UNDER CONSTRUCTION: Current Practice Under the Remodeled Workers’ Compensation Court

By Mitchell C. Maurer and James B. Cassody
McGivern Gilliard & Curthoys

After a number of years of more or less minor revisions to the Workers’ Compensation Act (“Act”), the Oklahoma Legislature, in 2005, enacted major reform in the area of workers’ compensation jurisprudence. Though practitioners have now had several months to wade through the complexities of the new Act, many uncertainties remain. Being premature to offer any comprehensive review of the reforms, the following is offered as a synopsis of the some of the most significant changes that have been enacted.

MEDICAL EVIDENCE

One core area of reform involves medical evidence. Historically, the trial tribunal has been faced with medical evidence from "dueling experts," whereby each party presents a medical opinion (usually in the form of a narrative report) from its own physician. These medical experts most often were not the treating physician of the injured worker.  Their reports would be offered, in conjunction with lay testimony, to support whatever relief was being sought – medical treatment, temporary total disability (TTD), permanent partial disability (PPD), or permanent total disability (PTD). The court’s decision could be based entirely upon one of the opinions, or could rely on parts of both. In the alternative, the court could rely on an opinion of a court-appointed physician (IME).

This long-standing practice of utilizing competing medical opinions has, at least theoretically, been curtailed by the language in 85 Okla. Stat. §17(a).

"There shall be a rebuttable presumption in favor of the treating physician’s opinions on the issue of temporary disability, permanent disability, causation, apportionment, rehabilitation or necessity of medical treatment. Any determination of the existence or extent of physical impairment shall be supported by objective medical evidence."[1](emphasis added).

Thus while the opinion of the treating physician is now to be given a preponderance of evidentiary weight, such opinions must still adhere to the strictures of the AMA Guides and must also utilize the language of Court Rule 20 in order to be legally competent for purposes of admissibility.

Despite the revision of § 17, parties in many cases continue to "purchase" expert reports, as the treating physicians fail to address an issue in dispute. Secondly, given that the treating physician’s opinion creates only a "rebuttable presumption," the court has, in some instances, admitted those "purchased reports" into evidence and deviated from the treating physician's opinion. In those cases where the treating physician does not conclusively address all medical issues, it is a wise practice for a practitioner to purchase an expert report.

If a party disagrees with the opinion of the treating physician, the party is required to object to the report within 10 days.  A Request for Prehearing Conference (Form 13) must be filed by the objecting party so the matter can be docketed with the court.  At the ensuing prehearing conference, the parties can either agree to an IME or have one “randomly selected” by the court to address the issue(s).[2]  The judge ideally will appoint a physician who is a specialist in the type of injury suffered by the claimant.

The IME selected is then to inform the Court whether or not the treating physician's report is supported by "objective medical evidence."  Under 85 Okla. Stat. §3(17), "objective medical evidence" is that which meets the criteria of Rule 702 of the Federal Rules of Evidence and all applicable U.S. SupremeCourt decisions.  In other words, expert medical evidence submitted in Workers' Compensation cases now must comply with the standard established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). One school of thought postulates that Daubert should be applicable to all existing workers’ compensation claims, since the concept would be procedural in nature rather than effecting a change in substantive law.

TERMINATION OF TEMPORARY TOTAL DISABILITY

Another significant change in the Act concerns the procedure for terminating TTD.  Pursuant to 85 Okla. Stat., §17(D)(10):<</p/>

When the injured worker is released by the treating physician for all body parts, the employer may terminate TTD by notifying the employee.  The employee is entitled to one objection.

1. If the objection is filed within 20 days of the receipt of the notice of termination, the Court shall appoint an IME to determine if further medical treatment is reasonable and necessary.  The employer shall bear this cost.
   
2. If a party does not agree with the IME, they have 10 days to file an objection.  The deposition shall be taken and the matter submitted to the Court for a determination.  The objecting party shall bear the cost of the deposition. (emphasis added).

Thus the long-established practice of filing a Motion to Terminate Temporary Compensation (Form 11) has been eliminated.  In response to the amended statute, many practitioners are forwarding both a letter to opposing counsel and filing a Form 13 with the court indicating the intent to terminate TTD benefits.  Although strict interpretation of the statute[3] suggests that the moving party may terminate upon giving notice, the amendments to the Workers' Compensation Court Rules indicate the Court believes twenty (20) days must be given to allow the opposing party to object.

