Rankin v. Ford Motor Co.

OPALA, J., with whom ALMA WILSON, C.J., joins,

dissenting from the court’s opinion but concurring in today’s disposition.

Today’s pronouncement holds that when calculating a worker’s 85 O.S.1991 § 211 *42wage rate for benefits due for a cumulative-effect accidental injury (caused by repeated micro trauma),2 the date of injury always coincides with the time when the claimant first becomes aware (a) of the manifested harm and (b) of its causal relationship to employment. While I concur insofar as the court holds that (1) Rankin’s claim for cumulative-effect accidental injury3 was timely filed because it was brought within two years of the last harm-causing event and (2) the Munsingwear, Inc. v. Tullís awareness doctrine 4 (as refined by Coy v. Dover Corp./Norris Div.5) was correctly invoked (a) to establish his date of injury and (b) to find the applicable wage rate, I cannot accede to the unqualified breadth accorded the Tullís doctrine by today’s pronouncement.

I

THE ANATOMY OF LITIGATION

Rankin [claimant], an employee of Ford Motor Company, Tulsa glass plant, [Ford or employer] since 1964, filed Form 36 to claim compensation for an on-the-job accidental injury caused by cumulative trauma (carpal tunnel syndrome).7 Claimant alleged his injury occurred March 1, 1993 — his last day on the job before undergoing corrective surgery. Ford was successful in having the trial tribunal apply Rankin’s wage rate of October 19868 in calculating his award.

The trial tribunal (by its January 30, 1995 order) (a) found that Rankin sustained a compensable injury to his hands from repeated micro traumatic episodes on the job and (b) established the wage rate for Rankin’s temporary total disability and permanent partial disability by reference to the date he first became aware of his injury (October 1986).

Rankin sought corrective relief. After a Court of Appeals’ decision for Rankin, Ford sought certiorari, which we granted to review the first-impression issue tendered.

II

THE 1985 AMENDMENT OF 85 O.S.1981 § 43(A) DID NOT RELEGATE THE TULLIS AWARENESS DOCTRINE 9 TO A COMPLETELY INEFFECTIVE STATUS

*43Because § 43(A)10 was amended in 1985, the Tullís awareness doctrine (which antedates the amendment’s passage, announced as it was in 1976) must be revisited to test its compatibility with the after-enacted legislative change.

A

BY THE 1985 AMENDMENT OF § 43(A), CLAIMS FOR ACCIDENTAL INJURY BY A SERIES OF MICRO TRAUMATIC EPISODES ARE BARRED IF NOT BROUGHT WITHIN TWO YEARS OF THE LAST HARM-DEALING ON-THE-JOB EVENT

The post-1985 language of § 43(A), which introduced into the law a concept that partakes of both limitations and repose notions,11 bars claims (for compensable cumulative-effect injuries) not brought within two years of the date the worker was last subjected to harm-dealing forces on the job. It imposes (1) a limitation12 on repeated-trauma claims13 as well as (2) a repose14 vis-a-vis those cumulative trauma injuries that do not culminate in a worker’s awareness within two years of the last micro traumatic on-the-job event.

B

THE VARIED IMPACT OF § 43(A)’s 1985 AMENDMENT ON THE TEMPORAL POINT FOR A CUMULATIVE-EFFECT INJURY’S OCCURRENCE

The date of injury is critical to establishing the injured worker’s wage rate for the compensation award. For cumulative-effect injuries this significant date usually coincides with the onset of a functional impairment (or disability) from repeated trauma, which manifest themselves in harm (of which the worker becomes or should become aware).15 Under the 1985 provisions of § 43(A),16 as well as before, compensable harm, for which a claim may be brought, occurs when a worker becomes aware (or should be aware) of a manifested injury by cumulative trauma. If the claim be brought by a worker who remains on the job and continues to experience the same traumatic episodes, the rate of compensation to be used in calculating the award must be that which applied at the time the repeated harm-dealing events culminated in awareness-inducing pathology. This critical temporal point is to be ascertained by using the Tullís awareness test as refined by Dover.17

Because on-the-job aggravation of an earlier-compensated cumulative-effect injury, which produces increased impairment (or disability), is treated as another accidental personal injury within the meaning of the Workers’ Compensation Act [85 O.S.1991 §§' 1 et seq.],18 a worker, who remains in the same employment and continues to be subjected to repeated micro traumatic harm on the job, may bring successive claims for increased impairment (or disability) from post-injury- aggravation of the earlier-compensated condition. The date of injury for each new claim (based on post-injury aggravation) is established by reference to when the worker became aware (or should have *44been aware) of the enhanced post-injury pathology and its causal relationship to employment.

The described process for a worker’s recovery of benefits due for post-injury on-the-job aggravation is to be distinguished from post-award changes in compensable “conditions” that give rise to a 85 O.S.1991 § 2819 reopening claim. The latter process, which takes place — sans intervention of new trauma — ;from later-occurring changes in pathology, must be shown (a) to be attributable to a progression of the earlier compensable injury and (b) to result in increased impairment (or disability).20 When a worker’s initial claim for a repeated-trauma injury is brought after he has left employment and is no longer subjected to on-the-job harm-dealing forces, the date of injury (for calculating the compensation rate that is due) must be the “date of last trauma.”21 In short, only for workers who may no longer bring additional claims for their accidental post-injury on-the-job aggravation [and must hence stand confined by law to § 28 reopening relief for additional benefits due upon progressive deterioration of their compensable condition] is the date of injury moved forward (by force of the 1985 amendment) to the point in time when the employee last experienced a harm-dealing on-the-job event.

