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.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
OKLAHOMA TRENDS AUGUST 2024
CO-WORKER LIABILITY
The Oklahoma Supreme Court has said a co-worker can be sued by an injured worker in a third-party district court action. The case is Bayouth v. Dewberry, 2024 OK 42.
A fundamental premise of workers' compensation/tort law is that exclusive remedy prevents an injured worker from maintaining a third-party action for the negligence of a co-worker. BUT THIS CASE IS DIFFERENT.
On his day off, Employee A had an argument with Employee B and shot and injured him. The incident occurred at the place of their employment. Employee B filed a third-party action in district court against Employee A. An Oklahoma County district judge granted summary judgment for the estate of Employee A, citing the exclusivity of workers' compensation and a co-worker's immunity from third party suit.
In a 7-2 decision, the Supreme Court said "an employee, who injures another employee, must be acting within the course and scope of their employment when the incident occurs in order to receive the protection of the exclusive remedy provision" of the Administrative Workers' Compensation Act.
The district judge did
not make a ruling on whether Employee A was acting within the course and scope
of his employment. There is a dispute about that issue, so the case has been
remanded to the district court judge to opine on that issue.
INDEMINITY
PROVISIONS SUBCONTRACTORS OVERRULLED
The Oklahoma Supreme
Court may have dealt a fatal blow to so-called "indemnity" provisions
in contracts with subcontractors in work-related injury cases. Such indemnity
agreements are common in the oil and gas industry, the employee leasing
business, and in other areas. We have also seen provisions in contracts of
janitorial services that indemnify the building owner in the event of
third-party liability.
The case is Knox v.
Oklahoma Gas and Electric Co., 2024 OK 37. Seven justices concurred in the
result, two dissented in part, and two justices dissented to the entire
decision. Justice Edmondson wrote the majority opinion.
The facts—OG&E contracted with sub "A" to develop property for a solar power facility. Sub "A" contracted with Sub "B" who contracted with Sub "C" who was the employer of Mr. Knox who was killed in an accident while performing construction work. His widow brought a wrongful death action in district court. The widow received statutory workers' compensation benefits.
As is common in oil field operations, the Employer (Sub "C) signed a contract agreeing to indemnify Sub "B" for any sums paid out in a third-party claim.
Here is what we believe the opinion holds:
(1) An employee cannot sue his or her employer BOTH in workers' comp and under common law negligence theories. (That's exclusive remedy) The dual capacity doctrine does not appear in the Administrative Workers' Compensation Act.
(2) An employer cannot be held liable twice, under workers' comp, and by an indemnity agreement with another party. The Supreme Court opinion reasons that an employer cannot agree to indemnify a third party guilty of negligence if the third-party claim is based upon the same physical injury covered by workers' compensation. An employer is allowed to agree to indemnify contractors above in the case of an INTENTIONAL TORT, just not in negligence cases.
Parties other than the employer can still be sued based upon common law negligence in a traditional third-party case. But those third parties cannot look to a subcontractor who is the employer for reimbursement for any negligence damages, even though the employer agreed to such terms.
There have been claims in which a drilling contractor, the employer of the injured worker, signed an indemnity agreement with the owner of the oil or gas well. Because of the indemnity agreement, the drilling contractor paid BOTH the comp claim and the third-party negligence tort claim. It appears this will no longer be the case.
This decision could be far-reaching. Insurance risk managers must look at a general contractor for possible third-party liability because indemnity agreements won't prevent damage awards any longer.
Oklahoma Trends April 2024
Covid Appeal
The Workers' Compensation Commission will hear an employer's appeal of an order by an administrative law judge finding that a claimant's contraction of COVID-19 is compensable as an on-the-job injury. The claimant also is appealing the order because the judge limited TTD in the case to eight weeks.
The claimant worked for a hospital in Tulsa. As an RN, she was treating a COVID patient who tore the nurse's A-95 mask off, screamed at her, and spit in her face and mouth. The claimant reported the incident. Ten days later, she had a high fever and tested positive for COVID, was sent home from work, and grew progressively worse.
The claimant now has LONG COVID and has
developed diabetes, high blood pressure, lung issues, and heart problems.
An Independent Medical Examiner appointed in the case found that all these
conditions were a result of the COVID infection. The judge followed the
report and found a single event injury of contracting the COVID with a
consequential injury to the heart, lungs, and diabetes.
The judge found that the claimant was required
to have blood tests and other diagnostics every 90 days as an ICU nurse and
that she did not have diabetes, high blood pressure, or heart problems before
COVID. The judge ordered the employer to pay for medical treatment for the
consequential injuries.
The judge also found that COVID is NOT an
"ordinary disease of life" to which the general public is exposed.
85A O.S. Sec. 65(D)(3) provides that ordinary diseases of life are not
compensable under workers' compensation law. The judge wrote, "The facts
of this case certainly are not ordinary and the exposure was not the same as
that of the general public. Claimant's job placed her at increased risk of
contracting COVID-19."
After finding the injury compensable, the judge
awarded only eight weeks of TTD, citing Section 62 of the AWCA that limits TTD
to eight weeks in "soft tissue" injuries.
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
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.
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
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
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) |
Oklahoma Department of Labor