New workers' compensation reform bill

 The Oklahoma House of Representatives this week passed a workers' compensation reform bill. HB 3897 was authored by Representative Chris Kannady, chairman of the House Judiciary Committee. The State Senate authors are Brent Howard, chairman of the Senate Judiciary Committee, and Roger Thompson, chairman of the Senate Appropriations Committee. The House passed the bill 90-3 but the title is stricken so any changes made in the Senate probably will end up being decided by a conference committee.

The legislation has no major surprises but there are good changes for both employers and injured workers. Here is a simplistic overview:

1. For cumulative trauma injuries, the old 90-day rule would be reinstated. The employer or carrier with the last 90 days of injurious exposure is liable for the claim. At present, employers from 10 years ago are being added to the claims. This would prevent several former employers spending money to defend a simple cumulative trauma claim.
2. Would eliminate a district court action based upon intentional tort, the old Parret cause of action. A worker's only remedy would be in workers' comp.
3. Removes any loss of earnings criteria from the definition of permanent partial disability.
4. Raises the maximum PPD rate to 40 % of the state's average weekly wage effective next January 1. At this year's state AWW, the increase would be to $381. The PPD rate would change each January 1 based upon the official state AWW.
5. Provides a $5,000 benefit to heirs of an unmarried and childless worker who is killed. This is a legislative response to the Supreme Court decision that allowed the parents of a worker killed on the job to pursue a district court action because there was no remedy in comp.
6. For travel reimbursement, a worker must submit mileage within 1 year of the date of travel or it is barred. The employer would have only 60 days to pay the travel. If not timely paid, the employer is subject to a penalty in the amount of 50 % of the mileage if a hearing is required.
7. Clarifies statute of limitation as one year from the date of injury....or six months from the payment of indemnity or date of service for medical treatment. The six months provision can extend the initial SOL as long as the employer or carrier provides, under workers' compensation, indemnity or medical care. Once the indemnity and medical care ends, the worker has six months to file a Form 3.
8. Allows an employer or carrier to request a change of condition for the better. That authority was in the WC Code but does not appear in the Administrative Workers' Compensation Act.
9. Would extend the Court of Existing Claims for five years to July 1, 2027. The CEC would continue with just one judge. The position would be filled by the judge serving when the reform bill becomes law.

 THE BILL IS NOW IN THE STATE SENATE.

Bob Burke, Attorney and Author

308 N.W. 13th Street, Suite 200B

Oklahoma City, OK 73103

The Future of the CEC

    Oklahoma Governor Kevin Stitt has appointed Judge Margaret Bomhoff to be the one judge of the Court of Existing Claims effective July 1. Judge Bomhoff's nomination must be confirmed by the State Senate. Because the Oklahoma Supreme Court has ruled that claims for injuries before February 1, 2014, must be handled by the former Workers' Compensation Court, now called the Court of Existing Claims, the Legislature extended the Court, but with only one Judge.

   Judge Bomhoff has served as a worker's compensation judge for eight years. She was originally appointed by Governor Mary Fallin and was the first workers' compensation judge in state history whose nomination was confirmed by the State Senate. Before being appointed judge in 2012, Bomhoff was a highly-respected workers' compensation defense lawyer at Fellers Snider in Oklahoma City.

   The second part of the CEC team for the future is Dustin Davison, appointed by Governor Stiff in January as the Administrator of the CEC. For several years, Dustin was an Assistant Administrator under Mike Harkey. Dustin knows the CEC operation from top to bottom.

   I have no doubt that Judge Bomhoff and Dustin will work closely and cooperatively with the Workers' Compensation Commission as we enter a new chapter of workers' compensation in Oklahoma.

--Bob Burke 3/3/2020

New Attack on PPD

Even though the Oklahoma Supreme Court has previously opined that the Legislature has the constitutional right to require permanent partial disability (PPD) awards to be based upon the "latest edition" of the AMA guides, a new angle of attack is the subject of two pending cases.....Gordon George v. Umicore Autocat USA, Inc., Supreme Court number 118115; and Amanda Byrd v. Mazzio's LLC, being filed tomorrow.

   The two cases allege that the "latest edition" of the AMA Guides that is required by the Administrative Workers' Compensation Act is actually the Fifth Edition, because the Physicians Advisory Committee never approved the Sixth Edition. In fact, the PAC rejected the use of the Sixth Edition after it came out in 2009. These latest cases also allege the Hill decision on the AMA Sixth was premature because of the lack of PAC approval. 

   The 2019 Legislature changed the "latest edition" to the "Sixth Edition," but these two cases could affect cases in the first five years of AWCA jurisdiction.

​---Bob Burke (8/5/19)

TTD and PTD Rate

     For work-related injuries in Oklahoma that occurred after 2:51 p.m. May 28, 2019, the maximum rate for Temporary Total Disability (TTD) and Permanent Total Disability (PTD) is $867.71, not $853.00 as I previously  reported (*the analysis document has been corrected).

 2:51 p.m. is the exact time Governor Kevin Stitt signed the bill, making it effective immediately.

 

    If you want a copy of the bill as signed by the Governor, it can be downloaded from the links section of this website, or from the Oklahoma Secretary of State's website. HB 2367, signed May 28, 2019.

--Bob Burke

House Bill 2367

 Because most provisions of the new comp law, HB 2367, took effect yesterday, May 28, the day it was signed into law by the Governor, it is important to note immediate changes. The new law was a true CLEAN-UP BILL.  ATTACHED IS A PROVISION-BY-PROVISION SUMMARY THAT SHOWS THAT THE 2019 LEGISLATURE DELETED OR MODIFIED 64 UNCONSTITUTIONAL PROVISIONS THAT EITHER HAD BEEN RULED UPON BY APPELLATE COURTS....OR PROVISIONS THAT THE WORKING GROUP BELIEVED WOULD ULTIMATELY BE RULED UNCONSTITUTIONAL.

 

     New rates for TTD and PPD went into effect for injuries that occurred yesterday.  So did a revised statute of limitations and many other substantive and procedural changes. For example, the clarified six month limit on change of condition, which has been ruled in the past as procedural, takes effect immediately. Court reporters may now make the record on either CEC or Commission cases.

    However, the changes to the Multiple Injury Trust Fund do not take effect until later.  The eligibility criteria only applies to a last injury that occurs after July 1, 2019. The additional assessments against insurance companies and own risks are effective October 1, 2019. The 3 % assessment against claimant on PPD and PTD orders applies to last injuries that occur after October 1, 2019.

--Bob Burke

The Bill and Analysis can be found in the link section of the website