State News : Oklahoma

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NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


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Oklahoma

LOTT & VALENTINE

  405-840-4848

Total number of Weeks for PPD

 In a 23-page opinion, the Oklahoma Supreme Court made a major ruling regarding how many total weeks of permanent disability benefits an injured worker can receive under the Administrative Workers' Compensation Act (AWCA), the new comp law that has been in effect since February 1, 2014.

 The AWCA limits to 350 the number of weeks of benefits for 100 % permanent partial disability (PPD). However, under the old workers' law that covered injuries up to January 31, 2014, the maximum number of weeks for 100 % disability was 520. In Mr. Cantwell's situation, the Workers' Compensation Court had awarded him 71 % disability to the body for injuries that occurred before the AWCA took effect on February 1, 2014.

 One of Mr. Cantwell's new injuries was to his hip, an injury admitted by his employer. He underwent 3 surgeries culmination in a total hip replacement. A judge of the Workers' Compensation Commission awarded Mr. Cantwell more than $30,000 PPD but followed the letter of the new law and said the insurance company did not have to pay the award because Mr. Cantwell was already over 350 weeks. The full Commission affirmed the judge and Mr. Cantwell appealed to the Supreme Court and claimed that it was unconstitutional for him not to receive up to 100 % disability for his lifetime injuries.

 In Cantwell v. Flex-N-Gate, 2023 OK 116, the Supreme Court, in a 5-4 vote, agreed with Mr. Cantwell and reversed the Commission's decision. The Court repeated the holding in other cases interpreting the AWCA that the law in effect at the time of an injury controls all aspects of a claim. The Supreme Court held that the Commission cannot use the number of weeks of benefits under the new law to determine what 100 % is, but rather must use percentages when old law injuries are present.

 The majority opinion held that the Commission's interpretation that an injured worker is prohibited from being awarded up to 100 % PPD is "constitutionally impermissible." The Court further said that a claimant has a "substantive right" to 100 % PPD and that the Commission's interpretation of the statute would affect that substantive right. A retroactive application of the 350-week limitation would violate Art. 5, Sec. 54 of the Oklahoma Constitution. 

 The opinion summed up its holding:

 "We hold that the 100 % limitation on PPD benefits controls over the number of weeks when awarding compensation for PPD where a claimant has both compensable awards for job-related injuries that occurred before February 1, 2014, and compensable awards for job-related injuries occurring after February 1, 2014."

 

 

    In a 6-3 decision, the Oklahoma Supreme Court on 4/18/23, said the Legislature intended for injured workers to have at least one year from the date of an injury in which to file a workers' compensation claim before the Workers' Compensation Commission. The case is Schumberger Technology Corp. v. Paredes, 2023 OK 42.  The case involves an un-represented claimant that later hires an attorney. 

    The Supreme Court was asked to interpret 85A O.S. Sec. 69, in pertinent part:

      "A claim...shall be barred unless it is filed...within one (1) year from the date of injury or, if the employee has received benefits under this title for injury, six (6) months from the date of the last issuance of benefits."

    Justice Gurich, writing for the majority, said the Legislature had created a method to extend payment of benefits beyond an arbitrary SOL since at least 1941. She noted that each time amendments were made to the workers' compensation law, the Legislature continued to provide for a way to extend benefits for injured workers. 

    Justice Gurich wrote, "that the SOL is "not an absolute time bar." The burden is on the employer to take affirmative action, or "arguably, even the one-year SOL will be extended." There must not only be an objection based upon the running of the SOL, but ALSO A HEARING. The opinion says otherwise the statute would be meaningless if the Commission did not have the discretion to adjust the statute of limitations based on the circumstances presented.

    The holding is that an injured worker in Oklahoma has at least one year from the date of an injury in which to file his or her claim. The six-month provision of Sec. 69 only extends the SOL in cases in which the employer admits the injury and pays benefits. If a badly injured worker is off four years when treatment is terminated, he or she has six months from that date to file a claim before the Commission.  

