DEFENDER SERVICES v. Cooper

ROBERT DICK BELL, Presiding Judge.

T1 Petitioners, Defender Services, Inc. (Defender) and Liberty Mutual Insurance Company (Liberty), seek review of an order of a three-judge panel (Panel) of the Workers' Compensation Court dismissing Respondents, Direct Staffing Solutions, Inc. (Direct Staffing) and CompSource Oklahoma (Comp-Source), from the case. The Panel's order further ruled Defender bears full liability for workers compensation benefits payable to Diana Cooper (Claimant) because she was last injuriously exposed to the risk of cumulative trauma for a period of at least ninety days while employed by Defender. The Panel's order is sustained.

[ 2 Claimant worked at the Goodyear plant for two employers. She first performed janitorial duties for Defender from February 2006 until September 2006. She denied experiencing any pain in her hands while working for Defender. She worked for Direct Staffing for four days in September 2006, and for 21 days from March 2007 until April 2007. While employed by Direct Staffing, Claimant worked with automated sewing machines. She was then reassigned to the re-rolling department where she had to lift 65-pound spools. Claimant testified she experienced immediate pain in her hands when she lifted the spools.

13 Claimant filed a Form 3 against Direct Staffing alleging a single incident injury to her left hand and left wrist with a date of last exposure on March 25, 2007. Claimant filed an amended Form 83 adding an alternative cumulative trauma injury claim to both hands and both wrists and naming Defender as a party. The trial court joined Defender as a proper party. After trial, the trial court found Claimant became aware she had sustained a cumulative trauma injury to both hands arising out of and in the course of her employment with Direct Staffing with the date of last injurious exposure on March 25, 2007. The court also found no injurious exposure while Claimant was employed with Defender and dismissed Defender without prejudice.

T4 Direct Staffing appealed to the Panel. A unanimous Panel affirmed in part and modified in part the trial court's decision. The Panel dismissed Direct Staffing and CompSource and found Defender was responsible for the last injurious exposure pursuant to 85 0.8. Supp.2006 ¹ Defender sought review of that order.

15 On review, Defender contends there is no competent evidence to support the Panel's ruling that Claimant sustained a compensable injury while working for Defender. Defender points out Claimant was employed by Direct Staffing on March 25, 2007, the date she became aware of the trauma, and she had not worked for Defender for more than 2 months. Therefore, Defender maintains, Claimant suffered no injurious exposure during her employment with Defender.

T6 Defender further contends the Panel's decision to dismiss Direct Staffing was contrary to law and not supported by any competent evidence because $ 11(B)(5), which states "that the employer and its insurance carrier with the last ninety days of injurious exposure shall alone be liable," does not provide an employer with the last ninety days of employment is liable. Instead, this language requires a finding of injurious exposure before an employer and its insurance carrier can be held liable.

T7 Direct Staffing counters Defender is the appropriate responsible party for the instant cumulative trauma case. Direct Staffing points out Claimant's employment with Direct Staffing was only 4 days in September, 2006, and 21 days between March, 2007 and April, 2007, for a total of 25 days, whereas, Claimant was employed with Defender for more than 8 months. Therefore, Direct Staffing argues, Defender Services was properly identified as the employer responsible for the last injurious exposure.

18 The standard of review for a decision of the Workers' Compensation Court's decision is whether it is supported by "any competent evidence." Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 13, 684 P.2d 548, 552. It is this Court's responsibility to canvass the facts, not to weigh conflicting proof to determine "where the preponderance lies but only to ascertain whether the tribunal's decision is supported by competent evidence." Id. at ¶ 12, 684 P.2d at 552.

T9 In this case, competent evidence supports the Panel's order that Defender was responsible for the last injurious exposure pursuant to 85 O.S. Supp.2006 § 11(B)(5). Accordingly, the Panel's order is sustained.

1 10 SUSTAINED.

BUETTNER, J., concurs, and ADAMS, J., specially concurs with separate opinion.

1 . Section 11(B)(5) provides:

Where compensation is payable for an injury resulting from cumulative trauma, the last employer in whose employment the employee was last injuriously exposed to the trauma during a period of at least ninety (90) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier. If there is no employer in whose employment the employee was injuriously exposed to the trauma for a period of at least ninety (90) days, then the last employer in whose employment the employee was last injuriously exposed to the trauma and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, with right to contribution from any prior employer or insurance carrier.