Hastings and Associates Workers Compensation Seminar 2005

1. Hastings and Associates Workers Compensation Seminar 2005

2. Agenda Hastings and Associates • OKLAHOMA CASELAW UPDATE Nichole Bryant • HANDLING THE RESPONDENT’S CASE David Frette • LEGISLATIVE UPDATE & ETHICAL CONSIDERATIONS Rep. Chris Hastings & Robert Thomas  Adjournment

3. Hastings and Associates Oklahoma Caselaw Update Nichole Bryant

4. Oklahoma Caselaw Update Hastings and Associates Pauls Valley Travel Center v. Boucher, 2005 OK 30 This opinion has not been released for publication. Facts: In 2002 claimant injured her right knee when she slipped on some grease while on her way to put a present away in her locker; claimant received not medical treatment and missed no time from work. On 5/1/2003 while at work claimant’s right knee gave way; claimant denied slipping or falling. Claimant did seek medical treatment. Employer denied this injury was compensable alleging the 5/1/2003 incident was due to idiopathic pain. Claimant did have a pre-existing right knee condition from a 1999 injury. Trial Court: Denied 12/2002 injury as claimant on a personal mission Found 5/1/2003 injury compensable; denying employer’s idiopathic pain defense Court En Banc (Three Judge Panel): Sustained Trial Court Order Court of Civil Appeals: Found 5/1/2003 knee event spontaneous and not work related; therefore idiopathic in nature and not compensable.

5. Oklahoma Caselaw Update Hastings and Associates Pauls Valley Travel Center v. Boucher, 2005 OK 30 This opinion has not been released for publication. Supreme Court: Reiterated 2-prong test to determine if an injury is compensable: 1) is it in the course of employment and 2) did it arise out of employment. The Supreme Court only dealt with second prong. Second prong of test then looks at a) nature of work performed and b) nexus between work activity and harm caused (this requires medical proof) Found 5/1/2003 injury compensable as employer only made a legal argument and offered no medical evidence refuting the nexus.

6. Oklahoma Caselaw Update Hastings and Associates Yocum v. Greenbriar Nursing Home, 2005 OK 27 This opinion has not been released for publication. Issue: Does a medical opinion rendered by a court appointed Independent Medical Examiner have a higher probative value then other admissible expert opinions? Trial Court: The Trial Court ordered 4 CIMEs to assess claimant’s need for further treatment including psychological overlay treatment and pain management. CIME found need for treatment. Respondent had previously denied claimant in need of treatment due to work related injury; need for treatment was due to pre-existing condition Trial court denied treatment stating it was not persuaded. Court En Banc (Three Judge Panel): Sustained the Trial Court order Court of Civil Appeals: Vacated the Panel’s order and remanded the case to the Trial Court for further proceeding. COCA determined the legislature intended to give greater value to the court appointed IME’s opinion.

7. Oklahoma Caselaw Update Hastings and Associates Yocum v. Greenbriar Nursing Home, 2005 OK 27 Supreme Court: In its argument, the Court stated that a legislative command to adjudicate a fact by a predetermined statutory direction would constitute an impermissible invasion into the judiciary. Such directive encroaches upon the free exercise of decision making powers reserved to the judiciary. If the Legislature were to require the WCC greater weight to a medical report, such requirement would impermissibly rob the Court of its independent power to establish impairment or disability. The Court went on to say that the Legislature is confined to mandating what facts must be adjudged. It may neither predetermine adjudicative facts nor direct that their presence or absence be found from any proof before a tribunal. Found the COCA violated the any competent evidence standard of review. Also found no legislative intent to accord a CIME report a different rank of probative value. Will the Court uphold the 2005 legislation providing a rebuttable presumption in favor of the treating Physician in light of Yocum?

8. Oklahoma Caselaw Update Hastings and Associates Mrs. Baird’s Bakery v. Cox, 2005 OK 28 This opinion has not been released for publication. Facts: 2/9/2002 claimant sustains single event injury to back resulting in disc herniation at L4-5; claimant also diagnosed with degenerative changes at L3-4. Claimant undergoes surgery for this injury; released to light duty in July 2002 with 40 lb lifting restriction. 8/2002 claimant lifts 20lb disabled daughter out of play pen and experiences back and leg pain; diagnosed with recurrent disk herniation. Fusion surgery recommended. Claimant relates need for fusion surgery to 2/9/2002 injury; employer relates to 8/2002 event. Trial Court: Found 8/2002 incident did not break the chain of compensable causality; ordered fusion surgery. Court En Banc (Three Judge Panel): Affirmed Trial Court Order Court of Civil Appeals: Found it was an issue of fact and determined the event at home of picking up the child constituted an intervening cause and denied treatment was related to 2/9/2002 injury.

