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Celestica Inc. v. Hines12/18/2003
ess is the date of injury for purposes of setting the compensation rate in cumulative trauma cases. Id. at 4-5. The court then offered the following analysis of the statutory distinction between cumulative trauma and occupational disease:
The significance of the distinction between accidental injury and occupational disease is that under 85 O.S.1991 §11.4, 'where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease . . . shall alone be liable therefore, without right of contribution from any prior employer.' . . . This requirement is ordinarily referred to as the 'last exposure doctrine.'
The last exposure doctrine applies only in occupational disease cases, not in cumulative trauma cases with regard to wage rate disputes. For statute of limitations purposes, the time to file a claim of this type starts with the date of last exposure. In this case, however, the statute of limitations is not an issue.
Both the legislature and this court have drawn a clear distinction between cumulative trauma cases, which are accidental injuries, . . . and occupational disease.
Id. at 7-9. The court went on to conclude that the amendment of the statute of limitations for cumulative trauma cases to the date of last exposure did not amend the date of injury for cumulative trauma cases to the date of last exposure simply because §11(4) provided for the last exposure doctrine in occupational disease cases. Id. at 11.
Since Kerr Glass and Rankin, the Legislature has amended §11 by adding subsection 11(B)(5), which is substantially similar to the prior §11(4), except that §11(B)(5) expressly applies the last exposure doctrine to cumulative trauma cases, while §11(B)(4) remains the statute addressing the last exposure doctrine regarding occupational disease. The only difference is that a claimant must have worked for the last employer for 90 days before the last employer will be held solely liable for the compensation in a cumulative trauma case. The distinction made in Kerr Glass and Rankin, followed by the amendment to §11, requires our conclusion that the Legislature intended to make the last exposure doctrine apply to cumulative trauma cases, both for determination of the date of injury and for the determination of the liable employer in cases of multiple employers. For this reason, we disagree with Celestica's contention that the application of §11(B)(5) in this case resulted in an impermissible retroactive effect. Additionally, even if we were to conclude that the awareness doctrine continued to determine the date of injury, despite the amendment to §11, the Workers' Compensation Court found that Hines became aware of her work-related injury November 1, 2001, which was after the effective date of §11(B)(5). We therefore also reject Celestica's argument that the compensation award must be apportioned using the law in effect at the time of injury.
Celestica's remaining argument is that §11(B)(5) violates its constitutional due process rights to notice. We first note that Celestica took over the plant after the effective date of the statute and was charged with notice of the law in effect at that time. Additionally, Celestica has failed to cite any authority to support its argument that the last exposure rule is unconstitutional. Indeed, the last exposure doctrine, in occupational disease cases, has long been upheld. See Parks v. Flint Steel Corp., 1988 OK 64, 755 P.2d 680, which explained:
In Oklahoma, the last injurious exposure rule is designed to apply in situations where an employee contracts an "occupational disease," and then
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