OKLAHOMA (CURRENT SYSTEM)

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1 OKLAHOMA (CURRENT SYSTEM) 1) MAKE-UP / STRUCTURE The Oklahoma Workers Compensation Court has exclusive jurisdiction (OWCC) over work related injury claims unless the employer fails to carry insurance and is not an approved Own Risk entity, then the injured worker can file his/her claim in District Court or the Oklahoma Workers Compensation Court. Contributory negligence is not permitted to be a defense in such cases brought in District Court. Most pleadings in the Oklahoma Workers Compensation Court are via forms adopted by the Oklahoma Workers Compensation Court to initiate the claim, respond to the claim and to request hearings. Oklahoma has 10 Judges, each (now) appointed to eight year terms (prior law six year terms). Under the new legislation passed in May of 2013, the judicial positions will be eliminated at the end of each Judge s term of office. The Oklahoma Workers Compensation Court has a Court Administrator who oversees the offices and departments of the Court. The Oklahoma Workers Compensation Court employs a staff attorney as well as Court reporters for each Judge. 2) HEARING PROCESS A) TIME TO HEARING Typically cases are first set for pre-hearing conference within three to four weeks upon application for a trial setting, then set for trial. Normally a case will be set for trial within 6-8 weeks from application. No formal pre-trial statement is required and no pre-trial scheduling order is typically issued. Temporary total disability and medical claims are given priority in scheduling. Witnesses must be listed within 20 days of trial unless excused for good cause by the Court.

2 B) NUMBER OF HEARINGS PER JUDGE Each judge will docket between trial settings per year and between pre-hearing conferences per year. Trial dockets are set Monday- Thursday with most Fridays set aside for Three Judge Panel Appeals. C) USE OF DISCOVERY Written discovery and/or depositions may be used. The cost of any physician s deposition is borne by the party requesting the deposition. If the physician is Court appointed, the respondent shall bear the cost. D) ADMISSIBILITY OF MEDICAL REPORTS Verified (under penalty of perjury) medical reports are admissible if otherwise competent. Permanent disability ratings must conform to the 5 th Edition of the AMA Guides other than ratings to scheduled (non-whole person) members. Hearsay objections must be filed with the Court to trigger the deposition process. Treatment medical records need not be verified if offered to show the type of treatment received (i.e., for history rather than as substantive proof). If a substantive medical report is excluded by the Trial Judge on competency grounds the offering party must be given an opportunity to correct any defects. E) AWARDS AND THEIR STRUCTURE An order must be issued within sixty (60) days of the case being fully submitted. The Judge must make findings of fact and conclusions of law definite enough for meaningful judicial review. F) USE OF MEDIATION Mediation is permitted either by the agreement of the parties, upon application of one party and ordered by the Trial Judge or by the Court on its own motion. The Oklahoma Workers Compensation Court maintains a list of certified mediators. All mediations are confidential. 3) APPEALS / STANDARD OF REVIEW Appeals of the Oklahoma Workers Compensation Court Trial Judge may be filed to a three judge panel of the Oklahoma Workers Compensation Court challenging the Order on an against the clear weight of the evidence and/or contrary to law basis. Those appeals are heard by oral arguments with optional filing of briefs. Panel Orders may then be appealed to the Oklahoma Supreme Court within twenty (20) days. Alternatively, the Trial Court may be appealed to the Oklahoma Supreme Court directly. The Supreme Court normally assigns those appeals to a division of the Oklahoma Court of Appeals. A petition for certiorari may then be filed to request the Oklahoma Supreme Court to review a decision of the Court of Appeals. -2-