    In the opinion, Justice Gurich also quoted comments by Commissioner Biggs during oral argument in this case. He told defense counsel, "My argument is simple, the system works when people know when deadlines are, when the SOL starts...if they didn't have notice of when your company paid, how do they know when the clock starts?"

 The Court has created a new requirement that was not present previously.  The opinion can interpreted to require a specific date which the SOL runs and the 6-month Statute of Repose will not begin to run until the date the claimant is informed of the specific date.  An employer can no longer wait-out the SOL to assert the affirmative defense.  The Court is requiring specific notice to an un-represented claimant before a SOL defense can be asserted. 

 

The Oklahoma Workers’ Compensation Commission has unanimously agreed with the administrative law judge that there is a minimum statute of limitations of one (1) year from the date of injury to file a claim. 

85A O.S. 69(A)(1) provides that a claim shall be barred unless filed within one (1) year of the date of injury.  The second part of the statute, after the word “or” states that if a claimant has received benefits, the statute of limitation is six (6) months after the payment of benefits.  In Erasmo Paredes v. Schulumberger Technology Group, the respondent argued the employer provided three (3) months of benefits after the injury and the statute of limitations ran six (6) months after payment of benefits, therefore, shortening the original statute of limitations to nine (9) months from the date of injury.

The claimant filed a claim ten (10) months after the injury.  The Workers’ Compensation Commissioners found that the statute of limitations is the greater of the two independent statute of limitations provisions.  The opinion found the word “or” is used to express an alternative statute of limitations, with the claimant receiving the benefit of whichever of those is longer.

 

OKLAHOMA TRENDS 2021:

Supreme Court new decision on “Course and Scope”.

The Oklahoma Supreme Court in Johnson v Midwest City Del City Public Schools, 2021 OK 29, issued an opinion regarding a smoke break for a school employee.  Tobacco use on school property is not permitted.  The employee left school property to smoke on their break and was returning when they sustained an injury in the school parking lot.  The school denied the claim as not being in the “Course and Scope” of employment.  The trial judge ruled in favor of the claimant and was reversed by the Commission En Banc, and the denial was affirmed by the Court of Civil Appeals. The Supreme Court by a 6-3 decision ruled the trial judge was correct to find the injury occurred in the “Course and Scope” of employment.  The Supreme Court found that the claimant was on an authorized work break and the employer prohibited the use of tobacco on school premises.  The injury occurred as the claimant was reentering the school building.  The Supreme Court stated the school treated the parking lot as part of the facility grounds which required the claimant to leave the premises to smoke on their break; therefore, the injury was in the “Course and Scope” of employment and compensable.

Court of Civil Appeals new decision on “Major Cause”.

 

The Oklahoma Court of Civil Appeals in Bryan Linn Farms v. Arthur Monsebais, Jr., issued an opinion regarding whether “Major Cause” applies to the cause of the injury and/or the need for medical treatment.  The claimant had pre-existing arthritis to his knee.  The treating physician and the Court IME said the work injury aggravated the pre-existing condition.  Both physicians stated the claimant needed a total knee arthroplasty; however, both stated the major cause of the need for the total knee arthroplasty was the pre-existing arthritis and not the aggravation from the work injury.  The trial judge denied the request for the total knee arthroplasty and the Court of Civil Appeals stated the statutory term “Major Cause”, is the test for a compensable injury, but it does not apply to the need for medical treatment.  The Commission further stated a claimant is not required to prove that the work injury is the “Major Cause” for a specific medical treatment, only that the work injury is the “Major Cause” of a compensable injury.     

 

Changes to TTD and PPD Rates

 

The rates awarded for injuries after 1/1/21, have increased to $923.53 for temporary total disability (“TTD”.)  The maximum number of weeks for TTD was also increased, in most cases, from 104 weeks to 156 weeks. The rate for permanent partial disability (“PPD”) will increase on 7/1/21 to $360.00.