The procedure for returning a claimant to work under light duty restrictions, or terminating TTD benefits for refusal to return to restricted duty has also been revised.[4]  Now, the treating physician must give notice of light duty restrictions and the employer may promptly notify the claimant that TTD benefits will cease in fifteen (15) days unless the claimant returns to work.  The claimant may object during this fifteen-day period.  If the claimant objects, a hearing is to be held within five (5) days.  However, in practice, it appears that the court is sending notice of a hearing within five (5) days, rather than actually entertaining arguments within that time frame. Based upon the evidence, the court may then issue an order denying the motion to terminate TTD if it determines that the work offered is not in compliance with the restrictions set out by the physician.

DURATION OF TTD, SOFT TISSUE INJURIES AND
PERMANENT PARTIAL DISABILITY

Perhaps the most controversial new provision in the Act is the limitation of TTD and PPD for soft-tissue injuries.  The legislature has attempted to limit compensation for soft tissue injuries to eight weeks of TTD, or up to twenty-four (24) weeks of TTD, if surgery is recommended.[5]

In addition, PPD does not appear to be available for soft-tissue injuries, or at least those injuries where this is no evidence of anatomic abnormality.  Under §22(b)(3), PPD may be awarded only when there is objective medical evidence of an anatomical abnormality.

By definition, only injuries to the spine where "corrective surgery is performed," injuries to the brain (or closed-head injuries), or total knee replacements are not soft tissue. This leaves a wide range of common injuries, typically sprains or strains, for which PPD is now unavailable as a benefit. What is the result when an injury results in a crushed or broken bone? Would these too be considered "soft tissue?" The definition of "permanent anatomical abnormality" as used by the Legislature will obviously be critical to practitioners in the future. This may ultimately be a question that the Oklahoma Supreme Court will have to decide.

COMPENSABLE INJURIES

The Legislature has also categorized cumulative trauma injuries as soft tissue. "'Cumulative trauma'" means a compensable injury, the major cause of which results from employment activities which are repetitive in nature and engaged in over a period of time and which is supported by objective medical evidence as defined in this section."[6]   Prima facie evidence in cumulative trauma claims must now include: 1) proof that the work activities are the "major cause" of the injury and, 2) objective medical evidence to support a finding of a work-related injury arising out of and in the course of employment.

The Legislature's use of the phrase "major cause" is clearly significant, and it is a concept that has its origin in other jurisdictions.[7]   Undoubtedly, the intent of the “major cause” language is to tighten the definition of a compensable injury. Henceforth, all injuries must be supported by objective medical evidence, and for those claims arising from a single-event injury, must be identifiable by time, place and occurrence.  For a heart attack or stroke to be compensable, employment must be the major cause of the injury and the exertion leading to it must be "extraordinary and unusual" compared to other occupations.  Degenerative disease caused by aging is not compensable unless employment is the major cause of the degeneration.

TIME LIMITATIONS

A loophole in the "old" Act that made it possible to file a Form 3 many years after the initial injury has now been closed. Section 43 (A) as amended limits the limitations period for filing a claim to two (2) years from the date of injury or last medical treatment authorized by the employer or insurance carrier.  Furthermore, "Post-termination injury claims shall be filed within six (6) months of termination of employment, provided that nothing herein shall extend any limitation period set forth in this section." This amendment removed problematic language where the last payment of authorized medical treatment could extend the statute of limitations ad infinitum.

While it is clear that the amendment to Sec. 43(A) places a more stringent time limit on a claimant if he or she is terminated from employment, it fails to define "termination of employment." This ambiguity is potentially troublesome and could ultimately implicate equal protection issues.

Under Section 43   (C) a motion to reopen on a change of condition for the worse must be filed within three years from the date of the last order.  While this curtails the time limit to reopen a claim for a whole-man injury and injury to an arm or a leg, it also seems to expand the time to reopen for unscheduled members such as fingers and toes.  

ATTORNEY FEES

By statute and in practice, the maximum attorney fee in Oklahoma Workers Compensation has been twenty percent (20%).  However, under the new amendments, if a respondent makes a written settlement offer within fifteen (15) days following the claimant’s being released at maximum medical improvement on an admitted claim, the attorney fee is limited to thirty-five percent (35%) of the difference between the offer and the amount awarded for PPD, subject to a maximum of twenty percent (20%) of the PPD award. This amendment does achieve any savings on the part of the respondent, though it may minimize attorney involvement in a number of potential claims.

