Exterran Holdings, Inc. v. Abonza

537 P.3d 152

EXTERRAN HOLDINGS, INC., and Zurich American Insurance Co., Petitioners,

v.J. Asuncion (Soto) ABONZA, and the Workers' Compensation Commission, Respondents.

Case No. 120,569

Court of Civil Appeals of Oklahoma, Division No. 4.

Filed: August 30, 2023

Mandate Issued: September 28, 2023

Michael A. Fagan, Heather A. Lehman Fagan, Jacob P. Jean, FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C., Oklahoma City, Oklahoma, for Petitioners

Bret A. Unterschuetz, Tulsa, Oklahoma, for Respondent

OPINION BY HUBER, JAMES R., JUDGE:

¶1 Exterran Holdings, Inc. and Zurich American Insurance Co. (collectively, Employer) seek review of an order issued by the Workers' Compensation Commission en banc (Commission), reversing and remanding an Administrative Law Judge (ALJ) decision and finding J. Asuncion (Soto) Abonza (Claimant) sustained a compensable occupational disease (silicosis) and a compensable cumulative trauma injury in the course and scope of his employment.

BACKGROUND

¶2 Employer manufactures natural gas compression equipment for the oil and gas industry. Claimant worked for Employer for approximately eight years. His duties included sandblasting and painting oil and gas related equipment. On September 24, 2015, Claimant ceased working for Employer after becoming fatigued and having difficulty breathing. He was subsequently diagnosed with silicosis and interstitial lung disease.

¶3 Claimant filed two claims for compensation alleging an injury to his lungs and respiratory system as a result of occupational disease and cumulative trauma. On December 10, 2015, Claimant filed a CC-Form-3 alleging cumulative trauma with injury to his lungs and respiratory system due to exposure to smoke, sand, and chemicals (Claim Number CM-2015-08100F). He filed a second claim, CM-2016-03867H, on June 16, 2016, alleging an occupational disease of silicosis. Employer denied Claimant sustained a compensable injury. The Commission consolidated these claims on August 18, 2016.

¶4 In addition, Claimant filed these claims in the Court of Existing Claims (CEC). The Commission entered an order holding his claims before the Commission in abeyance until resolution of the claims before the CEC. The CEC cases were subsequently dismissed. Judge Michael W. McGivern found Claimant's date of awareness in both claims was in September 2015, and, therefore, the CEC did not have jurisdiction and the Commission was the proper forum.

¶5 Claimant appealed the CEC decision. On appeal, the Oklahoma Court of Civil Appeals sustained the decision.¹ The Court found that the CEC "made no determination regarding the merits of Claimant's claims" and "merely decided that jurisdiction to adjudicate such claims lies with the Workers' Compensation Commission." The Court determined that the Commission was the appropriate forum to address the merits of Claimant's workers' compensation claims.

¶6 The Commission entered an Order Lifting Abeyance filed on December 12, 2019, allowing the claims to proceed. An ALJ conducted a hearing on January 26, 2021, on the issue of compensability for injury to the lungs and respiratory system. Claimant asserted an injury due to cumulative trauma and occupational disease - silicosis. Claimant requested temporary total disability benefits and medical treatment. He reserved the issues related to permanent total disability benefits.

¶7 The parties agreed the date of awareness was September 24, 2015, but disagreed on the date of last exposure. Claimant asserted a date of last exposure of September 24, 2015, while Employer claimed the date of last exposure was in 2009-10 when Employer stopped using white sand and began using black sand.

¶8 Employer first argued Claimant was barred by res judicata from pursuing his claims before the Commission because he previously raised the issues before the CEC. Second, Employer argued Claimant's claim for occupational disease was time barred pursuant to 85A O.S. Supp. 2015, § 69(A)(2). Employer also argued Claimant did not sustain a compensable cumulative trauma injury or occupational disease and denied Claimant had any harmful exposure resulting in injury while working for Employer. Employer denied temporary total disability benefits and medical treatment.

¶9 At trial, Claimant testified, via a translator, that he worked as a sandblaster for Employer from 2007 until September 24, 2015. His job responsibilities included sandblasting and painting gas pipes for refineries. Prior to working for Employer, Claimant worked as a painter for ten years for a different employer but had not previously worked as a sandblaster.

¶10 While working for Employer, Claimant worked 40 hours per week, four days a week. He worked approximately 10 to 11 hours per day. During this time, Claimant sandblasted three days per week and painted one day a week.

