The Administrative Workers Compensation Act “AWCA”

1. The Administrative Workers Compensation Act “AWCA” • Effective February 1, 2014 • Creates the Workers Compensation Commission “OWCC” • Effective for injuries on or after February 1, 2014 for single event injuries • Effective for cumulative trauma injuries or occupational disease with date of awareness on or after February 1, 2014 • Effective for Death Claims on or after February 1, 2014. • Moves from Judicial system to Administrative System

2. Overview of New System • The OWCC will consist of Three Commissioners who develop rules and procedures for Administrative hearings, hear and approve settlements, review own risk permits, monitor self-insured employers, appoint Administrative Law Judges “ALJ” and may assume duties of the Court of Existing Appeals

3. Hearings • Any CC Form 9 when claimant seeks PPD or PTD must also submit medical evidence. • All evidence must be exchanged for the Administrative hearing within 20 days of the hearing. • If the compensability of a claim is contested, the respondent has to complete discovery and secure a medical evaluation within 60 days of filing of a request for benefits. • A claimant may appear without counsel. • Any Corporation or carrier, own risk employer or group insurance, may appear by attorney or designated representative with full settlement authority. If a non-lawyer must submit credentials to Commission in advance of first appearance before the Commission and bound by same ethical standards of attorney and to follow all rules.

4. A Prehearing Conference is held after the filing of a CC Form 13 which is an informal hearing before the ALJ. Employers and Insurance carriers must be represented by counsel at any hearing before the Commission or ALJ. • Hearings are open to the public. • Hearing before the ALJ are to be held in Oklahoma City at the Commissions main office and in Tulsa where designated by the Commission.

5. Hearings are Recorded • The rules of evidence do not apply at the hearings before the Commission and ALJ. • Doctors may testify by report, deposition or live testimony • The Commission assigns the ALJ once a Claim for Compensation is filed. • Commission must give 10 days notice of hearings. • Judgments or Written Opinions are due within 30 days of the submission of the case. • Must prove case by preponderance of the evidence (more likely than not)

6. Statements of Deceased employees allowed • Written testimony of a witness in the form of a notarized affidavit may be received in lieu of direct examination. • ALJ makes specific findings of fact in response to issues and conclusions of law. • Medical evidence is to be furnished to the Commission at least 7 days before the hearing. If not yet available, the name of the doctor is to be provided and their report as soon as possible.

7. Benefits

8. Medical • Employer selects the treating physician. Must provide treatment within 5 days after actual knowledge of injury. (shortens period by 2 days) • Change of Physician: Allows only 1 change of physician per claim and 3 names submitted by employer only. Claimant selects from the 3 names. There is no time limit on when this can be requested. It does not appear from the rules this is automatic award and that claimant may have to prove it is proper. • The employer is not liable for payment of medical if the injury is not compensable.

9. Claimant must attend medical examination when requested by the employer or Commission. • If claimant refuses surgery (except in case of hernia) Commission may take into account in determining PPD. • If claimant misses two or more scheduled appointments for treatment then benefits may end unless missing was due to extraordinary circumstances out of employee’s control or the employee gave at least 2 hours notice of absence and valid excuse. (Lack of transportation is not an excuse)

10. Independent Medical Examinations • Independent Medical Examinations (Court IME): Current doctors on court’s list grandfathered until term expires then must reapply • May be appointed by Commission at any time on any issue. • If dispute on need for surgery by employer, then must be granted. • Opinion of Court IME is binding unless there is clear and convincing evidence to the contrary. (Highest Standard) Deviations by commission must be explained. • No change in cost and who pays.

11. Temporary Total Disability (TTD) • 70% of AWW but can’t exceed 70% of states AWW or a max of $ 561.00 from February 1, 2014 through October 31, 2014. • No TTD for first 3 days off work. • First installment of TTD is due on the fifteenth day after the employer has the notice of injury unless the claim is denied. An intent to controvert claim must be filed within 15 days after notice of the injury or by the later date as fixed by the commission if an extension is requested. • Limit of 104 weeks (plus 52 weeks for consequential injuries if allowed by Commission). • No Minimum TTD • Mental Injuries limited to up to 26 weeks of TTD but can be extended up to 52 weeks. • No TTD during period of unemployment or period of payment of STD by employer. If claim is disputed and later found compensable, claimant may receive TTD for amount that exceeds unemployment.

12. TTD – Soft Tissue Limits • Soft Tissue limited to 8 weeks, • Soft Tissue with performance of one or more injections an additional 8 weeks (up to 16 weeks total), • If recommended for surgery up to an additional 16 weeks • If surgery is not performed in 30 days then TTD ends.

13. Disclosure of Previously Paid benefits • Any benefits payable to an injured worker shall be reduced in an amount equal to, dollar for dollar, the amount of benefits the injured employee has previously received for the same medical services or period of disability, whether those benefits were paid under a group health care service plan, group disability policy, group loss of income policy, group accident health or accident and health policy, self-insured employee health or welfare benefit plan, or group hospital or medical service contract. Such deduction does not apply to any benefit received from a group policy for disability if the injured employee has paid for the policy. The claimant must disclose to the Commission certain information pertaining to the benefits.