 

New Limitations Periods

 

The Statute of Limitations was shortened to 1 year from the date of injury or 6 months from the date of last benefits paid, whichever is longer.  A claim may be dismissed if after 6 months without payment of benefits, no request for a hearing has been filed.  An injured worker now has 6 months following an Order for Permanent Partial Disability to file a request to reopen a claim based on a change of condition for the worse. 

 

© Copyright 2021 by John Valentine, Lott and Valentine, PLLC.  Reprinted with permission. 

6909 N. Robinson, Suite A Oklahoma City, OK 73116  John@lottvalentine.com

OKLAHOMA TRENDS 2020:

IS COVID-19 INFECTION COMPENSABLE UNDER OKLAHOMA LAW?

The Statute that defines “Occupational Disease” is Okla. Stat. Tit. 85A section 65.  The definition is found at 65 (D)(1) and states, “…any disease that results in disability or death and arising out of and in the course and scope of the occupation or employment of the employee or naturally follows or unavoidably results from an injury…” “…A causal connection between the occupation or employment and the occupational disease shall be established by a preponderance of the evidence.”

Under 65 (D)(2) the Statute further states, “No compensation shall be payable for any contagious or infectious disease unless contracted in the course and scope of employment.” 65 (D)(3) states, “No compensation shall be payable for any ordinary disease of life to which the general public is exposed.”

It would be difficult for most employees to prove their exposure to Covid-19 occurred in the course and scope of their employment.  A preponderance of the evidence standard would require the employee to establish the exact type of exposure with a person that has tested positive for the virus.  They would also have to prove they had not been exposed anywhere other than thru their employment.  The definition stated above creates a difficult hurdle for an employee to establish causation of Covid-19 thru their employment.

The only exception may be for first responders and healthcare professional.  The employees that are battling the virus on the front lines may have a continuous exposure to the virus, and the Court is likely to grant the benefit of the doubt to that employee regarding the exposure.  In Oklahoma, the Court gives a lot of deference to first responders, and we expect any cases involving police, firefighters, or healthcare professionals to be more likely to be found compensable depending on the facts of the claim.

Changes to TTD and PPD Rates

The rates awarded for injuries have increased to $898.63 for temporary total disability (“TTD”.)  The maximum number of weeks for TTD was also increased, in most cases, from 104 weeks to 156 weeks. The rate for permanent partial disability (“PPD”) was increased to $350.00.

 

Termination of TTD and Claims for Employment Retaliation or Discrimination

Employers are allowed to terminate benefits if an injured worker abandons medical treatment for 60 days or refuses to comply with an Order from the Judge.  Jurisdiction for retaliatory discharge claims had been in the Workers’ Compensation Commission since February 1, 2014, but the latest version of the Act moved jurisdiction for those cases back to the district courts.

 

New Limitations Periods

The Statute of Limitations was shortened to 1 year from the date of injury or 6 months from the date of last benefits paid, whichever is longer.  A claim may be dismissed if after 6 months without payment of benefits, no request for a hearing has been filed.  An injured worker now has 6 months following an Order for Permanent Partial Disability to file a request to reopen a claim based on a change of condition for the worse. 

 

© Copyright 2020 by John Valentine, Lott and Valentine, PLLC.  Reprinted with permission. 

6909 N. Robinson, Suite A Oklahoma City, OK 73116  John@lottvalentine.com

OKLAHOMA TRENDS:

New Law

On May 28, 2019, the Governor of Oklahoma signed into law HB2367. An emergency provision made
the changes to the Oklahoma Workers’ Compensation Act effective at the time the Bill was signed at
2:51 p.m. The Bill deleted or modified 64 provisions of the Oklahoma Workers’ Compensation Act.

