
	OSCN Found Document:SCHMAUSS v. TULSA COUNTY SHERIFFS DEPT.

	
				

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SCHMAUSS v. TULSA COUNTY SHERIFFS DEPT.2014 OK CIV APP 44325 P.3d 704Case Number: 111911Decided: 03/21/2014Mandate Issued: 04/29/2014DIVISION ITHE COURT OF CIVIL APPEALS FOR THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 44, 325 P.3d 704
MICHAEL SCHMAUSS, Petitioner,v.TULSA COUNTY SHERIFFS 
DEPT., TULSA COUNTY (OWN RISK #11247), and THE WORKERS' COMPENSATION COURT, 
Respondents.

PROCEEDING TO REVIEW AN ORDER OF THEWORKERS' COMPENSATION 
COURT
HONORABLE OWEN T. EVANS, JUDGE

SUSTAINED

Donald E. Smolen, II, Smolen, Smolen & Roytman, P.L.L.C., Tulsa, 
Oklahoma, for Petitioner,Eric L. Tabor, Tulsa, Oklahoma, for 
Respondents.


Larry Joplin, Presiding Judge:
¶1 Petitioner Michael Schmauss (Claimant) seeks review of the trial court's 
order determining rate of compensation for purposes of the payment of benefits 
for permanent partial disability. In this proceeding, Claimant asserts he is 
entitled to compensation at the rate in effect at the time he became aware of 
his consequential cumulative trauma injury. Respondent Tulsa County Sheriffs 
Dept. (Employer) asserts the rate in effect at the time of the original injury 
applies.
¶2 The facts are undisputed. Claimant filed his Form 3, seeking benefits for 
a job-related single event injury to his right shoulder on September 19, 2008; 
the rate for payment of PPD at the time of the injury was $289.00 per week. 
Claimant later filed an amended Form 3, and alleged he became aware of a 
consequential cumulative trauma injury to his left shoulder in April 2011; the 
rate for payment of PPD at the time of his awareness was $323.00 per week.
¶3 The parties appeared for hearing in May 2013. Claimant asserted he was 
entitled to compensation for PPD to his left shoulder at the rate in effect at 
the time he became aware of the consequential cumulative trauma left shoulder 
injury. Employer asserted that Claimant was entitled to compensation for PPD to 
both the original right shoulder injury and the consequential left shoulder 
injury at the rate in effect at the time of the original right shoulder 
injury.
¶4 On consideration of the parties' briefs on the issue, the trial court 
awarded Claimant benefits for PPD to both the right and left shoulder at the 
rate in effect at the time of the original right shoulder injury. Claimant 
appeals, and again argues he is entitled to PPD benefits for the consequential 
injury to his left shoulder at the rate in effect at the time he became aware of 
the consequential cumulative trauma injury to his left shoulder in April 
2011.
¶5 The parties concede that law in effect at the time of the injury controls 
both the award of benefits and appellate review. Williams Companies, Inc., v. 
Dunkelgod, 2012 OK 96, ¶14, 
295 P.3d 1107, 1111. The parties 
both argue the question of rate of compensation constitutes one of law, subject 
to de novo review in this Court. See, e.g., Multiple Injury Trust Fund 
v. Wade, 2008 OK 15, ¶12, 180 P.3d 1205, 1208.
¶6 Claimant asserts the date of his awareness of his cumulative trauma injury 
controls. See, e.g., American Airlines Inc. v. Crabb, 2009 OK 68, 221 P.3d 1289; C.N.A. Ins. Co. 
v. Ellis, 2006 OK 81, 148 P.3d 874. Citing 
Dunkelgod, Employer asserts the Claimant's right to benefits became fixed 
at the time of the original injury, including the right to benefits for any 
consequential injury. Neither Claimant nor Employer cite any authority directly 
on point.
¶7 "Ascertaining the time of injury in cumulative-trauma cases is critical 
for determining (1) whether the claim was timely filed . . . and (2) what rate 
of compensation is to be paid." PFL Life Ins. Co. v. Franklin, 1998 OK 32, ¶22, 958 P.2d 156, 165. Indeed,"'the 
determinative date in ascertaining a disability - and for establishing the 
applicable rate of compensation - . . . in cumulative effect trauma cases . . . 
is the date the manifested condition first becomes known or should be known as 
job related.'" Rankin v. Ford Motor Company, 1996 OK 94, ¶12, 925 P.2d 39, 40. (Citation omitted.) 
See also, Nationwide Environmental Services, Inc. v. Beasley, 2004 OK CIV APP 17, 84 P.3d 10741; Parsons v. 
OXY USA, Inc., 1998 OK CIV APP 
43, 964 P.2d 913.2
¶8 In this respect, "[t]he law is settled beyond reasonable cavil that an 
employer is liable for all legitimate consequences flowing from any injury 
compensable under the Workmen's Compensation Law, and the injured workman is 
entitled to recover, under the schedule of compensation, for the extent of his 
disability based upon the ultimate result of the compensable injury, without 
regard to increase of or aggravation of his disability by legitimate consequence 
occurring subsequent to the time of injury." Ada Iron & Metal Co. v. 
Tarpley, 1966 OK 202, ¶7, 420 P.2d 886, 888. (Citations 
omitted.) And, "[w]here the evidence establishes two accidental injuries the 
question of whether or not disability should be attributed to the first accident 
or the second is a question of fact and depends on whether the disability 
sustained was caused by a recurrence of the original injury or by an independent 
and intervening cause." TRW/Reda Pump v. Brewington, 1992 OK 31, ¶35, 829 P.2d 15, 28. (Citations 
omitted.)
¶9 We think these cases govern in the present case and dictate the order of 
the trial court should be sustained. If the cumulative trauma injury to 
Claimant's left shoulder constituted a separate injury, not causally related to 
the Claimant's original injury to his right shoulder, we believe there would be 
good reason to hold the separate, distinct cumulative trauma injury to the left 
shoulder should be compensated at the rate in effect at the time of Claimant's 
awareness of that injury in April 2011. PFL Life Ins. Co., supra; 
Rankin, supra.
¶10 However, the cumulative trauma injury to Claimant's left shoulder has 
never been treated nor argued as anything other than a consequential injury 
causally related to the original right shoulder injury. Because the cumulative 
trauma left shoulder injury is a consequential injury causally related to the 
original right shoulder injury, and, under Ada Iron & Metal Co., 
Claimant's right to benefits became fixed at the time of the original injury 
regardless of any increase in disability as a result of a consequential injury, 
it stands to reason that the rate of compensation applicable to the original 
injury should apply to consequential injuries causally related to the original 
injury.
¶11 The trial court so determined in the present case, and we hold the trial 
court did not err as a matter of law or fact in so ruling. The order of the 
trial court is SUSTAINED.

