 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Wheaton v. City of Tulsa Fire Dept.9/25/1998
COURT OF APPEALS OF OKLAHOMA
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
WHEATON v. CITY OF TULSA FIRE DEPARTMENT
Court of Appeals of Oklahoma
RELEASE FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS
PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT
HONORABLE RICHARD L. BLANCHARD, JUDGE
REVERSED AND REMANDED WITH DIRECTIONS
Petitioner, Brad Wheaton (Claimant), filed a Form 3-B in the Workers' Compensation Court, alleging he sustained an occupational disease as a result of his employment as a firefighter for the City of Tulsa Fire Department (Employer). He alleged he contracted hepatitis C while he was moving an injured individual who had the disease, and that the date of last exposure to the hazard which caused the disease was July 1, 1997. Employer denied Claimant sustained an accidental injury or suffered an occupational disease arising out of and in the course of his employment.
At the trial, Claimant amended his Form 3-B by pleading alternatively that he suffered an accidental injury arising out of and in the course of his employment based on multiple exposure to a cumulative trauma injury, in addition to the occupational disease. The trial court denied the claim and made the following findings and Conclusions:
That claimant testified to several specific incidents during which he may have contracted the virus. Claimant was, understandably, unable to pinpoint exactly which of these specific incidents actually caused him to contract the disease. The fact that claimant cannot specify which of several specific incidents caused him to contract the virus, should not bar the claimant from recovery under a specific incident theory.
In the case of Morse v. Valley Hope Alcohol & Drug Treatment (unpublished Ct. Of Appeals, Div. No. 3, October 10, 1997) the Court of Appeals sited (sic) the cases of City of Nichols Hills v. Hill, 1975 Ok. ____, 534 P.2d 931, Dyke v. Saint Francis Hospital, Inc., 1993 Ok. 114, 861 P.2d 295 and Enid State School v. Mitchell, 1978 Ok. 122, 590 P.2d 1179, for the proposition that hepatitis does not fit within the definition of an "occupational disease". That Court found that hepatitis is an accidental injury which occurs through a specific exposure to the virus and not a gradual exposure over a period of time.
That for the above reasons claimant's claim based on a cumulative trauma injury or occupational disease theory is denied. Claimant's claim for benefits herein is therefore denied.
For reversal, Claimant contends:
1. The trial court's order is too indefinite for judicial review.
2. The appropriate standard of review to be utilized is the any competent evidence test for correctness and/or de novo review.
3. Claimant's contraction of hepatitis C should have been found compensable based on a cumulative accidental injury theory.
4. Claimant's contraction of hepatitis C should have been classified as an occupational disease.
Claimant contends it is not clear from the order whether the court intended to find he did not sustain a work-related injury in the form of hepatitis C, or whether the court found the injury cannot be pled as a cumulative trauma injury or an occupational disease. Claimant also contends the order does not specifically find he did not sustain a compensable injury, it only found that his injury is neither the result of a cumulative trauma nor an occupational disease. He complains the order i
Page 1 2 3 Oklahoma Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|