Ill

SUMMARY

The 1985 amendment of § 43(A) moved the limitation’s point of beginning from the earlier temporal marker — the date when com-pensable harm from repeated trauma culminated in “awareness” — to when the worker was last subjected to a micro traumatic on-the-job event. All claims for a cumulative-effect injury brought two years after the last harmful event are barred by the law’s repose, whether — before that period’s expiration — the injury did or did not manifest itself in awareness-inducing impairment (or disability).

Even though the 1985 amendment of § 43(A) did modify the Tullís awareness test, it did not totally eliminate the conceptual underpinnings for an accidental injury by repeated trauma. While the Tullís doctrine can no longer trigger the limitation period, it remains viable as an aid in establishing the date of injury (and hence the wage rate) for those workers who remain subject to continued harm-dealing forces in their work environment. For all other claimants the date of injury is, by force of the 1985 amendment, postponed to the date of their last encounter with harm-dealing on-the-job forces.

Because I cannot countenance the court’s declaration that the Tullís awareness test must be continued in force to dictate a worker’s compensation rate for all repeated-trauma claims, I recede entirely from today’s pronouncement, acceding only to the court’s disposition.

. The pertinent terms of 85 O.S.1991 § 21 are: “Except as otherwise provided in this act, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:

(2) If the injured employee shall not have worked in such employment during substantially thé whole of such year, his average annual earning shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.” [Emphasis mine.]

. For a discussion of the difference between a cumulative-effect and single-event injury, see McDonald v. Time-DC, Inc., Okl., 773 P.2d 1252, 1254-57 (1989).

. The court first recognized in 1957 that an "accidental injury" may be effected progressively over a lengthy period of time from the cumulative effect of numerous micro traumatic episodes. See Macklanburg-Duncan Company v. Edwards, Okl., 311 P.2d 250, 255 (1957).

. Okl., 557 P.2d 899 (1976). In Tullís the court held that a cumulative-effect accidental injury occurs when a worker (a) becomes aware of the "ill effect" of repetitive on-the-job trauma and (b) understands the effect to be causally connected with employment. Id. at 903. The Tullís awareness doctrine was refined by Coy v. Dover Corp./Norris Div., Okl., 773 P.2d 745 (1989). There the court superimposed an objective (reasonable man's) standard upon both prongs of the Tullis test. Id. at 747.

. Dover, supra note 4 at 747.

. Form 3, the Employee's First Notice of Accidental Injury and Claim for Compensation, serves to initiate the claim process.

. The time for filing Form 3 is prescribed by 85 O.S.1991 § 43(A). Its pertinent terms provide:

"The right to claim compensation under the Workers’ Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers’ Compensation Court. Provided however, a claim may be filed within two (2) years of the last payment of any compensation or remuneration paid in lieu of compensation or medical treatment which was authorized by the employer or the insurance carrier. Provided further however, with respect to ... 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...." [Emphasis mine.]

. Rankin admitted he had reported to Ford in October 1986 that he had numbness in his hands when using them to perform work at levels above his head. Hrg. Tr. — pg. 10.

. For a discussion of the Tullís awareness doctrine, see supra note 4.

. For the pertinent terms of 85 O.S.1991 § 43(A), see supra note 7.

. For a discussion of the distinction between a statute of limitation and one of repose, see Smith v. Westinghouse Elec. Corp., Okl., 732 P.2d 466, 468 n. 11 (1987).

. Statutes of limitation serve to place a limit on the plaintiff’s time to bring an action. After the prescribed time period has lapsed, a statute of limitation extinguishes the remedy for the redress of an accrued cause of action. Westinghouse Elec., supra note 11 at 468.

. See Dover supra, note 4 at 748.

. Repose serves to extinguish the right even before a claim may have accrued. In short, by force of repose claims can be destroyed before they arise. Westinghouse Elec., supra note 11 at 468.

. Tullis, supra note 4 at 903; Peabody Galion Corp. v. Workman, Okl., 643 P.2d 312, 315—316 (1982); Edwards, supra note 3 at 255.

. For the pertinent terms of 85 O.S.1991 § 43(A), see supra note 7.

. For the components of the Tullis awareness doctrine, see supra note 4.

. ITT Continental Baking Co. v. Ware, Okl., 620 P.2d 1308, 1310 (1980); Oklahoma City v. Schoonover, Okl., 535 P.2d 688, 691-92 (1975).

.The pertinent terms of 85 O.S.1991 § 28 are: "Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the Court may at any time review any award, and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum and minimum provided in the Workers' Compensation Act_" [Emphasis added.]

. Benning v. Pennwell Publishing Co., Okl., 885 P.2d 652, 655-56 (1994); Oklahoma Gas & Electric Co. v. State Industrial Court, Okl., 366 P.2d 609, 613 (1961).

. See the pertinent terms of 85 O.S.1991 § 43(A), supra note 7.