Changes to TTD and PPD

Due to space limitations, it would not be possible to cover all of the changes to the Oklahoma Workers’
Compensation Act. The rates awarded for injuries were increased to $867.71 for temporary total
disability (“TTD”.) The maximum number of weeks for TTD was also increased, in most cases, from
104 weeks to 156 weeks. The rate for permanent partial disability (“PPD”) was increased to $350.00.

Termination of TTD and Claims for Employment Retaliation or Discrimination

Employers are allowed to terminate benefits if an injured worker abandons medical treatment for 60
days or refuses to comply with an Order from the Judge. Jurisdiction for retaliatory discharge claims
had been in the Workers’ Compensation Commission since February 1, 2014, but the latest version of
the Act moved jurisdiction for those cases back to the district courts.

New Limitations Periods

The Statute of Limitations was shortened to 1 year from the date of injury or 6 months from the date of
last benefits paid, whichever is longer. A claim may be dismissed if after 6 months without payment of
benefits, no request for a hearing has been filed. An injured worker now has 6 months following an
Order for Permanent Partial Disability to file a request to reopen a claim based on a change of condition
for the worse.

Revivor

The changes create a revivor action for permanent partial disability after the death of an injured worker,
which was unclear under the previous law. Benefits are limited to the spouse and/or dependent children.

Limitation on Overpayment Credit for Wages Paid in Lieu of TTD

The previous version of the law allowed an employer which paid wages in lieu of TTD to collect an
overpayment back at the time of trial on permanent disability for any money paid in excess of the
maximum allowable amount of TTD, apparently based on the period of time or the maximum rate.
However, the latest Act does not allow the employer to collect the overpayment if the payments were
made pursuant to a collective bargaining agreement.

Jurisdiction

Oklahoma jurisdiction was not mentioned in the previous version of the law, which appeared to be a
glaring oversight. The current version clarified that the Act covers injuries in which the employee was
hired in the state or the accident occurred in the state. It does prevent double recovery in Oklahoma if
injured worker has received benefits in another state. It further extends jurisdiction to injuries that occur
on federal land.

© Copyright 2019 by John Valentine, Lott and Valentine, PLLC. Reprinted with permission.

Oklahoma-Trends-2019.pdf

Robinson v. Fairview Fellowship Home, 2016 OK 42

Holding: The Oklahoma Workers’ Compensation Commission and its administrative law judges have the power to determine whether a provision of Title 85A is constitutional.  The Court has granted the Commission the authority to decide the constitutionality of any provision related to either party.

Damien Smith v. Baze Corp, 2016 OK 41

Holding:  Scheduled members, arms, hands, feel, legs, eyes and ears are exempt for evaluation for permanent partial disability using the AMA Guides.  The deferral of permanent partial disability benefits if an injured worker returns to work is unconstitutional as a violation of due process.  The calculation of permanent partial disability to a scheduled member shall be tied to the amount in schedule and not converted to the 350-week whole man limitation.  The court did not address the constitutionality of using the AMA Sixth Edition Guides to rate permanent partial disability other than scheduled member.

Vasquez v. Dillard’s

The Workers’ Compensation Commission found the Oklahoma opt out scheme unconstitutional and inoperable in Vasquez v. Dillard’s because it treats employees differently, depending upon if their employer carries traditional insurance or opt out.

Dillard’s appealed the case to the Oklahoma Supreme Court.  The record was completed on April 28, 2016.  The Oklahoma Attorney General asked that the proceedings be stayed because the legislature is trying to fix the problem.  An objection was filed because whatever the legislature does, it does not fix the law that was in effect on the date of injury.  The case should be fully briefed by the middle of the summer with many amicus briefs filed on both sides.

 WHAT IS WORKERS’ COMPENSATION?

Workers’ compensation is an insurance program that provides compensation for disability, and medical and rehabilitation benefits, for employees injured on the job.  In the case of accidental death of an employee, it includes benefits to the employee’s dependents.  Under workers’ compensation, both workers and employers are protected.  Each covered worker has a right to benefits for a compensation injury.  In return, employers are protected from liability lawsuits outside the workers’ compensation system.

