Cherokee Nation Entertainment v. Dillion, (2013)

• Decision Date: 02 July 2013
• Docket Number: SC-12-08
• Parties: CHEROKEE NATION ENTERTAINMENT, APPELLANT/RESPONDENT, HUDSON INSURANCE COMPANY, APPELLANT/INSURANCE CARRIER, v. MARY L. DILLION, APPELLEE/CLAIMANT.
• Court: Judicial App Tribunal Court Cherokee Nation

CHEROKEE NATION ENTERTAINMENT, APPELLANT/RESPONDENT, HUDSON INSURANCE COMPANY, APPELLANT/INSURANCE CARRIER, v. MARY L. DILLION, APPELLEE/CLAIMANT.

No. SC-12-08

Supreme Court of the Cherokee Nation

July 2, 2013

APPEAL FROM THE DISTRICT COURT OF THE CHEROKEE NATION TAHLEQUAH, OKLAHOMACV-12-08HONORABLE BART FITE, TRIAL JUDGE

Before: Darrell Dowty, Chief Justice, John Garrett, Justice Angela Jones, Justice, Troy Wayne Poteete, Justice Concurring: Chief Justice Darrell Dowty, Justice Angela Jones, Justice John Garrett Recused: Justice James G Wilcoxen

JUSTICE TROY WAYNE POTEETE

Case History

The Appellant/Claimant, (hereafter Claimant)Mary L. Dillon, was an employee of Appellant, Cherokee Nation Entertainment at the Hard Rock Casino where she did a great deal of repetitive work with her hands.Although she reported this problem to her supervisor she did not at that time impute the pain to her work, and was not referred to the Human Resources Dept.In April 2010the claimant again reported problems with her hands and was referred to the Human Resources Dept.Subsequent testing was undertaken.She worked until May 11th, 2010.

On May 3, 2011 the Arbitrator reviewed the medical reports; heard testimony, and based thereupon determined that the claimant did sustain a cumulative trauma injury while employed by the Casino.The Arbitrator determined that the Claimant suffered injury to both arms and hands.The Arbitrator also determined that the Claimant did not associate her problems with her work until in April 2010, and established that date as the "date of last exposure", for purposes of determining if Claimant notified CNE of her injury in timely fashion.

Appellants appealed to the Cherokee Nation District court contending that Claimants claim should have been denied under Cherokee Nation Workers Compensation Act Section 15, because she failed to report to her supervisor the discomfort she experienced in 2009 as an injury.Appellants contend that that both the Arbitrator and the District Court erroneously determined that the Claimant timely reported her claim.

The District Court reviewed the pleadings and determined that the Arbitrator was correct in the determination that Claimant timely notified her employer of her injury.However, the District Court determined that Claimant only suffered injury to her right arm and hand.

Issue

We are asked to determine whether the Claimant filed timely notice of injury as required by Section 15 of the Cherokee Nation Workers' Compensation Act.Timely notice hinges on the determination of the date of "occurrence" of Claimant's cumulative trauma injury.At issue is whether the date of the "occurrence" of an injury which occurred over a period of time, be set at the date when symptoms first appeared, or at the date the Claimant was last exposed to the trauma causing injury.

Standard of Review

The question before us is one of statutory construction:

How shall the date of a cumulative trauma injury be established under "THE WORKER'S COMPENSATION ACTAS AMENDED"Section 15.

Because the question before us is one of statutory interpretation, this Court reviewed "de novo"the District Court's legal conclusions.Smith v. Election Commission SC-09-03

Concerning factual matters the Cherokee Nation Workers Compensation Act Section 51, provides that his Court review be "confined to the record."

Discussion

The Appellant alleges that the Arbitrator and the District court erred in their application of the Workers Compensation Act section51 notice requirements which states:

No claims for injury or death shall be allowed unless filed with the person so designated for receiving such claims by the employer within thirty (30) days from the date of occurrence.

The claimant's injury is caused by a cumulative trauma.The Workers Compensation Act Section 3(12) defines Cumulative trauma as:

"any injury resulting from employment activities which are repetitive in nature and engaged in over a period of time and which is supported by objective medical evidence".

The statute doesn't guide the determination of an "occurrence" date for cumulative trauma, an injury occasioned over a period of time.

Appellants contend that the Claimant was required to report symptoms she experienced in July 2009 as an injury, and that failure to report those symptoms as an injury at that time constitutes a failure to report an injury in timely fashion under the statute.Appellants contend that said failure...