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Rhea v. Southwest Cupid6/30/1998
Decided: June 9, 1998
Court of Appeals of Oklahoma, Division No. 4
RELEASED FOR PUBLICATION BY THE OKLAHOMA COURT OF CIVIL APPEALS
ORIGINAL PROCEEDING TO REVIEW ORDER OF THE WORKERS' COMPENSATION COURT
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.
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.
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.
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, 1997 OK 133, 940 P.2d 486, the trial court acknowledged that for injuries occurring prior to November 1, 1997, TTD was "not apportionable nor was reimbursement proper between two employers or successive insurance carriers." However, the trial court, in regard to PPD and all other benefits, adopted the "reimbursement and/or apportionment" statement by Claimant's surgeon -- sixty-seven percent liability for SIF and thirty-three percent liability for Connecticut Indemnity -- and accepted "the agreement of the insurance carriers." (Emphasis added.) Based on that agreement, the trial court apportioned future liability between the two insurers and also directed SIF to reimburse Connecticut Indemnity for sixty-seven percent of TTD and reasonable and necessary medical expenses already incurred. Claimant appeals both the quantum of the award and the order directing apportionment between the insurers.
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.
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, , 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, 1991 OK CIV APP 68, , 880 P.2d 408, 411, involves a dispute between insurance carriers and does not address the issue of compensability.
The court in Whitman v. Whitman, 1964 OK 259, , 397 P.2d 664, 667, stated:
One who is not aggrieved by a lower court
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