3 The standard of review traditionally has been whether the factual determination of the Trial Court is supported by any competent evidence and/or whether the decision of the Trial Court was contrary to law. The recent 2010 and 2011 statutory changes provided for the clear weight of the evidence review standard but a Court of Appeals decision has noted that to be in violation of Oklahoma Constitutional Separation of Powers Clause. That issue will ultimately be decided by the Oklahoma Supreme Court. 4) SETTLEMENT PROCESS A) Full and final lump sum settlements are permitted in Oklahoma. Alternatively, the parties may settle some issues, but not all, if approved by the Court, (e.g., indemnity benefits may be settled with medical care left open / ongoing). Additionally, settlements representing an agreed permanent disability / impairment award are permitted which then allow the claim to be reopened upon a change of condition for the worse (within 3 years), just as a Trial Court Permanent Partial Disability / Impairment Order may be reopened. B) SETTLEMENT OF MEDICAL Medical may be settled in full as well. C) REVIEWS REQUIRED All settlements must be approved by a Judge of the Oklahoma Workers Compensation Court. Unrepresented claimant settlements may also be approved by the Oklahoma Workers Compensation Court Administrator. 5) JUDGES A) Judges are appointed by the Governor from a list of three names, submitted by the Judicial Nominating Commission (JNC) composed of both lay members and attorneys following application and interviews. The Judicial Nominating Commission has a majority of lay members. B) EVALUATION The Oklahoma Workers Compensation Court publish annual statistical information of the number of hearings set for each Judge and mostly monitors the time to hearing for each Judge. No ongoing evaluation process exists. -3-

4 C) CONTINUING EDUCATION Currently no Judicial CLE is required for the Oklahoma Workers Compensation Court Judges, but many attend Judicial CLE programs and/or CLE programs. D) TERRITORIES The Workers Compensation Court has statewide jurisdiction. Currently, all hearings are held in Oklahoma City or in Tulsa. 6) 2014 Effective February 1, 2014, the current system changes completely. Oklahoma has now adopted an Administrative System. Briefly, injuries on or after February 1, 2014 will be heard by Administrative Law Judges appointed by three Commissioners appointed by the Governor and confirmed by the Oklahoma State Senate. Administrative Law Judges will have no term of office and will serve at the pleasure of the Commissioners. Benefits and evidentiary rules have changed dramatically. Temporary total disability and permanent partial disability benefits have been reduced in both duration and rate. The new law sets forth significant changes to existing laws some of which are as follows; A) The exclusive remedy protection applies even if the employee is denied compensation or deemed ineligible for benefits; B) The maximum rate for temporary total disability has been cut 30%; C) Awards for permanent partial disability to the whole person, i.e., non-scheduled members, have been cut 30% by reducing the number of weeks used to compute the award from 500 to 350 weeks; D) Payment of permanent partial disability awards (except in amputation of or total loss of use of a scheduled member) are deferred and ultimately eliminated if the claimant either returns to his/her pre-existing job or refuses to do so upon an offer by the employer. The deferral is on a week by week basis, for each week claimant returns to such employment or refuses to do so the award is reduced by a week. Also, if the employee is terminated for misconduct (as broadly defined by the new law) the permanent partial disability award is not paid. D) In cardiovascular, coronary and other heart related claims physical or mental stress may not be considered by the Commission in deciding causation. -4-

5 E) An opt-out provision has been enacted which allows employers to opt-out of the Workers Compensation System entirely by setting up an alternative benefits plan by giving notice to the State Insurance Commissioner and paying a $1, annual fee. The plan is to provide for the same form of benefits that the Administrative Workers Compensation Act does. However, definitions of covered injuries are not required to be the same. If the employer denies the claimant s claim the claimant then may appeal to the plan s Appeals Committee and then to the Workers Compensation Commission based upon the record. The standard of review is mandated to be objective and the decision may not be arbitrary or capricious. An appeal to the Supreme Court is permitted using only a contrary to law standard of review. F) The Oklahoma Workers Compensation Court will continue to exist as the Court of Existing Claims to hear cases for injuries occurring prior to February 1, Current Judges of the Workers Compensation Court will serve as Judges of the Court of Existing Claims until their respective terms expire, both the last terms expiring in At that time the cases will be assumed by transferred to the Administrative Law Judges to hear, using pre-february 1, 2014 law. The Three Judge Panel Appeal process is eliminated as of February 1, 2014 with the new law purporting to allow the Workers Compensation Commissioners to hear appeals from the Court of Existing Claims. G) Permanent disability ratings, except for scheduled members, are to be in accordance with the latest edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. It is anticipated that challenges to the new law will be made in full and/or in part due to concerns over separation of powers, due process / equal protection and other Oklahoma Constitutional issues. -5-

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