In the past, a claimant attorney that prevailed in TTD litigation normally received fees up to ten percent (10%) of the TTD award.  That was based upon quantum meruit, limited to a ten percent (10%) cap, but was almost always exactly ten percent (10%) percent. Now, however, those fees are to be based upon "reasonable hourly rate."  Furthermore, it appears all attorney fees—PPD, TTD and all other issues—are to be capped by the twenty percent (20%) maximum, and that those fees are to be deducted from the award of PPD, or settlement.

RETURN OF THE MULTIPLE INJURY TRUST FUND

For injuries occurring after November 1, 2005, employers need no longer be concerned about claims for combination of injuries.  Any claim for impairment due to a combination of previous and current injury is now limited to a request for PTD. Furthermore, the Multiple Injury Trust Fund is once again responsible for that liability.

The previous amendment to 85 Okla. Stat. §172, placed liability for a combination of injury claims upon the last employer, though it was not clear whether or not this allowed for both PTD and "a material increase" in disability. Two published cases by the Oklahoma Court of Civil Appeals clarified this issue finding that the last employer was only responsible for a combination of injuries claim rising to the level of permanent total disability.[8] However, the Oklahoma Supreme Court has yet to rule on this issue. 

The legislature has now amended §172 to limit material increases against the last employer for injuries after June 1, 2000, and before November 1, 2005, to claims for PTD only.[9]

The above noted changes are just some of the myriad amendments practitioners are currently trying to decipher. Other notable changes include:

• Section 44(d) Gives the employer a separate cause of action against a third-party tortfeasor whose negligence or wrongdoing causes the death of an employee.  The employer, however, cannot seek an interest in death benefits or a life insurance policy of the deceased.  In the past, employers had a subrogation interest in injuries, but not death claims. Under the additional new language, employers still do not have a subrogation interest in a death case, but a separate cause of action. It is unclear where this will lead since the damages to both the claimant and respondent stem from the same act of a tortfeasor.
  
• Section 22(10) increases funeral benefits up to $8,000 in cases where no other death benefits are payable, for deaths occurring after November 1, 2005.
  
• Section 22(11)(a) increases the amount paid to a spouse in a death claim to $100,000, from $20,000, and surviving children to $25,000 per child (not to exceed two children), up from $5,000.  In addition, funeral expenses up to $10,000 are allowable, for deaths after Nov. 1, 2005.
  
• Section 22(11)(b) increases the lump sum amount to surviving children without a surviving spouse to $25,000 per child, not to exceed $150,000. Survivors would also be entitled to up to $10,000 funeral expenses.
  
• Section 22(b)(3) for injuries occurring after Nov. 1, 2005, the total amount of disfigurement that can be awarded increases to $50,000, from $20,000.        

[5]85 Okla. Stat. §22(b)(3) which reads, in part: … "In case of a nonsurgical soft tissue injury, temporary total compensation shall not exceed eight (8) weeks. A claimant who has been recommended by a treating physician for surgery for a soft tissue injury may petition the Court for one extension of temporary total compensation and the court may order such an extension, not to exceed sixteen (16) additional weeks, if the treating physician indicates that such an extension is appropriate or as agreed to by all parties. In the event the surgery is not performed, the benefits for the extension period shall be terminated. For purposes of this section, "soft tissue injury" means damage to one or more of the tissues that surround bones and joints. "Soft tissue injury" includes, but is not limited to: sprains, strains, contusions, tendonitis, and muscle tears. Cumulative trauma is to be considered a soft tissue injury. "Soft tissue injury" does not include any of the following:

1. Injury to or disease of the spine, spinal disks, spinal nerves or spinal cord, where corrective surgery is performed;
2. Brain or closed-head injury as evidenced by:
   a. sensory or motor disturbances,
   b. communication disturbances,
   c. complex integrated disturbances of cerebral function,
   d. episodic neurological disorders, or
   e. other brain and closed-head injury conditions at least
       as severe in nature as any condition provided in
       subdivisions a through d of this division; or
3. Total knee replacement.

In all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section, unless there is objective medical evidence of a permanent anatomical abnormality."

[6] 85 Okla. Stat. §