14. Temporary Partial Disability (TPD) • If claimant returns to work light duty then he is entitled to 70% of difference between the AWW before the injury and while performing light duty. No longer have the 80% limit. • Limit of 52 weeks. • If employee refuses the light duty work, then no TTD is due • No longer written requirements regarding offer of light duty as in old act.

15. Permanent Partial Disability (PPD) • Total awards of PPD or combination of awards may not exceed 100% to any body part or the body as a whole or 350 weeks. (Excludes MITF awards). • Determined if dispute by ALJ. • Must have competent medical based upon objective medical evidence and state percentage of PPD and if job related and caused by the injury. • PPD is determined by the 6th edition of the AMA Guides for all whole man body parts. Scheduled members do not have to be rated in accordance with the Guides. Deviations must be shown by “clear and convincing evidence” (the highest standard). • No PPD due while incarcerated.

16. No PPD is to be awarded to a body part for which no medical treatment was received. • If ALJ or Commission finds PPD not supported by the treating physician who is an MD, it is considered an abuse of discretion. (Supreme Court has previously ruled this is not allowed) • PPD rate is 70% of AWW with max of $323.00 per week. The maximum number of weeks for the whole man is reduced from 520 to 350. • There is no longer a minimum of $150.00 for PPD.

17. Prior Adjudications • If there is a previous impairment that is aggravated, PPD is only due for the amount caused by the injury. If there is a prior order or settlement, that amount controls. • IF the employer against whom the compensation is sought was the employer against who the prior impairment was found, any award of compensation against the employer is reduced by the current dollar value of the percent of pre-existing disability. The reduction is calculated by multiplying the percentage of pre-existing disability by the compensation rate in effect on the date of the accident or injury against which the reduction is applied. • If the employer against whom the compensation is sought was not the employer when the pre-existing injury occurred, the employer is entitled to credit for the percentage of disability.

18. PPD – Return to Work • Unless waived in settlement, payment of PPD is deferred and held in reserve by the employer or carrier if the employee has reached mmi and has been released to return to work by his treating physician and then returns to his pre-injury or equivalent job for a terms of weeks determined by dividing the total dollar value of the award by the PPD rate. • This means the PPD is reduced by the PPD rate for each week the injured works in his pre-injury or equivalent job. • If for any reason other than misconduct, the employer terminates the employee or the position is not the pre-injury or equivalent job the remaining PPD is paid in a lump sum. The employer must prove misconduct

19. IF the employee refused the offer to return to work, the PPD award shall continue to be deferred and reduced by the PPD rate for each week he refused to return to work. • Note: Attorney fees are paid in full at the time of the deferral so the attorney may get his fee but the claimant may not receive anything if he returns to work or refuses the work. • Note: The Supreme Court is likely to rule this is a violation of equal protection.

20. Vocational Rehabilitation • The Commission will employ a Voc Rehab Director to oversee the Voc Rehab program of the Commission. • Upon a request for Voc Rehab, the Director determines if appropriate and oversees the training. • The Director can order Voc Rehab whenever claimant is unable to work for at least 90 days. Can be before MMI. • Employer pays for Voc Rehab and evaluations. • If claimant falls into special criteria then there is a presumption voc rehab is needed. • If the claimant fails to complete ordered voc rehab in good faith or refuses, the cost of the evaluation and services may be deducted from any award of PPD that remains unpaid. • Limited to 52 weeks (shortened from 104). • Must be requested within 60 days of the date of permanent restrictions. • Same costs are reimbursed as before. • TTD while being evaluated for PTD is allowed for up to 52 weeks. The employer or carrier may deduct the amount paid for tuition from compensation awarded to the employee.

21. Disfigurement • Maximum is unchanged at $50,000.00 • Cannot be awarded until 12 months after injury

22. Hernia • Must prove the occurrence of the hernia followed as a result of sudden effort, severe strain or application of force directly to abdominal wall with severe pain in the hernia region and that the pain caused the work to be substantially affected. • Notice is due in 5 days • Requires attendance of licensed physician • If compensable, then 6 weeks of TTD. • If refuse surgery, then TTD for 13 weeks. • If dies within 1 year as direct and sole result of hernia then death benefits allowed.

23. Compensable Injury • Compensable Injury: damage or harm to the physical structure of the body, prosthetic appliance solely as result of accident, cumulative trauma or occupational disease arising out of the course and scope of employment.

24. Compensable Injury Does not Include • Injury to active participant in assaults or combats which may occur in the work are the results of non-employment related hostility and is a deviation from the customary duties. • Horseplay is only compensable for innocent victims. • Injury resulting from engagement in or performing any recreational or social activities for personal pleasure. • Injury when employment services were not being performed or before hiring or after termination. • Injuries occurring as results of intoxication by proof of positive testing (this is rebuttable by clear and convincing evidence that the intoxication had no causal relationship to the injury.) • Strains, degeneration, damage or harm to or disease or condition resulting from aging, osteoarthritis, arthritis, or degenerative process including degenerative joint disease and spondylosis and stenosis or pre-existing condition except when the treating physician clearly confirms an identifiable and significant aggravation. • Must be established by objective findings and proven by preponderance of the evidence. Benefits are not allowed for non-work-related intervening cause that causes or prolongs disability, aggravation or requires treatment. Does not require a finding of negligence to prove.

