Cna Ins. Co. v. Ellis

• Decision Date: 24 October 2006
• Docket Number: No. 101,418.,101,418.
• Parties: CNA INSURANCE COMPANY and The Oklahoma Workers' Compensation Court, Petitioners, v. John W. ELLIS, M.D., Physicians Liability Insurance Company, and Vicki H. Adkins, Appellees.
• Court: Oklahoma Supreme Court

Page 874

148 P.3d 874

2006 OK 81

CNA INSURANCE COMPANY and The Oklahoma Workers' Compensation Court, Petitioners, v. John W. ELLIS, M.D., Physicians Liability Insurance Company, and Vicki H. Adkins, Appellees.

No. 101,418.

Supreme Court of Oklahoma.

October 24, 2006.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV.

¶ 0 CNA Insurance Company seeks review of an opinion of the Court of Civil Appeals, Division IV, which affirmed in part and reversed in part an order of the Workers' Compensation Court, Honorable Richard G. Mason, trial judge. The trial court held that liability for Claimant Vicki H. Adkins' cumulative trauma injury should be apportioned 30% as to CNA and 70% as to Physicians Liability Insurance Company, the successive insurers for John W. Ellis, M.D. Both parties appealed to a three judge panel of the Workers' Compensation Court which reversed the trial court and held PLICO solely liable for Claimant's injuries. PLICO appealed to the Court of Civil Appeals which reversed the Panel's ruling and ordered equal apportionment of liability to both parties. We granted certiorari on October 10, 2005.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

Angela Reinstein, Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Petitioners, CNA Insurance Company and John W. Ellis, M.D.

Louis G. Buchanan, Oklahoma City, Oklahoma, for Appellant, Physicians Liability Insurance Company.

WINCHESTER, V.C.J.

¶ 1 The primary issue presented in this cumulative trauma injury case is whether the enactment of 85 O.S.2001 § 11(B)(5), which effectively prohibits apportionment by imposing sole liability on the covering insurer on the date of last exposure, should be applied retroactively. We hold that in cumulative trauma injury matters, where the date of injury pre-dates the effective date of the statute, October 23, 2001, § 11(B)(5) is inapplicable.

BACKGROUND

¶ 2 Claimant, Vicki H. Adkins, began working for Employer, John W. Ellis, M.D., on July 19, 1999. She sustained work-related, cumulative trauma injuries to her hands, arms and shoulders. Claimant filed her Form 3 on February 19, 2002, alleging the date of last exposure to be February 23, 2000 and continuing. The parties agree that Claimant first became aware of her workrelated injury in October, 1999, and the trial judge found October 19, 1999, as the date of injury. This date has not been challenged.

¶ 3 CNA Insurance Company (CNA) provided the insurance coverage from Claimant's first day on the job through December 31, 1999. On January 1, 2000, Employer's carrier switched to Physicians Liability Insurance Company (PLICO), where coverage has remained at all times relevant since. At the time of trial, March 11, 2004, PLICO had provided all the medical treatment and benefits for Claimant's injuries. PLICO successfully added CNA to the case in July, 2002.

¶ 4 The trial judge received medical expert evidence from Claimant, as well as CNA and PLICO. PLICO's medical expert report opined that Claimant's injuries occurred entirely before January 1, 2000, prior to PLICO's assumption of coverage. CNA's expert attributed half of the injuries to impairment during CNA's coverage and the other half to impairment during PLICO's coverage. Claimant's expert did not opine as to apportionment of liability. After trial, the trial judge apportioned liability as 70% to PLICO and 30% to CNA.

¶ 5 Both insurers appealed to a three judge panel (Panel) of the Workers' Compensation Court.¹ CNA, urging sole liability rests with PLICO, asserted that the Legislature abolished the apportionment of liability doctrine when it enacted 85 O.S.2001 § 11(B)(5) and replaced it with the last exposure rule. PLICO argued that while the trial judge was correct to apportion liability, the trial judge erred in his apportionment percentages since the competent medical evidence showed at most a 50/50 split of liability. The Panel reversed the portion of the trial judge's decision apportioning liability and, apparently applying § 11(B)(5), found sole liability rested with PLICO.

