Harvey v. Auto Plus of Woodward
2012 OK CIV APP 92
| Okla. Civ. App. | 2012Background
- Harvey appeals a three-judge panel's affirmation of a trial court decision on cumulative trauma injuries.
- Employer/Insurer defense under 85 O.S.Supp.2010 § 11(B)(5) was challenged as not being pleaded in a Form 10.
- Trial court denied waiver of the § 11(B)(5) defense and found compensable injuries, with limitations on the defense.
- The three-judge panel affirmed; the Supreme Court consolidated review of Harvey v. Auto Plus and related case.
- The court needed to decide retroactive application of the 2011 amendment to § 340(D) governing standard of review.
- The Court held § 340(D) retroactive and affirmed the panel's decision, sustaining the denial of the § 11(B)(5) defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of § 11(B)(5) defense | Harvey argues § 11(B)(5) was waived for not pleading in Form 10. | Auto Plus argues discretion to rely on discovery and pleadings; no waiver occurred. | § 11(B)(5) defense not waived |
| Applicable standard of review for retroactive appeals | The pre-2011 standard should apply if injury predates amendment. | The post-2011 standard applies retroactively under § 340(D). | Retroactive application of § 340(D) applies; standard is against the clear weight of the evidence |
| Constitutionality/retroactivity of § 340(D) | Legislature cannot impose retroactive standard on already-tried cases under separation of powers. | Statutory standards of review may be retroactive and do not alter substantive rights. | § 340(D) constitutional and retroactive |
| Subsequent injurious exposure under § 11(B)(5) | Claimant's exposure ceased or was not injurious in subsequent self-employment; employer liable for initial trauma. | Claimant's subsequent self-employment exposure aggravated or maintained condition; last-employer rule applies. | No injurious exposure in subsequent employment; prior employer liable |
Key Cases Cited
- Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okla. 1984) (three-judge panel vs. supreme court standards of review)
- Yocum v. Greenbriar Nursing Home, 130 P.3d 213 (Okla. 2005) (before 2010 amendment; any competent evidence standard)
- Dunlap v. Multiple Injury Trust Fund, 249 P.3d 951 (Okla. 2011) (retroactive application of against the clear weight of the evidence standard)
- CNA Insurance Co. v. Ellis, 148 P.3d 874 (Okla. 2006) (substantive rights vs. procedural retroactivity; § 11(B)(5) retroactivity context)
- Cole v. Silverado Foods, Inc., 78 P.3d 542 (Okla. 2003) (retroactivity generally; legislative intent for retroactive application)
- Arrow Trucking Co., Inc. v. Jimenez, 281 P.3d 741 (Okla. Civ. App. 2010) (court may relax strict compliance with forms/rules for good cause)
- Falling v. Southern Material Handling Co., 138 P.3d 838 (Okla. Civ. App. 2006) (last-employer liability when last exposure not shown to cause disability)
- Neel v. American Woodmark Corp., 186 P.3d 782 (Okla. Civ. App. 2006) (burden-shifting framework for cumulative trauma)
- Nomac Drilling LLC v. Mowdy, 277 P.3d 1282 (Okla. 2012) (recognition of post-2011 standard application in appeals after effective date)
- Yzer, Inc. v. Rodr, 280 P.3d 323 (Okla. 2012) (acknowledges § 340(D) applicability; retroactivity considerations noted)