KELLEY v. WOLVERINE TUBE, INC., 2017 OK CIV APP 19

Kelley worked for Wolverine Tube and developed neck/hand cumulative trauma with date of awareness in May 2011; she later developed low‑back pain in June 2011 after the neck symptoms.
Kelley filed a Form 3 in Sept. 2011 listing neck, hands, and low back; the 2012 trial addressed only the neck/hands claim and resulted in a final award for those injuries. The 2012 order did not adjudicate the low‑back claim.
Kelley filed a new Form 3 in Aug. 2015 seeking benefits for the June 2011 low‑back injury (date of last exposure Aug. 12, 2015), which Employer denied and asserted claim‑preclusion/waiver because the back was listed in the 2011 Form 3.
The workers’ compensation trial court (Mar. 23, 2016) found the low‑back injury compensable, awarded medical treatment, and reserved rates. Employer sought panel review.
A three‑judge panel vacated the trial court’s order (Aug. 11, 2016), holding the back claim was precluded by the earlier proceedings. Kelley appealed to the Court of Civil Appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the doctrine of claim/issue preclusion bars Kelley’s 2015 low‑back claim because the back was listed on her 2011 Form 3 and a 2012 judgment was entered	Kelley: no waiver — the low‑back injury arose in June 2011 (after the May neck awareness), was a separate injury, was not litigated or adjudicated in 2012, and therefore the 2015 claim is not precluded	Wolverine Tube: Kelley knew of the back injury by the 2012 trial and could/should have litigated it then; listing it on the 2011 Form 3 meant she waived future litigation of that injury	Court of Civil Appeals: vacated the panel, reinstated trial court — no waiver or preclusion. The June 2011 low‑back injury was a distinct injury from the May 2011 neck/hands injury and was not adjudicated in 2012, so the later claim may proceed.

Barker v. State Ins. Fund, 40 P.3d 463 (2001) (standard of review for mixed fact/law preclusion questions)
CNA Ins. Co. v. Ellis, 148 P.3d 874 (2006) (date of awareness is determinative in cumulative‑trauma cases)
American Airlines Inc. v. Crabb, 221 P.3d 1289 (2009) (reaffirming date‑of‑awareness rule)
Sooner State Optical, Inc. v. Blackburn, 141 P.3d 577 (2006) (injuries accruing on same date are treated as one overall injury)
Frair v. Sirloin Stockade, Inc., 635 P.2d 597 (1981) (discusses Rule 19 and avoiding fragmented litigation; distinguished on facts)
Uniroyal Goodrich Tire Co. v. Kemp, 984 P.2d 251 (1999) (Frair not controlling where injuries differ by exposure/date)