KELLEY v. WOLVERINE TUBE, INC.
2017 OK CIV APP 19
Okla. Civ. App.2017Background
- In May–June 2011 Kelley experienced work-related cumulative-trauma symptoms: neck and hand symptoms in May, then new low-back pain in mid-June; she sought emergency care June 15, 2011.
- Kelley filed a Form 3 in Sept. 2011 listing neck, arms, hands, and low back; the Oct. 2012 trial and resulting 2012 award adjudicated only the neck/hands cumulative claim (date of awareness May 2011) and did not address the June 2011 low-back complaint.
- Kelley continued employment and later filed a new Form 3 on Aug. 13, 2015 alleging the June 2011 low-back cumulative injury (date of last exposure Aug. 12, 2015), timely within limitations.
- Employer denied the 2015 low-back claim and asserted claim-preclusion/issue-preclusion, arguing the low-back injury was or could have been litigated in 2012 and thus waived.
- The trial court (Mar. 23, 2016) found Kelley credible and awarded compensation for the low-back cumulative injury (date of awareness June 15, 2011); a three-judge panel vacated that award (Aug. 11, 2016) based on claim preclusion; Kelley appealed.
- The Court of Civil Appeals reversed the panel, holding the low-back injury was a distinct injury (June 2011 awareness) that was not and could not have been adjudicated in the 2012 neck/hands proceeding, vacated the panel order, and reinstated the trial court's award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2011 low-back claim was waived/precluded by the 2012 adjudication of neck/hands cumulative claim | Kelley: Low-back pain arose in June 2011 as a separate injury and was not adjudicated in the 2012 neck/hands trial, so later suit is proper | Wolverine: Kelley knew of the back injury at the 2012 trial and could/should have litigated it then; doctrine of claim preclusion applies | Held: No waiver; back injury (June 2011 awareness) was a distinct injury not adjudicated in 2012; panel erred to apply preclusion; trial court's award reinstated |
Key Cases Cited
- Barker v. State Ins. Fund, 40 P.3d 463 (Okla. 2001) (standard for mixed question of fact and law and review approach)
- CNA Ins. Co. v. Ellis, 148 P.3d 874 (Okla. 2006) (date of awareness is determinative in cumulative-trauma cases)
- Am. Airlines, Inc. v. Crabb, 221 P.3d 1289 (Okla. 2009) (reaffirming date-of-awareness rule for cumulative-trauma injuries)
- Sooner State Optical, Inc. v. Blackburn, 141 P.3d 577 (Okla. Civ. App. 2006) (injuries with same date of accrual are deemed "at issue" together)
- Frair v. Sirloin Stockade, Inc., 635 P.2d 597 (Okla. 1981) (Rule 19 instructs eliminating fragmented litigation when injuries accrue the same day; court distinguished Frair on facts)