DEFINITIONS

“Compensable injury" means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. An injury, other than cumulative trauma, is compensable only if it is caused by a specific incident and is identifiable by time, place and occurrence unless it is otherwise defined as compensable in this act. A compensable injury must be established by objective medical evidence. The employee has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There is no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment.

"Compensable injury" means a cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death, only if, in relation to other factors contributing to the physical harm, a work-related activity is the major cause of the physical harm. Such injury shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the usual work of the employee, or alternately, that some unusual incident occurred which is found to have been the major cause of the physical harm.

"Consequential injury" means injury or harm to a part of the body that is a direct result of the injury or medical treatment to the part of the body originally injured in the claim. The Court shall not make a finding of a consequential injury unless it is established by objective medical evidence that medical treatment for such part of the body is required.

"Cumulative trauma" means a compensable injury which is repetitive in nature and engaged in over a period of time, the major cause of which results from employment activities, and proved by objective medical evidence.

"Light duty" describes the status of an employee when a physician has declared the employee available for work with specific temporary physical restrictions.

"Maximum medical improvement" means that no further material improvement would reasonably be expected from medical treatment or the passage of time.

"Permanent partial impairment" means any anatomical abnormality or loss of use after maximum medical improvement has been achieved which can be evaluated by a physician. Any examining physician shall only evaluate impairment in accordance with the method prescribed in Section 33 of this act. All evaluations of permanent impairment must be supported by objective medical evidence.

"Permanent total disability" means incapacity, because of accidental injury or occupational disease, to earn wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation. Loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability.

"Temporary partial disability" describes the status of an injured worker who is under active medical care that is expected to improve his or her condition and who is unable to perform some of the normal activities of his or her work or is limited to a portion of his or her normal hours of employment.


FOR INJURIES OCCURRING 11-1-13 to 1-31-14

MAX RATES:                       TTD                        PTD                        PPD

                                                $801                       $801                       $323

FOR INJURIES OCCURING 2-1-14 to 10-31-14

MAX RATES:                       TTD                        PTD                        PPD

                                                $561                       $801                       $323

FOR INJURIES OCCURRING 11-1-14 to 10-31-15

MAX RATES:                       TTD                        PTD                        PPD

                                                $571.55 $816.50 $323


OPT-OUT

 In 2013, Oklahoma became the second state to pass opt-out, official the Oklahoma Employee Injury Benefits Act (OIBA).  The statute allowed employers to become a “Qualified Employer” and develop their own benefit plan.  The statute also required the Insurance Commissioner to scrutinize opt-out plans to make certain that they provide the same type of benefits and the same statute of limitations as regular compensation.

 Oklahoma Insurance Department

http://www.ok.gov/oid

 

                                                              FOR INJURIES OCCURING PRIOR TO 2-1-14

OKLAHOMA COURT OF EXISTING CLAIMS
L. Brad Taylor, Presiding Judge
J. Michael Harkey, Court Administrator
Katrina Stephenson, Court Clerk

SIX JUDGES

www.cec.ok.gov

 

Oklahoma City Location

Tulsa Location

1915 N. Stiles Avenue, Suite 127

440 S. Houston, Suite 210

Oklahoma City, OK 73105

Tulsa, OK 74127

(405) 522-8600

(918) 581-2714

(800) 522-8210 (In-State Toll Free)

                                                                 FOR INJURIES OCCURING AFTER 2-1-14

                                             OKLAHOMA WORKERS’ COMPENSATION COMMISSION

COMMISSIONERS

                                                                                     ROBERT GILLILAND

DR. LEOY YOUNG

MARK LIOTTA

TROY WILSON, SR

FIVE ADMINISTRATIVE LAW JUDGES 

Oklahoma City Location

Tulsa Location

1915 N. Stiles Avenue

440 S. Houston, Suite 212

Oklahoma City, OK 73105

Tulsa, OK 74127

(405) 522.3222

(918) 295-3732

(800) 522-8210 (In-State Toll Free)

                                                                                   www.ok.gov/wcc

Oklahoma Department of Labor

                                                                                http://www.ok.gov/odol

Notice of Compensation Rate Changes:

 

The maximum compensation benefit rate for work-related injury and illness occurring during the periodbeginning November 1, 2012 and ending October 31, 2013,has changed to$771 per week for Temporary Total Disability (TTD), Permanent Total Disability (PTD), and Death.

