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1 An Overview of the 2011 Workers Compensation Code Presented by Bullard & Associates, P.C. SECTION 302: Intentional Act Defines intentional tort as a willful, deliberate, specific intent of employer to cause injury. The section also specifically rejects the substantial certainty test set forth previously in Parret v. Unicco Service Co., 2005 OK 54. SECTION 308: DEFINITIONS Cardiovascular injuries require showing exertion was extraordinary and unusual in comparison to the usual work of the employee or there is an unusual incident. Note unusual is not defined. Personal property damaged must be replaced if medically necessary. Idiopathic injuries are not compensable either as a direct or indirect cause. Rejects the rationale in prior appellate findings in Flanner v. Tulsa Public Schools, 2002 OK 8. Mental injury must now arise directly as a result of a compensable physical injury and no longer may only accompany the physical injury. Objective medical evidence - Pain complaints may not be considered in determinations of anatomical impairment, Language was included in the 8/27/10 amendments. May preclude claimants from testifying regarding pain. Permanent total disability - Age removed from statute and is therefore no longer a factor in determining PTD. STATE S AVERAGE WEEKLY WAGE - State s average weekly wage and TTD rates determined every Nov. 1. TTD while PPD rate is fixed at $323 until 8/26/15. Effective Nov. 1, 2011, TTD rate will increase to $735 per week. Surgery- Surgical recommendations affecting TTD per 332 of the Code will not include epidural steroid injections, discograms etc. SECTION 311: EXCLUSIONS UNDER THE CODE The following employees are not covered by the WC Code: Federal Employees Agriculture workers with less than $100,000 payroll Licensed Real Estate Agents Medical care providers and social services programs Employer with five (5) or fewer employees, if all related Youth Sports League Sole Proprietors Volunteers Owner-Operators Drive Away Operations Domestic Servants with payroll less than $10,000 1

2 SECTION 312: EXCEPTIONS TO COMPENSABLE INJURIES Drug and Alcohol testing refused by an employee shall disqualify claimant from benefits. Injuries before hire or after termination are excluded. Areas not under the control of the employer or areas where essential job functions are not performed are not compensable. Smoking areas? SECTION 315: APPLICABLE LAW Law in effect at the time of injury controls. A cumulative trauma injury or occupational disease is determined by the date of awareness of employee the disease or illness is related to the work activity. SECTION 316: OCCUPATIONAL DISEASE Silicosis, asbestosis or asbestosis-related disease - employer and insurance carrier liable is the last employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide dust on each of at least 60 days. SECTION 317: CUMULATIVE TRAUMA INJURIES For cumulative trauma injuries, the last employer with injurious exposure (90) days, and the insurance carrier on risk last on the risk solely liable. If no employer has (90) days, the last employer with injurious exposure is now solely liable with the right of apportionment. Statute is contradictory on its face. SECTION 318: STATUTE OF LIMITATIONS AND STATUTE OF REPOSE Statute of Limitations (SOL) for single event injury 2 years from date of injury, last medical treatment or compensation paid. SOL for occupational disease or cumulative trauma injury 2 years from date of last employment (previously 2 years from date of last injurious exposure). SOL for asbestosis or asbestosis related disease: 2 years from date of last exposure or 2 years from date condition first becomes manifest. The use of asbestosis related does NOT mean mesothelioma. See Reeder, 2007 OK 54. Statute of Repose reduced to 2 years from the date of the filing of the Form 3 or 2 years from the date of the last medical paid or compensation paid. Change of Condition- Period in which to reopen is 3 years from the date of the last Order which awards monetary benefits or active medical treatment. Failure to comply with medical treatment plan ordered by the Court shall bar reopening of a claim. *This is specifically noted to be substantive in nature (i.e. applies to dates of injury on or after 8/26/11). SECTION 321: MEDIATION Mediation - Respondent now bears the cost of the mediation. Note: unrepresented claimants may request and participate in the mediation without counsel. Claimants shall attend mediation unless all parties agree in advance. Respondents need not be present but must be represented by a person with full settlement authority. SECTION 326: MEDICAL TREATMENT /MILEAGE REIMBURSEMENT Failure to provide medical care within 7 days after actual knowledge of an injury allows employee to choose treating physician and may result in loss of eight (8) week TTD 2

3 limitation. Change of physician may not be granted for a body part for which no authorized medical care has been provided for 180 days. Note the term authorized. ODGs effective March 1, 2012 No responsibility for payment of medical care not in accordance with the ODGs unless an emergency, or pre-authorization for such treatment by Respondent. Effective March 1, 2012, the ODG Guidelines and the Oklahoma Treatment Guidelines will control medical care. Continuing medical maintenance must be recommended by the treating doctor OR a Court IME. Employee refusal to submit to a medical examination suspends the claim and no compensation is payable for the period of refusal. Mileage reimbursement - paid by actual mileage to and from employee s home (in excess of 20 miles) rather that pursuant to Oklahoma Department of Transportation Mileage Chart. NOTE: If round trip mileage is 60 miles, exclude first 20 miles. Effective July 1, 2011, travel increased to 55.5 cents per mile. SECTION 327: OKLAHOMA MEDICAL FEE SCHEDULE; PAYMENT OF MEDICAL; COST OF DOCTOR DEPOSITIONS; PRESCRIPTIONS; NO SHOW FEES Medical Fee Schedule shall be modified by 1/1/12 to reduce costs in the Workers Compensation System by 5%. Treating physician may not charge more than $400 per hour for preparation for or testimony at a deposition or court appearance MRI quality minimum of 1.0 Tesla or there is no responsibility for payment. Attorney fees available in a hearing to recover medical payments for the party who prevails in full. Repackaged prescriptions reimbursed at the lesser of the original labeler s NDC or the lowest cost therapeutic equivalent drug product. Also note the recurring requirement to rely upon generic when available though that phrase is not defined. Payment of medical care due within 45 days of receipt of invoice. Time for payment was previously 60 days. For failure to pay, fee schedule still applies. Also provides a penalty for failure to pay which would suggest a provider would have to pursue that remedy through WC Court before a bad faith claim could be pursued. No Show fees for claimant failure to attend a medical appointment are initially paid by Respondent but Respondent can request reimbursement from claimant in the absence of a good faith reason for missing the appointment. SECTION 329: INDEPENDENT MEDICAL EXAMINERS Independent medical examiner may be appointed by at any time, regardless of the date of injury (applies retroactively) to assist in determining any issue before the court. Appointment of a CIME is mandatory when surgery is recommended and requested by Respondent. Respondent designates the treating physician In the event the Court Appointed IME determines more treatment is needed. A CIME opinion to be followed unless there is clear and convincing evidence to the contrary. Respondent pays for CIME and subsequent testimony, no matter which party requests. 3

