Under Construction
Current Practice Under the Remodeled Workers’ Compensation Court
By Mitchell C. Maurer and James B. Cassody

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, permanent partial disability or permanent total disability. 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.

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 American Medical Association Guides to the Evaluation of Permanent Impairment 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 pre-hearing conference (Form 13) must be filed by the objecting party so the matter can be docketed with the court. At the ensuing pre-hearing conference, the parties can either agree to an independent medical examiner 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 selected independent medical examiner 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. Supreme Court 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 temporary total disability. Pursuant to 85 Okla. Stat., §17(D)(10):

When the injured worker is released by the treating physician for all body parts, the employer may terminate temporary total disability 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 independent medical examiner 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 independent medical examiner, 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 temporary total disability benefits. Although strict interpretation of the statute3 suggests that the moving party may terminate upon giving notice, the amendments to the Workers’ Compensation Court Rules indicate the court believes 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 temporary total disability 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 temporary total disability benefits will cease in 15 days unless the claimant returns to work. The claimant may object during this 15-day period. If the claimant objects, a hearing is to be held within five days. However, in practice, it appears that the court is sending notice of a hearing within five 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 temporary total disability 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 temporary total disability and permanent partial disability for soft-tissue injuries. The legislature has attempted to limit compensation for soft tissue injuries to eight weeks of temporary total disability, or up to 24 weeks of temporary total disability, if surgery is recommended.5

In addition, permanent partial disability 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), permanent partial disability 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 permanent partial disability may not be available 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 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 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 20 percent. However, under the new amendments, if a respondent makes a written settlement offer within 15 days following the claimant’s being released at maximum medical improvement on an admitted claim, the attorney fee is limited to 35 percent of the difference between the offer and the amount awarded for permanent partial disability, subject to a maximum of 20 percent of the permanent partial disability 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 temporary total disability litigation normally received fees up to 10 percent of the temporary total disability award. That was based upon quantum meruit, limited to a 10 percent cap, but was almost always exactly 10 percent. Now, however, those fees are to be based upon “reasonable hourly rate.” Furthermore, it appears all attorney fees — permanent partial disability, temporary total disability and all other issues — are to be capped by the 20 percent maximum, and that those fees are to be deducted from the award of permanent partial disability, or settlement.

RETURN OF THE MULTIPLE INJURY TRUST FUND

For injuries occurring after Nov. 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 permanent total disability. 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 permanent total disability 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 Nov. 1, 2005, to claims for permanent total disability 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 Nov. 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.

1. 85 Okla. Stat. §17(a)
2. 85 Okla. Stat. §17(b)
3. 85 Okla. Stat §1.1(C): “Provisions of the Workers’ Compensation Act shall be strictly construed by the Court and Appellate Courts.”
4. 85 Okla. Stat. §14(A)(2) reads: “The attending treating physician who renders treatment to the employee at any time shall promptly notify the employee and employer or the employer’s insurer in writing after the employee has reached maximum medical improvement and is released from active medical care. If the employee is capable of returning to modified light duty work, the attending treating physician shall promptly notify the employee and the employer or the employer’s insurer thereof in writing and shall also specify what restrictions, if any, must be followed by the employer in order to return the employee to work. In the event the attending treating physician provides such notification to the employer’s insurer, the insurer shall promptly notify the employer. If an injured employee, only partially disabled, refuses employment consistent with any restrictions ordered by the treating physician, the employee shall not be entitled to temporary benefits during the continuance of such refusal unless in the opinion of the treating physician such refusal was justifiable; provided, before compensation may be denied, the employee shall be served with a notice setting forth the consequences of the refusal of employment and that temporary benefits will be discontinued fifteen (15) days after the date of such notice. The employee, upon receipt of such notice, may seek a hearing before the Workers’ Compensation Court. The Court shall grant an expedited hearing within five (5) days of any such application by the employee. At such hearing, the Court may enter an order allowing the discontinuation of such benefits, denying the discontinuance of such benefits or temporarily denying the discontinuance of such benefits pending further hearing. An order denying or temporarily denying the discontinuation of temporary benefits shall be based on a finding by the Court that probable cause exists to believe the work does not meet the conditions of the treating physician’s restrictions or that the restrictions are unreasonable.”
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. §
7. 85 Okla. Stat. §3(12) “Compensable injury” means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such Employment was the major cause of the specific injury or illness. An injury, other than cumulative trauma, is compensable only if it is caused by a specific incident and is identifiable by time, place and occurrence unless it is otherwise defined as compensable in this title. A compensable injury must be established by objective medical evidence, as defined in this section.”

b. Compensable injury” includes heart-related or vascular injury, illness or death only if an accident or the claimant’s employment is the major cause of the heart-related or vascular injury. Such injury shall be compensable only if it is demonstrated that the exertion necessary to produce the harm was extraordinary and unusual in comparison to other occupations and that the occupation was the major cause of the harm. The injury must be established by objective medical evidence, as defined in this section.
8. Williams v. Nova Store Systems, L.L.C., 2005 OK CIV APP 17 (Division 1, 2004); American Airlines v. Lee, 2005 OK CIV APP 110 (Division 1, 2005)
9. 85 Okla. Stat §172(B)(2) as amended July 1, 2005.

About the Authors

Mitchell C. Maurer has been licensed in Oklahoma since 1995. He has been practicing insurance defense law since that time. He has concentrated on defending workers’ compensation claims since 1996. He received a B.S. in journalism from OSU in 1986. He received his law degree from TU in 1995. Prior to practicing law, he was a reporter for the Tulsa World for 10 years.

James B. Cassody is a 1988 graduate of OU and received his J.D. from OCU in 1993. An associate with McGivern, Gilliard and Curthoys since June 2000, Mr. Cassody now practices exclusively in the area of workers’ compensation defense, with a focus on appellate matters. He is a member of the OBA Workers’ Compensation Section and is currently serving as vice chairman for the OADC Workers’ Compensation Committee.

Under Construction Current Practice Under the Remodeled Workers’ Compensation Court Published 77 OBJ 2747 (Oct. 7, 2006)