Governor Signs Oklahoma New Comp Bill

  Oklahoma Governor Kevin Stitt today signed into law HB 2367, the 2019 workers' compensation bill. An emergency clause was attached, so provisions of the bill are effective immediately for injuries which occur after today.  The following is a summary of the bill that I sent when the Legislature completed action on the bill.

    At the beginning of the legislative session, Oklahoma's workers' compensation system faced three problems,  (1) Oklahoma workers were receiving the lowest benefits in the nation because of the 2013 reform act; (2) the Multiple Injury Trust Fund (MITF), a fund that provides small weekly payments to 3,000 of the state's most disabled workers, was running out of money and had an unfunded liability of more than $400 million. If we didn't do something, that burden would fall on taxpayers; and (3) the Court of Existing Claims (CEC), which handles claims for injuries that occurred before February 1, 2014, was set to expire in 2020. The Supreme Court has ruled that as a result of the 2013 law, a court must adjudicate older claims and the new Workers' Compensation Commission has authority over injuries that occurred after February 1, 2014. The present law gave the Governor no power over the appointment of judges for the Court of Existing Claims that was created in 2013.

 

    For many weeks, the Governor's office, House Judiciary Chairman Chris Kannady, Senate Judiciary Chairman Juli Daniels; representatives of the State Chamber of Commerce, injured workers, and several major Oklahoma companies; and Labor Commissioner Leslie Osborn, worked tirelessly on a compromise that might help solve all four problems.

     In the end, the stakeholders compromised their positions to reach a reasonable solution.

 

    (1) For employers, HB 2367 allows the termination of benefits if an injured worker abandons medical treatment for 60 days or refuses or ignores a Judge's order for medical treatment; retaliatory discharge claims are moved back to district court; double recovery is prohibited for workers who began their claims in another state; provides that a work activity must be the "major cause" of an injury;  allows for mandatory dismissal of a claim if a worker does not pursue the claim within a short time period; eliminates filing of unnecessary paperwork by employers; and provides that injury reports filed by employers are confidential unless an official claim is filed.

 

    (2) Benefits for Oklahoma's injured workers will be raised by approximately 22 percent. For higher paid workers who have lost nearly $1,000 a month while the doctor has kept them off work because of an injury, the maximum temporary disability income benefit is raised from $602 to $867.71 per week. In addition, permanent disability rates are raised for the first time since 2010. This increase moves Oklahoma from number 51 in benefits, including the District of Columbia, to number 43.

 

    (3) Eligibility criteria for claims against the Multiple Injury Trust Fund have been made much stricter for the future. The period of time benefits can be paid are reduced to age 65 or 8 years, whichever is longer. Insurance carriers, own risk employers, and injured workers will share the burden by making larger contributions into the MITF, including 3 percent to be deducted from injured workers' compensation settlements or awards. The statute of limitations to file a claim is reduced from two years to one year. A worker must be at least 50 % disabled from previous injuries before becoming eligible to file a claim against the MITF after the latest injury. The MITF director will report directly to the Governor.

 

    (4) The Governor will appoint one judge of the Court of Existing Claims, from a list of 3 provided by the Judicial Nominating Commission, to serve from July 1, 2020, to July 1, 2022, with confirmation by the State Senate. The Governor will appoint an Administrator of the CEC on January 1, 2020. The current Presiding Judge is appointed through July 1, 2020.

-- Bob Burke 5/28/2019

Intoxication Case

     Division IV of the Oklahoma Court of Civil Appeals has released for publication an interesting decision involving a marijuana intoxication defense and what parameters the Workers' Compensation Commission has in its review of an ALJ opinion.

    The case is DILLON ROSE V. BERRY PLASTICS CORP., Supreme Court No. 116,911. The opinion has not yet made it, at this hour, to the OSCN website.

    The claimant's hand was crushed in a "guillotine" machine in the plastics plant. The employer at first provided medical care, but then denied the claim when claimant tested positive for marijuana. At trial, the claimant testified he had smoked marijuana at 10 p.m. the night before, but came to work on time, attended a safety meeting, talked to a supervisor and co-employees, and worked at his regular machine until the first break. Then he went to another machine where a piece of plastic was stuck. There was video of the claimant and another worker trying to get the machine unstuck. Claimant put his hand in the machine, and to his dismay, his co-worker hit the on switch out of sight from the claimant. The injury occurred 10 hours after the claimant smoked marijuana.

    The ALJ found the claim compensable, finding that the claimant overcame, with clear and convincing evidence, the rebuttable presumption of non-compensability of an injury in which drugs are found in the system of the claimant. 85A O.S. Sec. 2(9)(b)(4). The ALJ found there was no evidence presented by the Employer which would in any way hint that claimant was intoxicated. 

