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Celestica Inc. v. Hines12/18/2003
ed to the trauma during a period of at least ninety (90) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer, shall alone be liable therefor, without right of contribution from any prior employer or insurance carrier. If there is no employer in whose employment the employee was last injuriously exposed to the trauma for a period of at least ninety (90) days, then the last employer in whose employment the employee was last injuriously exposed to the trauma and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, with right to contribution from any prior employer or insurance carrier.
Subsection 11(B)(5) became effective October 23, 2001. Hines began working for Celestica December 1, 2001, after the effective date of the statute.
Before the enactment of subsection 11(B)(5), in cumulative trauma cases involving multiple employers, the Workers' Compensation Court apportioned the compensation award among the employers. See Kerr Glass Co. v. Wilson, 1994 OK CIV APP 69, 880 P.2d 414. In Kerr Glass, the claimant was employed by Kerr Glass for over nine years until Ball Incon Glass took over the plant. Six months later, the claimant sought workers' compensation benefits for cumulative trauma injuries. The Workers' Compensation Court apportioned the compensation award between Kerr Glass (95%) and Ball Incon Glass (5%). On appeal, Kerr Glass argued that Ball Incon should be held solely liable based on the last injurious exposure rule. Kerr Glass asserted that the Workers' Compensation Act previously had been amended to provide that the statute of limitations for cumulative trauma injuries began to run on the date of last injurious exposure, citing 85 O.S.1991 §43(A). Kerr Glass also asserted that 85 O.S.1991 §11(4) provided that in cases of occupational disease, the employer in whose employment the employee was last injuriously exposed was solely liable, without right of apportionment. Kerr Glass argued that because both statutes used the last injurious exposure as the relevant date, then compensation for cumulative trauma cases should not be apportioned, and that instead, the employer in whose employment the claimant was last injuriously exposed should be solely liable.
The Court of Civil Appeals responded, however, that 85 O.S.1991 §11(4) addressed only occupational disease, which it distinguished from cumulative trauma. Id. at 14. The court recognized its earlier holdings which rejected application of the last exposure rule to cumulative trauma cases and instead apportioned liability between multiple employers. Id. at 13. In Kerr Glass, the court opined "(i)f the Legislature had intended §11(4) to apply to cumulative trauma injuries, it would have so provided by expressly amending that section." Id. at 16. The court sustained the order apportioning the compensation award between the two employers. Id. at 18.
The Oklahoma Supreme Court reiterated the distinction between cumulative trauma and occupational disease in Rankin v. Ford Motor Co., 1996 OK 94, 925 P.2d 39. Celestica urges in this proceeding that Rankin established that the date of injury in cumulative trauma cases is the date of awareness. In Rankin, the claimant worked for only one employer, but the parties disputed whether the date of awareness or date of last exposure was the "time of injury" and therefore the date on which compensation rates were calculated. The court noted that the Court of Civil Appeals had previously analogized cumulative trauma cases to occupational disease cases, but in Rankin, the court rejected that analogy and held that the date of awaren
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