MADALENE WITTERHOLTCHRISTINA TOON

OKLAHOMA WORKERS’ COMPENSATION

CODE

THE COURTS

• Ten Judges with at least 3 in Tulsa

• 8-year terms

• Allows hearings in any city of the state under certain circumstances

• Requires Courts to make decisions within 60 days of case submission.

Injuries receive more definitions

• "Compensable Injury" Employee has a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment.

• "Consequential Injury" meaning injury or harm that is a direct result of the injury or medical treatment to the part of the body originally included in the claim.

HEARTS

• Heart claims (including cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction) compensable only if in relation to other factors contributing to the physical harm caused a work related activity is the major cause of the physical harm. It will only be compensable if shown that the exertion of the work that caused the disability or death was unusual in comparison to the usual work of the employee or that some unusual incident occurred that was the major cause

Defenses• A rebuttable presumption that a single

event injury is not work related unless reported or medical attention was provided within 30 days.

• Notice required within 90 days of separation from employment for an occupational disease or cumulative trauma injury.

THEDRUG DEFENSE

Employees use of such toxins must be the major cause of the injury or accident.

Employee shall prove by preponderance of the evidence that the use of the toxins was not the major cause of the injury or accident.

No employee who tests positive for the presence of substances shall be eligible for compensation.

When to Provide Medical Care

• An employer is now required to provide an employee reasonable and necessary medical care after actual knowledge of an injury within seven days unless in the case of an emergency.

• Providing of medical care shall not be construed as an admission of compensability.

What to Provide

• Employer selected physician shall become the treating physician.

• No change of physician can be authorized unless authorized medical care has been provided for that part of the body for 180 days prior to the date of filing the application.

• Maximum of two changes of physicians allowed in one claim regardless of the number of body parts injured.

How long to provide Medical

• The scope and duration of medical treatment will be governed by the Official Disability Guidelines “ODG”

• The Physician’s Advisory Committee shall adopt rules if the ODG does not cover, especially in spine and pain management.

• Emergency exception or preauthorized by the payor or Court.

Continuing Medical Maintenance

• Will not be awarded by the Court unless recommended by the treating doctor at the time claimant reaches MMI or by an Independent Medical Examiner.

• IME's can still be appointed to determine the nature and extent of continued medical maintenance.

• Must be within the parameters of the physicians advisory committee

Medical Rules

• MRI testing require that the MRI unit used produce a yield strength equal to or greater than 1.0 Tesla and specifies the reimbursement rate for MRI scans.

•If the doctor owns the joint he must reveal it!

•Drug Prescriptions must comply with the National Drug Code.

Revenge of the Nerds

• Once the employee has missed more than two appointments, if physicians charge for missed appointments by employees then the employer or insurance company can charge the employee for the missed appointment.

Medical Evidence

• The opinion for PPD must be based solely on criteria established by the AMA guidelines for all parts except scheduled members.

• Examining physician may not deviate from the guides except as specifically provided for in the guides.

• Physicians advisory committee may recommend the adoption or methods or system to evaluate permanent impairment that may deviate from or be in place of the guides.

Medical Evidence

• With regard to previous disability in the event that there exists a previous impairment including a previous non-work related injury which produces impairment and the same is aggravated by a work related injury that compensation for permanent disability shall only be for such an amount as was caused by such accidental personal injury and no additional compensation shall be allowed for the pre-existing disability.

• No treatment No Impairment. Permanent partial impairment is not allowed to a part of the body for which no medical treatment has been received.

PPD – FORGET ABOUT IT

No more PPD.

Its now

PPI

PPI – PTD• Directs that if both PPI and PTD are

awarded, the PTD award is not due until the PPI award is paid in full.

• Allows PTD to be paid to a worker who has exhausted the maximum period of TTD even though the worker has not reached MMI.

VOCATIONAL REHABILITATION

• The text now explicitly states that vocational rehabilitation benefits shall not be provided to any non-documented employee who is unable by law to be hired in Oklahoma.

• No person will be adjudicated as permanently and totally disabled unless first having obtained an evaluation through vocational rehabilitation services and it should be limited to 52 weeks and may be extended in some certain circumstances.

Payment of Medical

• If there is no good faith reason, Courts may assess up to a 25% penalty against the payor for failure to timely pay.

• Allows assessment of a fine up to $5,000 per occurrence for a willful and knowing pattern of delaying payment for medical care.

• Requires treating physicians to disclose to the interest in certain health care companies that are not the physician's primary place of business. Failure to disclose is grounds to disqualify the physician from treating. Same goes for implantables.

Temporary Total and Temporary Disability

• Increases TTD to not only no more than 156 weeks, but an additional 52 weeks of TTD may be awarded for consequential injury.

• Prohibits TTD for the first 7 days of disability unless the Court determines the disability to be for more than 21 days, in which case, TTD is paid from the first day of such disability.

Temporary Total and Temporary Partial disability – When Due…continued

• TTD must be paid within 10 days. A 15% penalty payable to an employee for unpaid or delayed weekly benefits.

• Permits state employees to supplement TTD with accrued leave.

• Allows termination if, without a valid excuse, the employee misses 3 medical treatment appointments, abandons care or is noncompliant with treatment.

TTD Continued

• Prohibits TTD for periods during which state unemployment benefits or certain short term disability benefits are received.

• Requires a Claimant on TTD to notify the employer/insurer in writing within 7 days of any change in material fact occurring during receipt of the benefits.

TTD

• Creates a presumption in favor of the treating physician on the issues of temporary disability and need for medical treatment, unless rebutted by clear and convincing evidence to the contrary of a qualified independent medical examiner.

• Payment of TTD shall not constitute an admission of liability.

Permanent Partial Impairment (PPI)

• Provides that a determination of permanent impairment of disability made by the Court which is not supported by objective medical findings of a treating physician who is an MD or DO or a qualified independent medical examiner shall be considered an abuse of discretion.

Permanent Total Disability

• Requires the Court to review PTD status every 3 years.

• Requires suspension of a worker's benefits for failure to file an affidavit under penalty of perjury that the worker is not, nor was, engaged in gainful employment. Permits reinstatement after proper hearing before the Court.

Retaliatory Discharge §341(fka §5)

• No employer may discharge… because the employee has in good faith:5. Elected to participate or not to participate in a

certified workplace medical plan as provided in this act.

– D. No employer may discharge an employee for the purpose of avoiding payment of temporary total disability benefits to the injured employee.

– Exemplary or punitive damage awards shall not exceed $100,000.00.

– The employee shall have the burden of proof by a preponderance of the evidence.

Potpourri

• Mileage- Must be more than 20 miles roundtrip to get paid.

• Allows an employer to ask about prior workers' compensation claims unless otherwise provided by law.

• Permits an employer to discharge an employee for failing to answer truthfully about any previous PPI awards.

Cottage Industries

• An attorney may not withhold client funds for the purpose of making contributions to a political fund, candidate or campaign

• Mediators must schedule mediations for a minimum of 2 hours and only one at a time please.

• No attorney fees for uncontested death cases, for the value of vocational rehab a compromise settlement or order of the court, or for the amount of Medicare set-aside trust agreement.

THERE’S AN APP FOR THAT!

Requires the Administrator to publish on the Internet the names of all claimants who have filed a workers' compensation claims in the preceding 10 years, beginning 1/1/12 and updated annually.