Rankin v. Ford Motor Co. , 925 P.2d 39 ( 1996 )

OPINION

WATT, Justice.

Claimant, Rankin, suffered from cumulative trauma to his hands while working for respondent Ford Motor Company. The Workers’ Compensation Court, Honorable Kimberly E. West, trial judge, held that the date of RanMii’s injury for the purpose of determining Rankin’s wage rate was the date Rankin first became aware of his injury, in October 1986. The Court of Appeals, Division 1, reversed the trial court on the ground that the date of Rankin’s injury was the date of his last exposure to the conditions causing the trauma, which was March 1, 1993. Ford sought certiorari, which we granted on April 15,1996.

The parties disagree over whether the date of first awareness of injury or the last exposure to the hazard is used to determine the wage rate because the wage rates used to set disability benefits under 85 O.S. § 21 have risen over time. Where, as here, significant time has passed between first awareness of an injury and last exposure to the hazard that caused it, disability benefits will be higher if the last exposure test is used to determine the “time of the injury” under 85 O.S. § 21.

In its opinion in this appeal, the Court of Appeals relied heavily on another Court of Appeals opinion, Penny v. Titus, National Union Fire Insurance Company, 909 P.2d 150 (Okla.App.1995). In Penny, a two-to-one opinion, the Court of Appeals majority concluded that when the legislature abrogated the awareness doctrine for statute of limitations purposes in its 1985 amendment to 85 O.S. § 43.A it intended to abrogate it for all purposes. Since the 1985 amendment, 85 O.S. § 43.A has provided in material part as follows:

... 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....

On the basis of this language, the Penny majority held that the awareness doctrine could not be used to determine the “time of the injury” under 85 O.S.1991 § 21. The Penny majority also held that, because of the 1985 amendment to 85 O.S. § 43.A, our opinion in Peabody Gallon Corporation v. Workman, 643 P.2d 312, 316 (Okla.1982), had “lost its symmetry.” In Peabody we held that the date for establishing the date of injury in a cumulative trauma case is the date of claimant’s first awareness of injury.

We disagree with the Penny majority’s conclusions, and hold that the “time of injury” as that term is used in 85 O.S.1991 § 21 is the date on which claimant first becomes aware of an injury. For the reasons discussed in the balance of this opinion, the Penny majority opinion is repudiated and its reasoning expressly disapproved.

In two earlier Court of Appeals opinions, Mid-Continent Casualty Co. v. Bradley, 855 P.2d 145 (Okla.App.1993), and Utica Square Salon of Beauty v. Barron, 595 P.2d 459 (Okla.App.1979), the Court of Appeals concluded that accidental injuries are analogous to occupational disease cases. We disagree, and expressly reject the reasoning of Mid-Continent and Utica Square.

Rankin’s disability was the result of an accidental injury caused by a series of small injuries called “micro-traumas.” These small injuries finally resulted in a discemable injury to Rankin. “Occupational disease” is limited by statute to “only that disease or illness which is due to causes and conditions characteristic of or peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease.” 85 O.S.1993 Supp. § 3.10; Peabody Gallon Corp. v. Workman, 643 P.2d 312, 315 (Okla.1982). Section 3.10 was amended in 1977 to add the foregoing language. In Peabody Gallon we held that “there is no indication in the 1977 amendments that the purpose of the revised occupational disease definition was to abolish the distinction between the concepts of occupational disease and accidental injury.” Id. at 315.

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.” [Emphasis added.] 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, In Parks v. Flint and occupational disease. Steel Corp., 755 P.2d 680 (Okla.1988), Flint Steel relied on The Court of Appeals’ Utica Square opinion in support of its argument that the last exposure doctrine applied to a micro trauma ease, which had resulted in the claimant’s hearing loss. We rejected Flint’s argument and the Utica Square opinion, saying that Utica Square was “unpersuasive, distinguishable — and not binding on this court.” We disapprove of and expressly repudiate the statements of the Court of Appeals in Mid-Continent and Utica Square that cumulative trauma injuries are analogous to occupational diseases and that the last exposure doctrine applies in cumulative trauma cases. The Workers’ Compensation Court correctly held that the claimant’s wage rate was that which was in effect on the date claimant first became aware of his cumulative trauma injury because that was “the time of the injury” under 85 O.S.1991 § 21.

There is nothing in either this Court’s opinions or the Oklahoma Statutes to support Rankin’s contention that the “time of the injury” in a cumulative trauma case should be other than the date when claimant first becomes aware of an injury. Title 85 O.S. Supp.1994 § 43.A describes “repeated trauma” injuries as injuries separate from the occupational injuries, “asbestosis, silicosis or exposure to nuclear radiation.” Further, 85 O.S. Supp. 1994 § 3.10 expressly defines “occupational injury” as a specific type of injury caused by hazards peculiar to the claimant’s occupation. We have repeatedly held that occupational disease, and cumulative trauma injuries, raise separate issues. See Peabody Galion, and Parks v. Flint Steel Corporation, 755 P.2d 680 (Okla.1988), both of which stand for the proposition that the last exposure rule applicable in occupational disease cases, does not apply to cumulative trauma injuries.

The dissenter in Penny was correct, we believe, when he said that he did not “believe we can or should extend the legislative act [43 O.S. Supp.1994 § 43.A] changing the limitations period for cumulative trauma injuries ... to also change the date upon which temporary total disability benefits are calculated.” The dissent concluded that the majority’s holding “constitutes in my opinion, judicial legislation.” 909 P.2d at 155.

We held in Peabody Galion that “the determinative date in ascertaining a disability — and for establishing the applicable rate of compensation — ... in cumulative effect trauma cases ... is the date the manifested condition first becomes known or should be known as job related.” 643 P.2d at 316. Peabody Galion determines the outcome of this case. No legislation passed since Peabody Galion was decided indicates that the legislature disagrees with the Peabody Gal-ion rule. The trial court, therefore, properly decided that October 1986, when Rankin first became aware of his condition, was the date to use in setting the amount of RanMn’s temporary total disability payments.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; ORDER OF THE WORKERS’ COMPENSATION COURT SUSTAINED.

KAUGER, V.C.J., and HODGES, LAVENDER, SIMMS, HARGRAVE and SUMMERS, JJ., concur.