AMF Tubescope Co. v. Hatchel, 47557

• Decision Date: 03 February 1976
• Docket Number: No. 47557,47557
• Citation: 547 P.2d 374,1976 OK 14
• Parties: AMF TUBESCOPE COMPANY and Liberty Mutual Insurance Company, Petitioners, v. Don Edwin HATCHEL et al., Respondents.
• Court: Oklahoma Supreme Court

Page 374

547 P.2d 374

AMF TUBESCOPE COMPANY and Liberty Mutual Insurance Company Petitioners, v. Don Edwin HATCHEL et al., Respondents.

No. 47557.

Supreme Court of Oklahoma.

Feb. 3, 1976.

Crowe & Dasovich by W. Jeffrey Dasovich, Oklahoma City, for petitioners.

James E. Briscoe, Luther, for respondent, Don Edwin Hatchel.

Fenton, Fenton, Smith, Reneau & Moon by Milton R. Moon, Oklahoma City, for respondent, Hartford Acc. and Indem. Co. and/or Twin City Fire Ins. Co.

Wheeler, Parsons, Boone & Carpenter, Oklahoma City, for respondent, Maryland Cas. Co.

BARNES, Justice:

Respondent, Don Edwin Hatchel (hereafter Claimant), was awarded compensation for permanent partial disability to body as a whole from silicosis contracted during employment with AMF Tubescope Company (hereafter AMF). This award, affirmed by State Industrial Court en banc, is presented for review by Petitioners (herein the Respondents).

Claimant was employed by AMF August 16, 1966, and continued until terminating for better employment April 11, 1971. During this period AMF carried the following insurance coverage: Maryland Casualty Company (hereafter Maryland) from 1966 to April 1, 1968; Liberty Mutual Insurance Company (hereafter Liberty) from April 1, 1968, to April 1, 1971; Hartford Accident and Indemnity Company (hereafter Hartford) from April 1, 1971, through April 11, 1971.

Claim for compensation was filed February 28, 1973. Amended claim, filed May 3, 1973, alleged injury and disability from occupational disease contracted during covered employment, and named each of the above as insurance carriers. The amended claim alleged first manifestation of disease in September, 1972, subsequent diagnosis of difficulty as silicosis on December 17, 1972, and oral notice of condition to Respondent's plant manager on December 22, 1972. Claim was filed February 28, 1973, for disability due to occupational disease.

Matters relating to employment, nature of Claimant's work and conditions under which performed, exposure to silicon dioxide during employment, and contraction of silicosis as a result of exposure were established by evidence.

After claim was filed, each insurer eventually answered out of time without leave, denying allegations of claim and alleging Claimant's failure to give notice had resulted in prejudice. Maryland and Liberty also alleged the claim was barred by limitations. Hartford presented no issue of statute of limitations until the initial hearing upon the claim. At that time Claimant objected to Respondents' asserting defense of limitations, by reason of failure to comply with Rule 10, State Industrial Court, which requires affirmative defenses to be raised by answer filed within ten days after claim is filed.

The Court withheld ruling upon Claimant's objection and proceeded with the hearing. All Respondents raised defenses of lack of notice and bar of statute of limitations. Ruling was reserved upon demurrers based upon limitations, interposed to Claimant's evidence. The Court sua sponte granted continuance to afford Claimant opportunity to secure further evidence to sustain the burden of proof.

At subsequent hearing the Court ruled the statute of limitations, 85 O.S.1971 § 43, ¹ upon which Respondents relied, was inapplicable to this claim, which was governed by § 24 ² of the Act. The Court found the issue concerning which insurer was responsible was determinable under 85 O.S.1971 § 11(3), ³ thus Hartford was the responsible carrier, and others were dismissed. Thereafter, Hartford defended the claim, reserving exception to ruling as to statute of limitations.

Subsequently, the Court filed an order holding the previous adjudication dismissing other insurers was premature, and Liberty was a proper party. Liberty appealed to State Industrial Court en banc upon basis claim was barred by statute of limitations. The appeal was dismissed because not a final order, and the cause returned for further hearing with both Hartford and Liberty defending the claim.

The evidence showed, beginning in 1966, that Claimant worked about a year as a sandblaster cleaning oil field pipe, and thereafter operated a collar machine which sometimes required sandblasting by hand. The work process involved use of an abrasive (Flint #7) containing silicon dioxide particles. Claimant left the collar machine and returned to sandblasting for about six months, then became a lead man readying pipe in an outside yard, which also entailed some sandblasting. Claimant performed the job some three years and was intermittently engaged in sandblasting on breaks and during lunch hours. During the last thirty days' employment, Claimant did no sandblasting, although he was 'around' the area where sandblasting occurred. The trial court found that the last exposure was March 11, 1971. We agree that the testimony was not sufficient to establish exposure during the last thirty days of his employment.

