settlement cut off any right to benefits for left hand injury absent proof of a subsequent aggravation of the left hand injury, but that the parties had offered no testimony or evidence of such an aggravation.
Medmarc also offered medical evidence argued to show Claimant's awareness of the injury to his left thumb at the time of settlement in 1997, as to render OPCIGA solely liable for Claimant's benefits which had then accrued during Villanova's period of workers' compensation insurance coverage. Alternatively, Medmarc demanded apportionment of liability between it and OPCIGA, arguing that, because Claimant was aware of his left hand injury prior to enactment of §11(b)(5) in 2001, his right to benefits then became fixed, and that the law in effect at the time permitted apportionment.
OPCIGA offered medical evidence, and argued the testimony and evidence clearly demonstrated Claiman
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