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Wilkins v. Atlantic Richfield Co.6/21/2002
Mandate Issued: 07/18/2002
__ P.3d __
SUSTAINED
Petitioner, Henry Wilkins (Claimant), seeks review of a Workers' Compensation Court order finding his claim was barred, alternatively, by the limitations period set forth in 85 O.S. 1991 § 43(A) (hereafter § 43(A)) for cumulative trauma injuries and occupational disease. We find Claimant's contention that § 43(A) is unconstitutional in that it affords disparate rules to claimants to be without merit and affirm.
Petitioner worked for Respondent, Atlantic Richfield Co. (Employer), for "close to 12" years, with employment voluntarily ending in November 1992. He filed his Form 3, Employee's First Notice of Accidental Injury and Claim for Compensation, on October 2, 1996, alleging cumulative trauma injury to "lungs, respiratory, joints, glands" due to "chemical exposure". He further alleged the date of last exposure was March 15, 1991. In its Answer, Employer, among other things, asserted statute of limitations as an affirmative defense.
In February 2001, Claimant amended his Form 3 filing with a Form 3-B, Employee's First Notice of Occupational Disease and Claim for Compensation. In this latter filing Claimant alleged injury to his lungs from chemical exposure, with partial loss of a lung. The date of last exposure was omitted, but the " ate of first distinct manifestation" was noted on the form as February 1995.
At trial, Claimant announced the issue was "injury to the lungs and respiratory system due to a (sic) occupational disease, or in the alternative, a cumulative trauma exposure." Employer reiterated its defense of the statute of limitations as to either theory of recovery. The trial court denied the claim, finding it was barred by the statute of limitations " as to either theory of recovery alleged by the claimant." Claimant now seeks review of the trial court's order denying his claim.
A statute of limitations defense is treated as a true affirmative defense, and is not independently reviewed by this Court as a jurisdictional question. Special Indemnity Fund v. Choate, 1993 OK 15, 847 P.2d 796. If a Workers' Compensation Court determination on such a defense is reasonably supported by the evidence and not otherwise contrary to law, it will not be disturbed on review. Id., at 804. Here, Claimant's lone contention is that § 43(A) is, in part, unconstitutional. Thus, by implication, he concedes the evidence supports the Workers' Compensation Court's statute of limitations findings. The question remains whether it is contrary to law.
Section 43(A) provides, in pertinent part:
A. The right to claim compensation under the Workers' Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers' Compensation Court. ... Provided further however, with respect to disease or injury caused by repeated trauma causally connected with employment, a claim may be filed within two (2) years of the date of last trauma or hazardous exposure. Provided further however, in the case of asbestosis, silicosis or exposure to nuclear radiation causally connected with employment, a claim may be filed within two (2) years of the date of last hazardous exposure or within two (2) years from the date said condition first becomes manifest by a symptom or condition from which one learned in medicine could, with reasonable accuracy, diagnose such specific condition, whichever last occurs. ...
Claimant argues here on review that although he alternatively pleaded cumulative trauma injury, his expert evidence establishes he sustained an occupational d
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