¶11 When he began working for Employer, Claimant worked with white sand. Claimant stated there was a lot of white sand and dust in the air when he removed his mask, especially in the Tulsa facility. Claimant testified he removed the mask approximately five times per day and that he inhaled the sand daily.

¶12 Claimant explained that he sandblasted with the white sand containing silica in an enclosed space in Building 7, located in Tulsa, and that in an enclosed space, "the dust goes in. It just can't go anywhere."² The silica dust got under his mask when he worked in the enclosed area.

¶13 The parties agree that Employer switched from using white sand to black sand in 2009 or 2010. Claimant testified the black sand was more of a metal-based substance but still created dust, although not as much dust as the white sand. Regardless, Claimant inhaled this dust while working.

¶14 While painting, Claimant mixed the paint and painted. He also used paint thinner during the painting process. Claimant stated he wore a face shield while painting and he inhaled some of the fumes. He also sanded the items to be painted.

¶15 Claimant testified he had no previous breathing or respiratory problems and that he was not aware that he had any lung issues prior to September 24, 2015.

¶16 In addition, Claimant testified he had never smoked and had not been exposed to "any kind of dust or anything like that" outside of work. Claimant testified he began having breathing problems and became fatigued on September 24, 2015. He sought treatment at Access Medical Care. On September 26, 2015, Claimant was transported by ambulance to St. John's Medical Center, where he was examined, diagnosed with a large left-sided pneumothorax, and received a chest tube. On September 30, 2015, Robert Blankenship, M.D., a thoracic surgeon, performed surgery to repair Claimant's pneumothorax and did a biopsy of Claimant's lung tissue. Dr. Blankenship diagnosed Claimant with silicosis and interstitial lung disease. Claimant has not worked since September 24, 2015.

¶17 On cross-examination, Claimant testified about Employer's safety requirements. According to Claimant, Employer required Claimant to wear protective equipment while sandblasting and painting. While sandblasting, Claimant wore a full helmet with a filter. The helmet attached to a breathing apparatus that brought in air. Claimant testified Employer had a third-party test the respirator equipment to confirm the equipment fit properly and performed correctly. Claimant used the same helmet, mask, and breathing apparatus when sandblasting with white sand and with black sand. Claimant wore a face shield when painting instead of the full helmet. Employer also had exhaust fans that sucked the dust out of the building at the Broken Arrow facility but not at the Tulsa facility.

¶18 Claimant stated he did not recall Employer receiving any OSHA violations or warnings regarding dust or harmful substances in the area where he worked.

¶19 Claimant testified that he had x-rays of his chest and thoracic spine on March 2, 2011, because he was experiencing mobility issues. Claimant testified on cross-examination that no one told him that his 2011 x-ray revealed evidence of chronic pulmonary disease and he did not become aware of this until 2015. He also stated that, although there was a note from a physician saying Claimant should have another x-ray in two weeks, Claimant was unaware he was supposed to have a follow-up x-ray in 2011.

¶20 On cross-examination, Claimant denied giving Dr. Blankenship a history of breathing issues or lung problems. Claimant admitted that Dr. Blankenship prescribed Claimant work restrictions that he could not work around dust and was advised to protect his lungs.

¶21 In the ALJ's order filed on February 25, 2021, the ALJ rejected the Employer's argument that Claimant's claims before the Commission were barred by the doctrine of res judicata. The ALJ recognized that Claimant had pursued the same theories of liability before the CEC but noted that the CEC did not rule on the merits. Next, the ALJ found that Claimant's last date of exposure was in 2009 when Claimant last worked with white sand. The ALJ found Claimant filed his claim more than three years from the date of his last injurious exposure and, therefore, his occupational disease claim was not timely filed pursuant to 85A O.S. Supp. 2015, § 69(A) (2)(a)-(b). The ALJ denied and dismissed Claimant's occupational disease claim. The ALJ found Claimant did not sustain a compensable occupational disease or a cumulative trauma injury to his lungs and respiratory system and denied his claim for compensation.

¶22 Claimant appealed to the Commission. By order entered on June 24, 2022, the Commission found the ALJ's decision denying compensability was against the clear weight of the evidence and contrary to law. The Commission found Claimant was exposed to silica until he stopped working for Employer in September 2015 and, therefore, his claim was timely filed. In addition, the Commission made the following findings:

2. Claimant sustained a compensable occupational disease (SILICOSIS ), with a date of awareness and a date of

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