City of Edmond v. Vernon

• Decision Date: 22 December 2008
• Docket Number: No. 105,820.,105,820.
• Citation: 2009 OK CIV APP 36,210 P.3d 860
• Parties: CITY OF EDMOND, Own Risk # 14514, Petitioner/Appellant, v. Timothy K. VERNON and The Workers' Compensation Court, Respondents/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

210 P.3d 860

2009 OK CIV APP 36

CITY OF EDMOND, Own Risk # 14514, Petitioner/Appellant, v. Timothy K. VERNON and The Workers' Compensation Court, Respondents/Appellees.

No. 105,820. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

Court of Civil Appeals of Oklahoma, Division No. 4.

December 22, 2008.

Certiorari Denied March 30, 2009.

Proceeding to Review an Order of a Three-Judge Panel of the Workers' Compensation Court; Honorable Gene Prigmore, Trial Judge.

SUSTAINED

Charles G. Braun, Hornbeek Vitali & Braun, P.L.L.C., Oklahoma City, OK, for Petitioner/Appellant.

Jeffrey M. Cooper, Homsey, Cooper, Hill & Associates, Oklahoma City, OK, for Respondent/Appellee.

DOUG GABBARD II, Presiding Judge.

¶ 1 Petitioner, City of Edmond, seeks review of a workers' compensation court order awarding benefits to Respondent, Timothy K. Vernon (Claimant). City challenges the constitutionality of 11 O.S. Supp.2008 § 49-110, which creates a presumption that municipal firefighters who are disabled by cancer incurred the disease while performing job-related duties. We find the statute constitutional and sustain the order.

FACTS

¶ 2 Claimant is a firefighter who has been employed by City since 1990. After he was diagnosed and treated for colon cancer, Claimant filed a Form 3. He asserted that his cancer was a cumulative trauma injury caused by his repetitive exposure as a firefighter to hazardous materials, such as smoke, chemicals, and contaminants. Claimant relied on 11 O.S. Supp.2008 § 49-110(A), which states in part:

Any member of the fire department of any municipality who is disabled as a result of heart disease, injury to the respiratory system, infectious disease, or the existence of any cancer which heart disease, injury to the respiratory system, infectious disease, or cancer was not revealed by the physical examination passed by the member upon entry into the department, shall be presumed to have incurred the heart disease, injury to the respiratory system, infectious disease, or cancer while performing the firefighter's duties as a member of such department unless the contrary is shown by competent evidence.

City denied Claimant's work activities were the major cause of the cancer and asserted that § 49-110 was an unconstitutional special law.

¶ 3 A good deal of evidence was presented at trial. Claimant testified that he had repeatedly been exposed to a wide variety of burning and hazardous materials. He admitted his protective breathing equipment was "the best," but stated that exposure to smoke, diesels, and carcinogens was unavoidable. He also introduced the medical report of Dr. Lance E. Rosson, who opined that Claimant's cancer was primarily caused by the repetitive exposure to multiple carcinogens while employed by City.

¶ 4 City presented the medical report of Dr. Kent C. Hensley, who testified that "the science" did not support a relationship between Claimant's job and his cancer. He opined that the major cause of Claimant's cancer was most likely dietary in origin. City also presented a report by Ashley Muir, an epidemiologist, who examined 23 studies of firefighter health. She concluded that none of the studies provided an accurate measure of occupational exposure and the available literature did not support a conclusion that firefighters have an increased risk of cancer or increased mortality. City also presented evidence that Claimant had worked for 11 years at a second job, performing hazardous material cleanup for a private company.

¶ 5 The workers' compensation court awarded Claimant benefits, finding that City had failed to overcome the § 49-110 presumption that Claimant's cancer arose out of and in the course of employment with City. In its thorough and well-reasoned opinion, the court also rejected City's argument that the statute was unconstitutional, stating:

"In testing the validity of a statute that differentiates in its treatment of one group of individuals over other groups, a common test is applied when considering due process of law, equal protection of the laws, and special as distinguished from general laws: that is whether the classification forming the basis for the differentiation is arbitrary or capricious, and whether it bears a reasonable relation to the object to be considered." Dean v. MITF, 2006 OK 78, 145 P.3d 1097, citing with approval Texas Oklahoma Express v. Sorenson, 1982 OK 113, ¶ 12, 652 P.2d 285, 289-90...." The legislature may distinguish between groups that otherwise resemble each other, although the power cannot be exercised arbitrarily and the distinction must have a reasonable basis." Dean v. MITF, supra, 2006 OK 78, ¶ 20.