25. Course and Scope of Employment • Work relates to and derives from work of employer in furtherance of business of employer. Does not include: • Transportation to and from work • Travel by employee in furtherance of affairs of employer if travel is also in furtherance of personal affairs of employee; • Injury in parking lot or other common area adjacent to employer’s place of business, before the employee clocks in or otherwise begins work for the employer or after the employee clocks out of or stops work • Injuries occurring while on a work break, unless the injury is while the employee is on a work break inside the employer’s facility and is authorized by the employee’s supervisor

26. Cumulative Trauma Claims • Written notice shall be given to the employer within 6 months after the first distinct manifestation of disease or cumulative trauma or within 6 months after death.

27. Cumulative Trauma: Injury caused by repetitive physical activities extending over a period of time and does not include fatigue, soreness or general aches and pain caused or aggravated or accelerated by employment. Must have resulted directly and independently of all other causes and requires at least 180 days of continuous active employment. (Removed requirement for rapid, repetitive motion as contained in initial Senate Bill)

28. Statute of Limitations • 1 year to file a claim with the Commission from the date of injury. (Excludes occupational disease) If during the 1-year period following the filing of the claim, the employee receives no weekly benefit compensation and receives no medical treatment the claim is barred.

29. Six months after the filing of a claim for compensation must file a bona fide request for a hearing on compensation. On motion and after hearing may be dismissed with prejudice if not timely filed. (Per rules: must file motion for Committee to consider.)

30. Change of Condition: If any compensation, including disability or medical is paid, a claim for additional compensation is barred unless filed within 1 year from the date of the last payment of disability compensation or 2 years from the date of injury, whichever is greater. The filing must specifically state it is claim for additional compensation. • The statute of limitation in this section does not apply to claims for replacement of medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus permanently or indefinitely required as result of injury if previously furnished. Replacement does not constitute payment of compensation as to toll the Statue of Limitations. • 6 months after the filing of a claim for additional compensation must make a bone fide request for hearing or the claim is dismissed without prejudice to the refilling of the claim within the limitation period.

31. Appeals • Appeals from an ALJ are due within 10 days of issuance to the Commission. After a hearing, the Commission may reverse or modify the decision if it is against the clear weight of the evidence or contrary to law. (Same standard as three judge panel currently). A court reported only if requested by the party records the proceedings. If the ALJ decision is reversed, specific findings are required. • The written appeal must clearly and concisely rebut each issue in the ALJ order that appellant wants reviewed and state the relief sought. • In any case pending on a Request for Review, the parties of record shall submit written arguments, including a statement of facts and legal authority for their positions as an aide to the Commission. The argument is limited to 5 pages (double spaced and 10 point font) and no appendix or attachments are allowed. The Written argument is due 20 days after the filing of the Request to Review. The opposing party then has an additional 10 days to submit a response. • Per rules: Oral arguments are permitted only at the discretion of the Commission and are limited to 10 minutes per side unless enlarged by the Commission. Failure to appear is a waiver of right to argue.

32. Appeals to the Supreme Court • The Supreme Court may reverse, modify, set aside or remand if: the order violates constitutional provisions; is excess of statutory authority of the Commission, made on unlawful procedure, affected by other error of law, clearly erroneous, procured by fraud or missing findings of fact on issues essential to the decision. • Supreme Court appeals are filed with Clerk of Supreme Court, a certified copy of the judgment and grounds for why it is erroneous. The proceedings are to be heard in a summary manner and shall have precedence over all other civil matters in the Supreme Court except preferred Corporation Commission appeals. The party must file a transcript of the record of the proceedings within 45 days of the filing of the appeal. The Supreme Court law and rules govern actions. The fee is $100.00 per appeal paid to the Workers Compensation Fund

33. Attorney Fees • All legal fees are to be approved by the Commission • Attorney fees allowed: 10% on TTD or TPD and 20% of PPD, PTD, and death in a controverted claim. Written offers to settle PPD, PTD, or death that are rejected, the employees attorney fee is limited to 30% of excess between the difference in the amount offered and awarded. • Attorney Fees are not allowed in no controverted claims • No attorney fees on medical benefits • Attorney fees for controverted requests for change of physician allows a $200 attorney fee • Attorney fees on voc rehab are limited to not more than 10% of the value of estimate of the services.

34. Appeals • If a claim is denied, the adverse benefit determination letter is to be sent within 15 days of the receipt of the claim. This may be appealed to the plan’s committee within 180 days of receipt. If the committee affirms any part of the determination, the claimant has 1 year from receipt of notice of the decision to file a petition for review with the Commission sitting en banc. Claimant may then appeal to the Supreme Court within 20 days of the Commissions Decision. • If this is found to be unconstitutional, then appeal from the committee is to district court.