Wednesday, September 23, 2009

Major Cause --- Boy Was I Wrong!

Major cause is the most puzzling of the new terms in the 2005 legislative reforms. "Major cause means the predominate [sic] cause," and the employment must be the major cause of the injury. Predominate [sic] is a synonym for major, and we have a term defined in terms of itself. What I call a circular definition which is no definition at all. That's the problem, and we traditionally look to the appellate courts for clarity.

The COCA tried to make sense of the term and establish guidelines for its application in the case of American Airlines v. Crabb. The Supreme Court then agreed to review the opinion. Originally I posted the unpublished COCA case, and then made a stab at predicting the ultimate outcome. I was one of those who unfortunately concluded that the Supreme Court would clarify the nebulous verbiage. Boy was I wrong!

The Supreme Court avoided the issue. Released yesterday, the opinion holds that the claimant's date of injury preceded the 2005 amendments; thus making it unnecessary to address the major cause dilemma. Crabb alleged a cumulative trauma injury with date of awareness in 2004. The Court held that the date of awareness is the date of injury, and therefore 2004 substantive law applies. Since the major cause requirement adds a new element of proof which must be viewed as substantive, it cannot be applied because it was enacted after the injury date.

Judge Buettner, author of the COCA opinion, held that the date of injury was the date of last exposure based on 85 O.S. §11(B)(5) and CNA Insurance v. Ellis. I agreed. How did we get it wrong? Ellis was an apportionment case and Crabb was not. Is that the distinction? Or not? More on this in a later post.

In the meantime what do we do now? For now I (meaning one of ten judges at the WCC) will follow the reasoning of my previous posting on this question. Would the claimant's current injury-producing need for medical treatment have occurred but for the workplace trauma? And so it goes.

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