 

The maximum compensation benefit rate for work-related injury and illness occurring during the periodbeginning August 27, 2010 and ending August 26, 2015,remains at$323 for Permanent Partial Disability (PPD)/Permanent Partial Impairment (PPI).

OVERVIEW OF OKLAHOMA WORKERS’ COMPENSATION

 

 

WHAT IS WORKERS’ COMPENSATION?

 

Workers’ compensation is an insurance program that provides compensation for disability, and medical and rehabilitation benefits, for employees injured on the job. In the case of accidental death of an employee, it includes benefits to the employee’s dependents. Under workers’ compensation, both workers and employers are protected. Each covered worker has a right to benefits for a compensation injury. In return, employers are protected from liability lawsuits outside the workers’ compensation system.

 

DEFINITIONS

 

“Compensable injury" means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. An injury, other than cumulative trauma, is compensable only if it is caused by a specific incident and is identifiable by time, place and occurrence unless it is otherwise defined as compensable in this act. A compensable injury must be established by objective medical evidence. The employee has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There is no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment.

 

"Compensable injury" means a cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death, only if, in relation to other factors contributing to the physical harm, a work-related activity is the major cause of the physical harm. Such injury shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the usual work of the employee, or alternately, that some unusual incident occurred which is found to have been the major cause of the physical harm.

 

"Consequential injury" means injury or harm to a part of the body that is a direct result of the injury or medical treatment to the part of the body originally injured in the claim. The Court shall not make a finding of a consequential injury unless it is established by objective medical evidence that medical treatment for such part of the body is required.

 

"Cumulative trauma" means a compensable injury which is repetitive in nature and engaged in over a period of time, the major cause of which results from employment activities, and proved by objective medical evidence.

 

"Light duty" describes the status of an employee when a physician has declared the employee available for work with specific temporary physical restrictions.

 

"Maximum medical improvement" means that no further material improvement would reasonably be expected from medical treatment or the passage of time.

 

"Permanent partial impairment" means any anatomical abnormality or loss of use after maximum medical improvement has been achieved which can be evaluated by a physician. Any examining physician shall only evaluate impairment in accordance with the method prescribed in Section 33 of this act. All evaluations of permanent impairment must be supported by objective medical evidence.


 

 

"Permanent total disability" means incapacity, because of accidental injury or occupational disease, to earn wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation. Loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability.

 

"Temporary partial disability" describes the status of an injured worker who is under active medical care that is expected to improve his or her condition and who is unable to perform some of the normal activities of his or her work or is limited to a portion of his or her normal hours of employment.

 

 

 

 

OKLAHOMA WORKERS’ COMPENSATION COURT
L. Brad Taylor, Presiding Judge
Michael Clingman, Court Administrator
Joyce Sanders, Court Clerk
www.owcc.state.ok.us

Oklahoma City Location

Tulsa Location

1915 N. Stiles Avenue

440 S. Houston, Suite 210

Oklahoma City, OK 73105

Tulsa, OK 74127

(405) 522-8600

(918) 581-2714

(800) 522-8210 (In-State Toll Free)

 

 

Useful websites:

Oklahoma Workers’ Compensation Court

http://www.owcc.state.ok.us

 

Oklahoma Insurance Department

http://www.ok.gov/oid

 

Oklahoma Department of Labor

http://www.ok.gov/odol