    The Workers' Compensation Commission reversed the ALJ, opining that the claimant did not meet its burden to overcome the presumption. The Court of Civil Appeals reversed the Commission and reinstated the compensability order of the ALJ.

    Interestingly, the appellate panel clearly established what I believe is a newly-defined Standard of Review for the Commission. In heavily criticizing the WCC's opinion based upon what COCA calls inaccurate reading of the evidence, Judge Jerry Goodman and the unanimous panel ruled:

(1) The Commission can only reverse or modify an ALJ opinion if is against the clear weight of the evidence;

(2) The Commission, acting in its appellate capacity, is not "entitled to substitute its judgment for that of the agency as the weight of the evidence on fact questions. On fact questions, the Commission will examine the record only to determine if the evidence is supportive of the order and possesses sufficient substance as to induce a conviction as to the material facts."

(3) The Commission is not to draw conclusions from the evidence, but only to determine if there is sufficient evidence to support the ALJ opinion. There was no evidence presented, COCA said, that refuted claimant's complete description of the accident.

(4) In an intoxication presumption case, the lack of evidence that corroborates claimant's unrefuted testimony as to how the accident occurred, coupled with the lack of any contrary evidence, is sufficient to rebut the presumption imposed by statute.

(5) The Commission is not allowed to rule on the weight and admissibility of evidence, but merely weigh the evidence admitted to determine if it supported the ALJ's order. 

--Bob Burke

USE OF AMA SIXTH EDITION GOES TO OKLAHOMA SUPREME COURT

Finally, nearly 3 years after the effective date of the new comp law in Oklahoma, cases are ripe for appeal to the Supreme Court on the issue of exclusive and mandatory use of the latest edition of the AMA Guides for the evaluation and award of Permanent Partial Disability for non-scheduled injuries, or injuries to the body as a whole.

 

   Two appeals were filed the morning:  Robert Hill v. American Medical Response, Supreme Court No. 115558; and Jared Upton v. City of Tulsa, Supreme Court No. 115557.

 

    In addition, motions were filed, asking the Supreme Court to:

 

(1) retain the appeal, rather than assign to the Court of Civil Appeals;

(2) expedite the appeal because it is estimated that up to 1,000 cases are pending in body as a whole PPD cases; and

(3) combine the cases for disposition.

 

    Claimants are alleging that the exclusive and mandatory use of the AMA Guides is unconstitutional for several reasons:

1. The mandatory use of the AMA Guides under Title 85A is an unconstitutional restraint upon an administrative law judge, the trier of fact.

2. Mandatory use of the AMA Guides is an impermissible legislative predetermination of an adjudicatory scientific fact.

3. Under the doctrine of delegata potestas non potest delegarai, the mandatory use of the AMA Guides constitutes an unlawful delegation of the state’s legislative power to a private, nongovernmental entity, the American Medical Association.

4. The use of the AMA Guides to determine permanent partial disability is a denial of due process because such use shifts the economic burden to the injured worker without a legitimate state interest.

5. The use of the AMA Guides to determine permanent partial disability fails to provide an adequate remedy at law.

6. The use of the AMA Guides, coupled with other cuts in benefits, has destroyed the Grand Bargain, and exclusive remedy in workers’ compensation is dead.

7. The use of the AMA Guides is contrary to the Daubert standard for expert evidence required by the AWCA.

  

Bob Burke, attorney and author
308 N.W. 13th Street, Suite 200B
Oklahoma City, OK 73103
bob@bobburkelaw.com

Case Law Updates

The challenges filed by Bob Burke to sections of the new law can now be found under the Links section of our website.  Enjoy!

TTD for Gap Period -- from Bob Burke

 The limitation of Temporary Total Disability (TTD) for the "gap" period for injuries that begin as a non-surgical soft tissue case, but turn into a surgery case, has been interpreted in Atwood Distributing v. Darla Jean Camp, Commission  # CM-2014-05687X. ALJ Shane Curtin and a unanimous Workers' Compensation Commission held that once an injured worker has surgery, the TTD limitation in 85A O.S. Section 62 no longer applies and that the worker is due a maximum of 104 weeks per Section 45, including the "gap" between the soft tissue limited TTD and the date of surgery.  The Commission order was strong and straightforward, "We find a compensable 'surgical' soft tissue injury entitles an employee to TTD for any period of time during which an employee is unable to work, subject to the general limits of Section 45."

The employer has appealed the decision to the Oklahoma Supreme Court, No. 114575.