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Keco6/30/2005
than when it assumed the risk.
We hold the trial court did not err as matter of fact or law in holding Medmarc solely liable for Claimant's cumulative trauma injury to his left thumb. The order of the trial court is therefore SUSTAINED.
BUETTNER, C.J., concurs; and HANSEN, J., dissents with separate opinion.
CAROL M. HANSEN, Judge, dissenting
I must respectfully dissent from that part of the majority's opinion which holds 85 O.S. §11(B)(5) was correctly applied. In my view, the Workers' Compensation Court incorrectly found §11(B)(5) applicable. That subsection was not the law at the definitive time here, that is, March 13, 2000, the date on which the Workers' Compensation Court found Claimant first became aware his injuries were employment related.
The majority's rationale for holding §11(B)(5) applicable, and imposing the sole burden of liability on Medmarc, is that Medmarc was the Employer's insurer during a period of more than ninety days when Claimant was last injuriously exposed, and because cumulative trauma injuries are now governed by the date of the last trauma or hazardous exposure, rather than the "awareness doctrine", citing Celestica, Inc., v. Hines, 2004 OK CIV APP 22, 86 P.3d 1095.
In my view, Hines is both distinguishable on the facts and based on a faulty premise. As acknowledged by the Hines Court, the date of the claimant's awareness there was after the effective date of §11(B)(5). Thus, applying the awareness doctrine would not have changed the outcome under the facts in that case. Secondly, and possibly because of the previous conclusion, the Hines Court did not fully examine the impropriety of giving §11(B)(5) retroactive effect. For the following reasons, I would hold that §11(B)(5) may not be applied where, as here, the claimant's date of awareness predates the effective date of the statute.
My analysis of this question begins with Southwest United Industries v. Polston, 1998 OK 78, 964 P.2d 210. While Polston, at 212, does contain the statement that cumulative trauma accidents are "now governed by the date of the last trauma and the awareness test no longer applies", I do not believe, when examined in context, and in conjunction with other Oklahoma Supreme Court opinions, Polston would be controlling under facts as presented here.
In Polston, which was decided before the effective date of §11(B)(5), the Workers' Compensation Court apportioned liability between two successive insurers. The only issue presented there was "whether apportionment of liability is proper when a cumulative trauma injury occurs during employment with a single employer who has had two successive insurers." In its consideration of that question, the Supreme Court expressly overruled Oklahoma Petroleum Workers' Compensation Association v. Mid-Continent Casualty Co., 1994 OK CIV APP 107, 887 P.2d 335. In this latter case, the Court of Civil Appeals had held the awareness test should be applied to impose sole liability and apportionment was not proper. It was in overruling Mid-Continent that the Supreme Court stated the awareness doctrine no longer applied.
In setting forth its reasoning, the Polston Court explained that " nder this [awareness] doctrine the statute of limitation begins to run against the claimant at the time when the claimant becomes aware of an injury." The Court then set out 85 O.S. Supp. 1994 §43, the limitation section of the Workers' Compensation Act, which provides that a cumulative trauma claimant has two years from the date of last trauma or hazardous exposure to file a claim. It was at this point the Court stated cumulative trauma accidents were governed by the
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