Anderson Mechanical8/4/2005
Mandate Issued: 08/31/2005
PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT
SUSTAINED
Petitioners Anderson Mechanical, Inc. (Employer) and Bituminous Casualty (Insurer, or collectively, Petitioners) seek review of an order of a three-judge panel of the Workers' Compensation Court affirming the trial court's order(s) dismissing Respondent Massachusetts Bay Insurance Co. (MBI), and denying Employer's motion to add a previous insurer as a party-respondent. Having reviewed the record, however, we discern no error. Accordingly, the order of the three-judge panel is sustained.
Respondent David Spiegel (Claimant) worked for Employer for twenty-four years. Employer obtained workers' compensation insurance from MBI for the period January 1, 2000 to January 1, 2002, and from Arch Insurance Company (Arch) for the period January 1, 2002 to January 1, 2003. Bituminous became the workers' compensation insurer January 1, 2003.
By Form 3 filed March 3, 2003, Claimant asserted repetitive trauma injuries to his left shoulder, hands and arms while working for Employer, date of last exposure, February 28, 2003. In April 2003, Petitioners filed a Form 13, Motion to Join Additional Parties, seeking to join MBI and Arch as party-respondents, and MBI entered an appearance in May 2003. In July 2003, Petitioners filed another Form 13, Motion to Join Additional Parties, seeking to compel joinder of Arch, and Arch entered an appearance in August 2003.
In September 2003, MBI filed a Form 13, Motion to Dismiss, citing 85 O.S. §11(B)(5). Following a hearing in November 2003, the trial court found MBI was not a "proper party," dismissed MBI from the proceedings, and denied Insurer's motion to add Arch by order filed in December 2003. Petitioners appealed, and a three-judge panel unanimously affirmed.
In this review proceeding, Petitioners assert that Claimant became aware of his job-related injuries in May 2000 when he first received medical treatment for those injuries, and that the law in effect at the time of Claimant's awareness of his job-related injuries controls the rights and obligations of the parties. See, Cole v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542; CR Industries v. Dorsey, 1998 OK 111, 970 P.2d 179; Southwest United Industries v. Polston, 1998 OK 78, 964 P.2d 210; Rankin v. Ford Motor Co., 1996 OK 94, 925 P.2d 39. So, say Petitioners, because Claimant's date of awareness pre-dates the effective date of §11(B)(5), that section cannot be applied retroactively to justify dismissal of MBI and denial of Arch's joinder.
Prior to enactment of §11(B)(5), the Court of Civil Appeals recognized that, where a claimant suffered cumulative trauma injuries in successive employments, or while insured by successive insurers, apportionment of liability for the claimant's benefits was proper. See, Ball-Incon Glass v. Adams, 1995 OK CIV APP 16, 894 P.2d 439; Kerr Glass Co. v. Wilson, 1994 OK CIV APP 69, 880 P.2d 414; Lummus Const. v. Vancourt, 1992 OK CIV APP 113, 838 P.2d 43; Pauley v. Lummus Const., 1992 OK CIV APP 96, 836 P.2d 692. However, effective October 23, 2001, the Oklahoma Legislature amended 85 O.S. §11, and subsection (B)(5) now provides:
Where compensation is payable for an injury resulting from cumulative trauma, the last employer in whose employment the employee was last injuriously exposed 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 to contribution from any prior employer or insuranc
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