Employment terminated April 11, 1971, and Claimant then began working for Ralston-Purina Company, unloading loose grain with a machine. In July Claimant's chest problems commenced. After a diagnosis and treatment for pneumonia by the family doctor, Claimant was referred to Dr. H.P.R., primarily a heart specialist. This physician saw Claimant December 1, 1971, and secured history of Claimant's work as a sandblaster. Chest X-rays demonstrated infiltrate and possibly fluid in left chest, and indicated need for hospitalization and diagnostic procedures.

A pulmonary specialist (Dr. R.D.) conducted numerous tests and determined blood gases showed marked reduction of blood oxygen. A specialist (Dr. N.Z.) in thoracic surgery was called in to perform an open chest biopsy. Dr. H.P.R. testified the tissue biopsy report provided diagnosis of pneumoconiosis, a class name which includes silicosis. This disease, contracted from inhalation of silicon dust, causes fibrous tissue reaction in the lungs. This interferes with diffusion of oxygen into capillaries, causes decrease in blood oxygen level and arrests arterial oxygen. Scar tissue is formed, and the condition is irreversible.

This, and other medical evidence mentioned later, was introduced by deposition testimony of Dr. H.P.R., who stated Claimant was totally disabled for performance of ordinary manual labor. Claimant was informed of medical diagnosis made on December 17, 1972, and on December 22, 1972, Claimant called and advised Respondent's plant manager he had contracted silicosis. No medical treatment was offered, and Respondents paid no temporary total compensation.

Respondents introduced medical evidence from an examining physician (Dr. C.D.P.), who testified medical findings were appropriate and compatible with diagnosis of simple silicosis. Claimant was considered moderately disabled for any physical exercise, without any prediction as to Claimant's prognosis. A Supplemental Report evaluated Claimant as having 30% Permanent partial disability to body as a whole.

The following matters were adjudicated in an order filed April 1, 1974. Claim for compensation for disability from occupational disease was filed February 28, 1973, and Respondents' answers had been filed out of time in violation of State Industrial Court Rule 10. Claimant's last exposure was March 11, 1971, disability commenced when Claimant learned nature of injury on December 17, 1972, and Respondents were given notice December 22, 1972. Claim then was filed within three months following diagnosis of disablement from occupational disease. Maryland was dismissed from responsibility because coverage ceased April 1, 1968, and Hartford was dismissed because coverage was not assumed until April 1, 1971, and there was no exposure from that time until termination of employment. Liberty assumed coverage in 1968 and continued through April 1, 1971, and therefore was the sole insurer under provisions of 85 O.S.1971 § 11(3), supra.

The Court determined Claimant had contracted occupational disease from exposure to silicon dioxide dust. Respondents had notice from Claimant, who filed written notice and claim for compensation for occupational disease within three months prescribed by § 24 of the Act, supra. Compensation was awarded for temporary total disability (53 weeks and 2 days), expenses of necessary medical treatment, and 85% Permanent partial disability to body as a whole caused by occupational disease contracted during covered employment with Respondents. Other findings not germane to issues reviewed are omitted. Respondents seek vacation of this order, affirmed by State Industrial Court en banc, upon basis of contentions discussed hereafter.

In view of matters hereafter mentioned, it is unnecessary to consider the issue relating to the trial court's determination that the affirmative defense of limitations had not been presented, as required by State Industrial Court Rule 10. In this connection, however, attention is directed to recent decisions in Wood v. Osteopathic Hospital (Okl.), 512 P.2d 135, and Cook v. Clinkenbeard (Okl.), 524 P.2d 27.

Respondents' principal contention urges the claim was barred by the one-year statute of limitations specified by 85 O.S.1971 § 43, supra, as construed in Parker v. Blackwell Zinc Co. (Okl.1958), 325 P.2d 958. Claimant contended that § 43 did not apply where, as here, the claimed injury was an occupational disease, and in that instance § 24 was both a notice statute and a statute of limitations. Respondents' argument evolves from conclusions stated in Parker, supra.

We must examine the legislative history of these Acts to determine the correctness of the Parker opinion. Section 43 was twice amended by the Legislature in 1953. The first amendment provided for recovery of compensation for specified occupational diseases, and allowed claims to be filed within three years following last hazardous exposure. However, a second amendment increased benefits under § 22, and amended § 43 by re-adoption of the 1951 statute...