Dear Clients:

The Oklahoma Supreme Court last week held that the last employer or insurer is not solely liable for all damages due to a cumulative trauma Workers' Compensation injury if the date of awareness of the injury predates the October 23, 2001, amendment to the Workers' Compensation statutes.

85 O.S. Section 11(B)(5), one of the key 2001 amendments, has been the subject of vigorous debate since its enactment. The purpose of Sec. 11(B)(5) was to reduce litigation in claims which involve cumulative trauma where multiple insurance carriers provided coverage during a claimant's tenure. Essentially, the Legislature intended for cumulative trauma claims to be viewed as similar to those involving "occupational disease," which are covered under 85 O.S. Sec.11(B)(4). Disputes between insurance carriers in occupational disease claims (e.g. asbestosis and silicosis) have been almost completely eliminated.

The main concern in applying Sec. 11(B)(5) to everyday practice was what controls – the date of awareness of injury, or the date of last exposure? After several published opinions from the Court of Civil Appeals, all of which have held that the date of last exposure was the critical determination in applying Sec. 11(B)(5), the Oklahoma Supreme Court has finally ruled on this important issue. In CNA Insurance v. Ellis, the Supreme Court has held that the date of awareness of injury controls in claims involving cumulative trauma. If the date of awareness predates October 23, 2001 [the date Sec. 11(B)(5) became effective] then the traditional use of apportionment is proper. If the date of awareness of injury is after that date, then you look to the language of Sec. 11(B)(5).

Though the Ellis decision does bring some long-needed clarity to cumulative trauma claims, it still leaves some unanswered questions, particularly with respect to the rates for disability. If the date of awareness controls, this opinion may de facto overrule the Court of Civil Appeals opinion in Parkhurst v. City of Tulsa, which holds that the date of last exposure determines all issues, including the rates for disability.

Please feel free to contact our office should you desire additional information.

Sincerely, Jim Cassody
For the Firm