...

It appears that the legislature recognized that firefighters, in the course of their activities, are exposed to inhalation of smoke or noxious fumes, and are subjected to unusual stresses and strains greater than those of other occupations, and that such exposure, stresses and strains are causative of or contributory to the development of the specified heart disease, lung injuries, infectious disease and cancer. The provision also reflects an apparent legislative understanding that there is a high incidence of heart disease, lung injuries, infectious disease and cancer among firefighters. It has not been shown that the legislature acted arbitrarily or did not have a reasonable foundation in providing for firefighters as a class. Title 11 O.S., § 49-110 is a valid legislative enactment.

¶ 6 City appealed to a three-judge panel, which unanimously affirmed. City now seeks our review.

STANDARD OF REVIEW

¶ 7 We will sustain the decision of the workers' compensation court on appeal if it is supported by any competent evidence. Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 2, 684 P.2d 548, 549. A statute's constitutional validity and its construction and application are questions of law reviewed de novo, i.e., without deference. Gilbert v. Sec. Fin. Corp. of Okla., Inc., 2006 OK 58, ¶ 2, 152 P.3d 165, 171.

ANALYSIS

1. The Constitutional Challenge

¶ 8 Every legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably, and plainly inconsistent with the Constitution. Mehdipour v. State ex rel. Dep't of Corr., 2004 OK 19, ¶ 22, 90 P.3d 546, 555. The burden is upon City, as the moving party in this case, to show beyond a reasonable doubt that 11 O.S. Supp.2008 § 49-110(A) is unconstitutional. See City of Enid v. Pub. Employees Relations Bd., 2006 OK 16, ¶ 5, 133 P.3d 281, 285.

¶ 9 The Oklahoma Constitution, Article 5, § 46, enumerates 28 areas in which the Legislature is absolutely prohibited from passing special laws unless it is allowed to do so elsewhere in the Constitution. One of those areas is "[r]egulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts...." City asserts that § 49-110(A) violates this portion of the Constitution because the statute extends the benefit of the presumption only to firefighters, to the exclusion of all others, including other "first responders." These other first responders are law enforcement or emergency medical personnel, who, like firefighters, face dangerous situations. Resolving this claim involves a thorough look at the way our courts have applied the Constitutional provision.

¶ 10 The Supreme Court has recently decided several Article 5, § 46 challenges. In Glasco v. State ex rel. Oklahoma Department of Corrections, 2008 OK 65, ¶ 21, 188 P.3d 177, 184, the Supreme Court stated:

Generally, a special law singles out particular persons or things upon which it operates, while a general law embraces and operates upon all or all within a class. Where a statute operates upon a class, the classification must be reasonable and pertain to some peculiarity in the subject of the legislation and there must be some distinctive characteristic upon which different treatment is reasonably founded. (Citation omitted).

¶ 11 In Glasco, the Court upheld a statute permitting the State to discharge employees who had been on leave without pay for a year. The plaintiff asserted the statute targeted state employees for different treatment than other injured workers. But the Court pointed out there was no evidence the classification of "state employee" was an unreasonable legislative classification; or that such a class had no reasonable relationship to the express purposes of the Oklahoma Personnel Act; or that the class had no distinctive characteristic upon which different treatment could be reasonably founded. Furthermore, the Court concluded that the statute treated alike all members of the class of state employees on leave without pay.

¶ 12 On the other hand, in EOG Resources Marketing, Inc. v. Oklahoma State Board of Equalization, 2008 OK 95, 196 P.3d 511, the Court held unconstitutional a statute that imposed a moratorium on changes in the valuation of gas gathering assets. The evidence showed various companies were similarly situated, except that under the statute, some continued to be assessed one way, while the plaintiff was assessed another way. Id. at ¶ 22. The court concluded this was an unreasonable distinction that "boils down to nothing more than choosing a date. The method by which a gas gathering company was assessed in 2002 is not a distinctive characteristic upon which different treatment is reasonably founded." Id. at ¶ 23.

¶ 13 Similarly, in Woods v. Unity Health Center, Inc., 2008 OK 97, 196 P.3d 529, the Court struck down a statute that deemed dismissed any medical negligence lawsuit where the defendant had not been served with summons within 180 days of the lawsuit's filing. The statute was held to be an unconstitutional special law since it singled out medical negligence plaintiffs for different treatment than ordinary plaintiffs.

¶ 14 A review of these and other cases reveals that, while the appropriate analysis "consists only of...