9. Oklahoma Caselaw Update Hastings and Associates Mrs. Baird’s Bakery v. Cox, 2005 OK 28 This opinion has not been released for publication. Supreme Court: Vacated the order of the Court of Civil Appeals. Home event of lifting child did not constitute an intervening cause and the event only gave rise to a recurrence of the earlier work related injury.

10. Oklahoma Caselaw Update Hastings and Associates Berg v. Parker Drilling Company, 2004 OK 72 Facts: Claimant sustained injury on 11/25/1998 when he fell on an offshore drilling rig; he received treatment for several days. In 2000 claimant filed a Form 3 alleging injury to his left hip, feet, groin and back from the 1998 injury. Claimant was terminated from employer in March 1999 for unrelated reasons. From 11/1999 to 2001 claimant worked for Pride International Company as an oil rig mechanic with no restrictions. Claimant left their employ because the rig was shut down. Claimant medical opined claimant was in need of additional medical treatment due to the 1998 injury; Employer medical found that claimant was at MMI and had no PPD.

11. Oklahoma Caselaw Update Hastings and Associates Berg v. Parker Drilling Company, 2004 OK 72 Trial Court: Trial Court appointed a CIME. CIME found claimant has significant arthritis and needed bilateral hip replacements but CIME believed the condition was pre-existing and the 1998 injury did not cause the need for the hip replacements. Trial Court found against the claimant on causation and denied the hip replacements. Court En Banc (Three Judge Panel): Affirmed the Trial Court Order Court of Civil Appeals: COCA disregarded all conflicting evidence and looked only at the testimony of the CIME that was favorable to claimant and found that the Three Judge Panel erred as a matter of law and reversed. Supreme Court: Sustained the Trial Court order finding there was competent evidence presented to the Trial Court that allowed the Trial Court to find there was not a causal nexus between claimant’s injury and the disability for which he sought compensation benefits and medical treatment.

12. Oklahoma Caselaw Update Hastings and Associates Williams v. Nova Store Systems, 2005 OK CIV APP 17 Facts: Claimant had a number of prior adjudicated injuries. 1991 – 6% PPD to the left hand 1994 – 34% PPD to the body (neck and back) 2000 – 32% PPD to the body (neck and back) Claimant filed for PTD or in the alternative a material increase of PPD under 85 O.S. Supp 2000 § 172 (combined disability against the last employer) Trial Court: Denied PTD; also denied material increase finding §172 did not provide for material increase Court En Banc (Three Judge Panel): Affirmed Trial Court Order Court of Civil Appeals: Affirmed Court En Banc Benefits for PPD resulting from a combination of disabilities were extinguished by the 1999 amendments to § 172. Benefits under § 172 (B)(2) are limited to claimants whose combined disabilities constitute PTD.

13. Oklahoma Caselaw Update Hastings and Associates Davis v.Cherokee Nation Enterprises, 2004 OK CIV APP 95 Facts: Claimant works as a cashier for the employer, a wholly owned tribal corporation. Claimant injured thoracic spine on 1/27/2002 and received TTD and medical treatment through Kemper Insurance. Claimant filed Form 3 in January 2003; Employer filed motion to dismiss alleging the WCC did not have subject matter jurisdiction over the Employer based on sovereign immunity. Trial Court: Trial Court dismissed the claim finding the Workers’ Compensation Court did not have jurisdiction over the claim based on the doctrine of sovereign immunity. Court of Civil Appeals (Claimant appealed directly): Court relied upon elements set forth in Cherokee Nation Casino v. Sanders that set forth the elements claimant must establish to seek protection: 1) an injury that occurred during the time her employer maintained a compensation liability policy, 2) the insured employer’s payment of premiums based on the claimant’s salary and 3) claimant’s accidental injury occurred in and arose out of her employment Claimant met her burden; case reversed and remanded back to Trial Court for a determination of benefits.