HETHERINGTON, V.C.J., and BUETTNER, J., concur.

FOOTNOTES

1 Held: 
Order compensating claimant for cumulative trauma injury at the rate in effect 
on the date of last hazardous exposure sustained.

2 Held: 
Order compensating claimant at the rate in effect on the date she first suffered 
pain vacated, and cause remanded for determination of date of claimant's 
awareness of job-related injury, and award at rate that 
date.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2004 OK CIV APP 17, 84 P.3d 1074, NATIONWIDE ENVIRONMENTAL SERVICES, INC. v. BEASLEYCited 1998 OK CIV APP 43, 964 P.2d 913, 69 OBJ        1520, PARSONS v. OXY USADiscussedOklahoma Supreme Court Cases CiteNameLevel 1992 OK 31, 829 P.2d 15, 63 OBJ        682, TRW/Reda Pump v. BrewingtonDiscussed 1966 OK 202, 420 P.2d 886, ADA IRON METAL COMPANY v. TARPLEYDiscussed 2006 OK 81, 148 P.3d 874, CNA INSURANCE CO. v. ELLISDiscussed 2008 OK 15, 180 P.3d 1205, MULTIPLE INJURY TRUST FUND v. WADEDiscussed 1996 OK 94, 925 P.2d 39, 67 OBJ        2794, Rankin v. Ford Motor Co.Discussed 2009 OK 68, 221 P.3d 1289, AMERICAN AIRLINES INC. v. CRABBDiscussed 2012 OK 96, 295 P.3d 1107, WILLIAMS COMPANIES, INC. v. DUNKELGODDiscussed 1998 OK 32, 958 P.2d 156, 69 OBJ        1419, PFL LIFE INSURANCE CO. v. FRANKLINDiscussed