¶ 6 PLICO appealed the Panel's ruling. The Court of Civil Appeals (COCA), Division IV, reversed the Panel's decision and remanded with instructions for the trial judge to enter judgment apportioning liability equally between CNA and PLICO. COCA held that § 11(B)(5) should not be applied retroactively and, as such, apportionment of liability in this case is proper. COCA remanded the action because it found the trial judge's apportionment of 70/30 unsupported by any competent medical evidence and, instead, ordered an equal division of liability. Although we agree with the holding of the Court of Civil Appeals, Division IV, we vacate its opinion to reconcile an apparent conflict among divisions of COCA with respect to apportionment of liability and the application of § 11(B)(5).²

I. TITLE 85 O.S.2001 § 11(B)(5) IS NOT TO BE APPLIED RETROACTIVELY.

¶ 7 The legal issue arises from the Legislature's 2001 amendment of Section 11(B)(5) of the Workers' Compensation Act, which reads in pertinent part:

When 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 therefore, without right to contribution from any prior employer or insurance carrier.

Prior to the statute's effective date of October 23, 2001, and on the date of injury in this case, the law allowed apportionment of liability between successive insurers in cumulative trauma cases. See Parks v. Flint Steel Corp., 1988 OK 64, 755 P.2d 680; Southwest United Industries v. Polston, 1998 OK 78, 964 P.2d 210; and CR Industries v. Dorsey, 1998 OK 111, 970 P.2d 179. After the 2001 amendment, however, the liability of successive insurers for cumulative trauma injuries is expressly governed by the date of last exposure. See 85 O.S.2001 § 11(B)(5). Here, Claimant's last exposure occurred after the effective date of Section 11(B)(5) while the date of her first awareness preceded the statute. The dispositive question to be answered is whether § 11(B)(5), which would rest sole liability with PLICO, is applicable to these facts. We hold it is not.

A. History of Cumulative Trauma Cases

¶ 8 Historically, the date of awareness in cumulative trauma cases has been the determinative date in ascertaining disability. Peabody Galion Corp. v. Workman, 1982 OK 42, ¶ 20, 643 P.2d 312, 317. While the last injurious exposure rule applies in occupational disease cases, we have repeatedly distinguished those cases from cumulative trauma cases finding the last exposure rule inapplicable to the latter. See Peabody Galion, supra; Parks v. Flint Steel Corp., 1988 OK 64, 755 P.2d 680. However, in 1985, the Legislature amended the statute of limitations for cumulative trauma injuries, changing the trigger date from the date of awareness to the date of last exposure, just as with occupational disease cases. 85 O.S. § 43(A).³

¶ 9 While many argued this amendment signaled the end of the use of the awareness doctrine in all cumulative trauma matters, we disagreed and held that application of the last exposure rule was strictly limited to a determination of the relevant statute of limitations period. Rankin v. Ford Motor. Co., 1996 OK 94, ¶ 8, 925 P.2d 39, 40. The Rankin Court affirmed the Peabody Galion rule that the time of injury in cumulative trauma cases is the date claimant first becomes aware of his job-related injury. Id. at ¶ 12. The Court further stated that "[n]o legislation passed since Peabody Galion was decided indicates that the legislature disagrees with the Peabody Galion rule." Id.

¶ 10 CNA and COCA, Division III, rely on Southwest United Industries v. Polston, 1998 OK 78, ¶ 7, 964 P.2d 210, 212, for the proposition that the awareness doctrine is no longer applicable in any aspect of a cumulative trauma case. Such reliance is misplaced. The only issue presented in Polston concerned whether apportionment of liability among successive insurers in a cumulative trauma case was proper. It is true we stated in Polston that cumulative trauma injuries are "now governed by the date of the last trauma and the awareness test no longer applies." Id. at ¶ 7. However, when taken in context, the Court's recognition of the demise of the awareness test related solely to its relevance to the 1985 amendment to the statute of limitations, 85 O.S. § 43(A). The Polston Court went on to hold that "[a]pportionment is necessary in instances such as the instant matter where the micro-traumatic exposures were cumulating during two successive insurers." Id. at ¶ 8.

¶ 11 A few months later, in C.R. Industries v. Dorsey, 1998 OK 111, ¶ 4, 970 P.2d 179, 180, we again allowed apportionment of liability and reiterated that, based on Polston, "the last injurious exposure does not in itself decide who is liable in a cumulative trauma case." We believe Judge Hansen, dissenting in KECO, Inc. v. Hayward, 2005 OK CIV APP 53, ¶ 7, 123 P.3d 50, 55, and Anderson Mechanical, Inc. v. Spiegel, 2005 OK CIV APP 60, ¶ 7, 119 P.3d 1287, 1291, both of which are discussed later herein, was correct when she wrote "... it was the necessity of apportionment, not the imposition of a rule to define the specific date of injury for cumulative trauma injuries, that was the true holding in Polston." To hold otherwise would render our decision in Rankin a nullity.⁴

¶ 12 The date of Claimant's injury is the critical date in determining the applicability of § 11(B)(5) to the instant matter. This is so because, generally, the law in effect at the time of the employee's injury controls. See 85 O.S.2001 § 3.6(...