14. Oklahoma Caselaw Update Hastings and Associates Wal-Mart Stores v. Berg, 2004 OK CIV APP 89 Facts: Claimant sustained injury on 4/12/2003. Employer reserved overpayment of TTD from 6/13/2003 as it could accommodate restrictions and a bona fide job offer was made. Claimant objected to termination of benefits. Trial Court: Did Employer make an effective offer of light duty work despite claimant’s rejection of the light duty offer. Claimant was offered an accommodated position that would have varied hours. Claimant refused the offer citing she had 2 children less than 12 years of age and no sitter. Trial Court ordered TTD finding the offer of light duty was insufficient to terminate Employer’s obligation to pay TTD. Court En Banc (Three Judge Panel): Affirmed Trial Court Order Court of Civil Appeals: Found Employer met its burden in offering light duty. Found no Oklahoma case requiring claimant be offered light duty work on same shift worked before injury. Found claimant is still an at-will employee and as she had no control over her shifts prior to her injury; she has no such control after the injury. Vacated the lower courts. .

15. Oklahoma Caselaw Update Hastings and Associates Jarboe Sales Company v. Rowland, 2004 OK CIV APP 84 Facts: Claimant filed Form 3 on 8/1/2001 alleging injured to back, neck and left wrist occurring on 2/27/2001. Employer filed a Form 10 on 9/17/2001 admitting claimant was an employee but denying injury pending further investigation. Employer filed an amended Form 10 on 3/18/2003 denying claimant was an employee or covered by the act; Employer alleged that claimant was an owner-operator of the truck he was operating at the time of the accident. Trial Court: Claimant testified he received a monthly expense check from Employer; claimant also testified since his injury he hired drivers to cover his route; claimant also introduced an Owner-Operator Vehicle Lease. Claimant also testified that Employer paid half of his health insurance and participates in the employee benefits program and that Employer withheld taxes from his check. Trial Court found claimant was an employee and covered under the act. Court En Banc (Three Judge Panel): Affirmed Trial Court Order Court of Civil Appeals: Claimant was not an owner/operator; his work activities were mainly controlled by the employer and claimant’s trucks were not “for hire” Claimant’s work was part of Employer’s regular business. Sustained the lower court orders.

16. Oklahoma Caselaw Update Hastings and Associates Any Questions?

17. Hastings and Associates Handling the Respondent’s Case David Frette

18. Handling the Respondent’s Case Hastings and Associates Cumulative Trauma Claims--§ 11(B)(5) provides: Where compensation is payable for an injury resulting from cumulative trauma, the last employer in whose employment the employee was last injuriously exposed to the trauma during the period of at least 90 days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer, shall alone be liable therefore, without right to contribution from any prior employer or insurance carrier. If there is no employer in whose employment the employee was injuriously exposed to the trauma for a period of at least 90 days, then the last employer in whose employment the employee was last injuriously exposed to the trauma and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefore, with right of contribution from any prior employer or insurance carrier.

19. Handling the Respondent’s Case Hastings and Associates Last Carrier Liability? One thing we do know is that the date of awareness makes no difference for a cumulative trauma claim other than to establish the rate.

20. Handling the Respondent’s Case Hastings and Associates Is Oklahoma The Proper Jurisdiction? For those injuries which do not occur in Oklahoma, inquiry must be made into whether the employment contract was made in Oklahoma. Oklahoma Workers' Compensation Courts have jurisdiction over claims in which the injury 1) occurred in Oklahoma, regardless of the residence of the employee or employer, and 2) over claims by employees who entered into a contract of employment in Oklahoma. The Appellate Court held: "... We conclude that as a matter of fact and law where Employer makes no offer of employment in Oklahoma or Employee manifests no acceptance of an offer of employment in Oklahoma, no Oklahoma contract of employment arises. However, where Employer in another state makes an offer of employment, and the prospective employee accepts the offer in Oklahoma, an Oklahoma contract of employment nevertheless arises even though the employer conditions the offer of employment on performance of certain contingent facts by the employee at some future time and somewhere other than Oklahoma.”

