Rhea v. Southwest Cupid

Rhea v. Southwest Cupid
1998 OK CIV APP 97
969 P.2d 1000
69 OBJ 2571
Case Number: 90587
Decided: 06/09/1998
Mandate Issued: 06/30/1998

RELEASED FOR PUBLICATION BY THE OKLAHOMA COURT OF CIVIL APPEALS

BILLIE RAE RHEA, Petitioner,
vs.
SOUTHWEST CUPID, CONNECTICUT INDEMNITY COMPANY, STATE INSURANCE FUND, and THE WORKERS' COMPENSATION COURT, Respondents.

ORIGINAL PROCEEDING TO REVIEW ORDER OF THE WORKERS' COMPENSATION COURT

Honorable Richard L. Blanchard, Trial Judge Kathryn Burgy J.L. Franks Frasier, Frasier & Hickman Tulsa, Oklahoma For Petitioner
Neil F. Layman Whitten, Layman, MacKenzie, Padgett and Whitten For Respondents Southwest Tulsa, Oklahoma and Connecticut Indemnity
Brad Smith Timothy P. Clancy Stoops and Clancy, P.C. For Respondents Southwest Tulsa, Oklahoma and State Insurance Fund

OPINION

STUBBLEFIELD, P.J.

¶1 A claimant seeks review of an order awarding compensation for permanent partial disability and apportioning liability for medical treatment and compensation between successive insurers of employer. After a review of the record on appeal and applicable law, we affirm in part and reverse in part.

¶2 Claimant Billie Rae Rhea filed her amended Form 3 on April 25, 1997, alleging cumulative trauma resulting in carpal tunnel syndrome in both hands while working for Employer Southwest Cupid. She listed her last date of exposure as January 16, 1997.

¶3 Employer admitted that Claimant suffered an accidental injury, but its insurer, Connecticut Indemnity Company, sought to add the State Insurance Fund (SIF) as the insurer "on date of awareness." The trial court ordered SIF added as a party, specifically reserving Claimant's objections to the addition of the SIF.

¶4 The case was tried on the issue of permanent partial disability and continuing medical maintenance. After hearing, the trial court entered its order finding that Claimant had sustained a work-related injury to both hands, resulting in fifteen percent PPD to the right hand and thirteen percent to the left hand. The trial court calculated and awarded compensation for 48.80 weeks. Citing Red Rock Mental Health v. Roberts,

¶5 Claimant maintains that apportionment among insurance carriers is inappropriate, unsupported by statutory or decisional law and outside the jurisdiction of The Workers' Compensation Court. Claimant asserts that, because the Supreme Court has held that it is the claimant's burden to apportion for injury causation, allowing a court to apportion permanent partial impairment between insurance carriers will place the claimant in the difficult position of trying to apportion injury among a potentially very long list of carriers in instances of cumulative trauma/exposure injuries.

¶6 Indeed, Claimant does carry the burden of showing "causation" or the "burden of establishing the causal connection between injury and employment." American Management Systems, Inc. v. Burns, 1995 OK 58, ¶6, 903 P.2d 288, 291. However, no burden has been placed on Claimant with regard to apportionment of liability among employers and insurers. The case cited by Claimant, Parks v. Kerr Glass,

¶7 The court in Whitman v. Whitman,

[969 P.2d 1002]

See

¶8 Claimant next raises a proposition of error, which we find has more merit. She maintains that the trial court erred in applying 85 O.S. Supp. 1996 § 22(3)(b), separately to each award for injury to her hands where both injuries arose out of the same injury-producing cumulative trauma, accrued on the same day and were adjudicated at the same time.

¶9 First, we reject Connecticut Indemnity's assertion that the any-competent-evidence test is applicable to this issue. The dispute is not one of fact because Claimant does not dispute the degree of impairment found by the trial court. However, she maintains that the trial court incorrectly applied the statute regarding calculation of an award. The court in Oklahoma Petroleum Workers' Compensation Association v. Mid-Continent Casualty Co.,

¶10 Furthermore, we find erroneous SIF's reliance on Bras v. Gibson,

¶11 More appropriate law is that stated in United Engines, Inc. v. McConnell Construction, Inc.,

¶12 Claimant maintains that the trial court incorrectly applied section 22(3)(b), by treating each hand injury as a separate and distinct injury and reducing the compensation for each injury pursuant to the section.

With respect to injuries occurring after [November 4, 1994], in case of disability, partial in character but permanent in quality, the compensation shall be seventy percent (70%) of the employee's average weekly wages, and shall be paid to the employee for the period prescribed by the following schedule:

(1) For each percent of the first nine percent (9%) of disability, eighty percent (80%) of the number of weeks of compensation provided by law prior to [November 4, 1994];

(2) For each percent of the next eleven percent (11%) of disability, the identical number of weeks of compensation provided by law prior to [November 4, 1994];

(3) For each percent of the next thirty percent (30%) of disability, one hundred twenty percent (120%) of the number of weeks of compensation provided by law prior to [November 4, 1994]; and

(4) For each remaining percent of disability, the identical number of weeks of compensation provided by law prior to [November 4, 1994].

¶13 The issue of applying this section separately to individual injuries, accruing on the same day, has been addressed by the courts of this state. In the case of Stice v. Douglas,

¶14 In this case, just as in Stice, Claimant's identical injury-causing tasks resulted in cumulative trauma, which caused injury to more than one body part -- both hands. In such an instance, the trial court must consider the awards together for purposes of application of section 22(3)(b). In order to properly apply the law to ascertain the total weeks of compensation benefits awardable to Claimant, subsections (3)(b)(1), (2) and (3) must be applied to the total percentage of impairment calculated for both hands -- twenty-eight percent impairment. Therefore, the calculation results in (1) benefits for the first nine percent of impairment calculated at 80 percent -- (.09 x 200 x 80%) or 14.4 weeks; (2) benefits for the next eleven percent calculated at 100 percent -- (.11 x 200) or 22 weeks; and, (3) benefits for the remaining eight percent calculated at 120 percent -- (.08 x 200 x 120%) or 19.2 weeks. Thus, based on the correct application of section 22(3)(b), the total benefit award to Claimant for PPD to both hands should have been 55.6 weeks.

¶15 The trial court's application of section 22(3)(b)(1) and (2) separately with regard to the impairment of each hand is clearly contrary to law and must be reversed. The cause is remanded to the trial court with instructions to enter an award consistent with the holding of this court.

ORDER AFFIRMED IN PART AND REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

REIF, J., and RAPP, J., concur.

FOOTNOTES

1 While the calculations of the trial court are not set forth in its order, its award of 48.80 weeks compensation is obviously the result of applying section 22(3)(b) to each separate award. Compensation for loss of a hand (a scheduled member) is 200 weeks. Section 22(3)(a). Thus, the trial court's determination of section 22(3)(b) compensation was -- [(9% x 200 x .80) + (6% x 200)] + [(9% x 200 x .80) + (4% x 200)] = [14.4 weeks + 12 weeks] + [14.4 weeks + 8 weeks] = 48.80 weeks.

2 Likewise, this court in McCarter v. Rainbow Baking Co., No. 90,005, cert. denied (June 3, 1998), addressed the same issue presented herein and concluded that the Stice court had correctly interpreted the statutory language of section 22(3)(b).