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Keco6/30/2005
date of the last trauma. The Polston case, as here, did involve apportionment of liability, however, it was clearly within the context of discussing the statute of limitations that the Court stated the awareness doctrine no longer applied.
The actual crux of Polston is in the Court's statement - "Apportionment is necessary in instances such as the instant matter where the micro-traumatic exposures were cumulating during two successive insurers." As the Supreme Court explained in CR Industries v. Dorsey, 1998 OK 111, 970 P.2d 179, the Polston holding was "that the last injurious exposure does not in itself decide who is liable in a cumulative trauma case." While I recognize this holding is to some degree now obviated by §11(B)(5), Dorsey made clear that it was the necessity of apportionment, not the imposition of a rule to define the specific date of injury for cumulative trauma injuries, that was the true holding in Polston.
Additionally, Polston did not overrule, even implicitly, the Supreme Court's holding in Rankin v. Ford Motor Co., 1996 OK 94, 925 P.2d 39, that the "time of the injury" for establishing a claimant's wage rate to calculate compensation benefits is "the date claimant first became aware of his cumulative trauma injury." That date in Rankin was October 1986, which was after the effective date of the same amendment to §43, the statute of limitations, that the Polston Court and OPCIGA used in their reasoning. The Court in Rankin noted the "last exposure doctrine" was applicable for "statute of limitations purposes", but not for establishing the rate of compensation.
The issue in Rankin required defining a specific point in time to establish a legal right, that is, the wage used to calculate compensation . Similarly, in the present case the question is whether the date of Claimant's awareness of his injuries pertains to preclude application of §11(B)(5). The Workers' Compensation Court here found Claimant's date of awareness to be March 13, 2000. Pursuant to Rankin, the Workers' Compensation Court should have also found that date to be the date of injury.
The date of injury is important here because it is well established in our Workers' Compensation jurisprudence that the law in effect on the date of injury "forms a portion of the contract of employment and determines the substantive rights and obligations of the parties." Cole v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542. Section 11(B)(5) was not in effect on March 13, 2000, Claimant's date of injury, and therefore was inapplicable to determine liability.
Further, despite the majority's holding that it may, it is my view §11(B)(5) may not be applied retroactively in this matter. In the absence of express provision giving a statute retroactive effect, it will be presumed to operate prospectively only. In re Bomgardner, 1985 OK 59, 711 P.2d 92. There is no such expression by the Legislature in §11(B)(5), and, in fact, I believe it was constitutionally precluded from doing so.
The majority bases its constitutional conclusion on a due process notice examination. The real question is whether retroactive application of §11(B)(5) passes constitutional muster under the specific mandates of the Oklahoma Constitution. I believe it does not. In Cole v. Silverado Foods, 78 P.3d at 548, the Supreme Court stated:
The terms of Art. 5 §54, Okl. Const., protect from legislative extinguishment by retroactive enactments "accrued" rights acquired or "proceedings begun" under a repealed or amended statute.
Under the Oklahoma Workers' Compensation Act, a claimant's cause of action for his injuries accrues at the time of his employment-related acciden
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