4 SECTION 332: SCHEDULE OF COMPENSATION - TEMPORARY DISABILITY TTD not due for 7 days after date of injury. However, if TTD for 21 days, Respondent must pay the first week of TTD benefits. Maximum TTD reduced to 156 weeks unless a consequential injury is found increasing to a maximum of 208 weeks, down from 300. Termination of temporary benefits for failure to attend appointments or follow recommendations for medical care without a valid excuse. Pay TTD within 10 days to avoid a mandatory 15% penalty. If convicted of a misdemeanor or felony, and upon confirmation of incarceration may terminate TTD without an order. TTD- In non-surgical soft tissue injuries in which the employer has provided medical treatment, TTD is limited to 8 weeks regardless of the number of body parts. Suggests without providing treatment within seven (7) days there is no limitation. Non-surgical soft-tissue injuries of which there is no objective medical evidence of a permanent anatomical abnormality, claimant is only entitled to TTD benefits (not PPD, not CMM, not Voc.?) NOTE: Though it may be challenged as unconstitutional, the statute will apply retroactively. TTD extension - can request extension of 16 weeks of TTD benefits if surgery is recommended; not to exceed 90 days if surgery is not performed. First payment of TTD due on 10th day after employer received notice of injury. Claimants receiving unemployment or short term disability benefits (if premiums or benefits paid by the employer) are not eligible for TTD benefits for the same period. SECTION 333: SCHEDULE OF COMPENSATION - PERMANENT DISABILITY PPD must be supported by competent medical testimony of the treating physician who is a medical doctor or a doctor of osteopathy or a qualified IME. Court and IME can only rely on conclusions of treating physician when determining impairment. PPD shall not be allowed for parts of the body for which medical treatment was not received. Does psychological overlay qualify as a part of the body? Hernia - An award for temporary total disability or permanent partial disability may be entered by the Court if an injury results in a third hernia, or more, in the same area of the body. Sum of all PPD awards shall not exceed 520 weeks excluding amputations and surgery in latest injury. SECTION 335: PROSTHETIC DEVICES Prosthetic devices shall be furnished by employer for life or until subsequent injury to same part of body. SECTION 336: PERMANENT TOTAL DISABILITY PTD is payable for 15 years or until Claimant reaches maximum social security retirement age, whichever is longer. In the event claimant dies due to unrelated causes, benefits cease on date of death. Claim can be revived to receive one time lump sum payment of 26 weeks of PTD benefits. If claimant still treating at time they max out on TTD, the Court could adjudge claimant PTD. 4

5 The shortening of the maximum TTD may suggest this is more likely to occur. The Court shall review status of PTD claimants every 3 years. Upon request of Respondent the Court shall require him to file annually an affidavit verifying no gainful employment and is not capable of gainful employment. (Diary files annually to submit request). Vocational rehabilitation benefits shall not be paid to any non-documented employee. No person shall be PTD unless first having obtained a vocational evaluation to determine practicability of restoration to gainful employment. SECTION 339: COMPROMISE SETTLEMENTS The Joint Petition will cease to be available and will be replaced by the Compromise Settlement. No Form 3 is necessary for unrepresented claimants. The parties will be allowed to customize the settlement to address certain issues. Compromise settlement forms are located on the Oklahoma Workers Compensation Court website at SECTION 344: GOOD FAITH FILINGS; MILEAGE REIMBURSEMENT Mileage reimbursement requests shall be paid within sixty (60) days from receipt or the Court shall assess a $500 fine against Respondent. SECTION 345: COMMUTATION OF AWARDS Any period of non-payment of 10 days or more will result in acceleration of the entire order for payment. PAY your orders timely! SECTION 346: PAYMENT OF AWARDS 10 days after an order is due means 30 days from the date of the order. SECTION 348: SUBROGATION A credit granted against future benefits in an amount equal to the net recovery from a third party tortfeasor. This not only codifies case law regarding credits but allows for consideration of the same in death claims. SECTION 372: DISCLOSURE OF AND WEBSITE FOR PRIOR WORKERS COMPENSATION CLAIMS Failure of claimant to disclose, if asked, prior PPD awards grounds for discharge. Affects light duty for cause termination. By Jan. 1, 2012, the OWCC shall make available a website listing the names of claimants who have filed claims in the previous 10 years. 5

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