21. Handling the Respondent’s Case Hastings and Associates Is There An Employee-Employer Relationship? In some instances, the question must be asked whether the employment relationship has begun. In other instances, we must ask whether the employer-employee relationship has ended. Likewise, the employer-employee relationship continues until all aspects of the employment have been completed. The first prerequisite to jurisdiction of the workers' compensation court is a showing that the claimant was, at the time of the injury, an employee of the respondent. Furthermore, a person's employment does not ordinarily begin until he or she reaches his place of employment. Compensation coverage does not end "automatically or instantaneously when an employee quits or is fired." Rather, the employment continues for a "reasonable period of time while he finishes his affairs and leaves the premises." The Court went on to say that "a reasonable period of time contemplates a "sufficient interval within which to encompass incidents flowing directly from employment, even though taking effect after employment technically has ceased.

22. Handling the Respondent’s Case Hastings and Associates Has Claimant Timely Filed A Form 3? With cumulative trauma claims, a claimant has two years from the date of last hazardous exposure or trauma or last payment of benefits. Title 85 O.S. § 43 requires an employee to file a Form 3within two years of the date of injury or payment of benefits.

23. Handling the Respondent’s Case Hastings and Associates Was The Claimant An Employee At The Time Of Injury? Is the injured worker an employee or independent contractor? What was the nature of the contract between the parties? What was the degree of control which by the agreement, the employer may exercise on the details of the work? Was the person employed engaged in a distinct occupation or business? Was the work of a kind that is usually done under the direction of the employer or by a specialist without supervision? A principal contractor or employer has no obligation in workers' compensation for injuries sustained by its independent contractors. What skill was required in the particular occupation? Did the employer or the workmen supply the instrumentalities, tools and a place of work for the person doing the work? What is the length of time for which the person is employed? Was the method of payment based on time or by the job? Was the work part of a regular business of the employer? Did the parties believe they were creating the relationship of an employer independent contractor or employer-employee? What was the right of the either party to terminate relationship without liability?

24. Handling the Respondent’s Case Hastings and Associates Did The Injury Arise Out Of And In The Course Of Claimant's Employment? Inquiry as to whether the injury occurred “in the course of ” employment addresses the issue of the time and place of the injury. The inquiry as to whether the injury "arose out of ” the employment questions whether the injury was caused by an employment-related risk, as opposed to one stemming from a purely personal risk.

25. Handling the Respondent’s Case Hastings and Associates Did The Injury Arise Out Of And In The Course Of Claimant's Employment? No longer may an injury be viewed as compensable solely because the worker, while in the course of employment, was exposed to the risk of harm. The law demands that the risk responsible for injury be causally connected to employment and exceed the ordinary hazard to which the general public is exposed.American Mgmt Systems v. Burns When injuries occur off the employer's premises, the likelihood that the employee was exposed to a risk no greater than the general public increases.

26. Handling the Respondent’s Case Hastings and Associates Did The Employee Give Timely Notice? Employees are required to give written or oral notice within thirty (30) days of the date the employee becomes aware that he or she had an injury and that the injury was job related. If the claim is for occupational disease or cumulative trauma, an employee must give written or oral notice or seek medical care within two years of the "date of last hazardous or traumatic exposure."

27. Handling the Respondent’s Case Hastings and Associates Has Medical Treatment Begun? For injuries which arise out of and in the course of employment, Title 85 O.S. § 14 (A)(1) provides: The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary after the injury. A CWMP is a network of medical providers who contract with insurance carriers and self-insured employers to provide medical services at a discounted rate. Upon initial employment and again each year on the open enrollment date, the employee must be given the opportunity to "opt in" or "opt out" of the CWMP. If the employee "opts in" the CWMP, the employee must select a treating physician who is part of the CWMP network. An employee may "opt out" of the plan. However, the employee must designate a treating physician and that physician must have been one who previously treated the employee or a member of the employee's family. Furthermore, the non-plan physician must agree to provide services under the terms of the CWMP contract.

28. Handling the Respondent’s Case Hastings and Associates Have TTD Benefits Begun And, If So, Can They Be Stopped? For admitted claims, TTD benefits must be paid within twenty (20) days of the date the claimant is found to be TTD. TTD benefits are to be paid at a rate of 70% of the claimant's average weekly wages up to a maximum of $528.00 per week for injuries occurring after January 1, 2003. The first three days of TTD status are excluded and need not be paid. A Form 6 must be filed within thirty (30) days after the employee has filed a Form 3 or Form 3B. Workers' Compensation Court Rule 15 addresses termination of TTD benefits. TTD benefits may be automatically terminated without order of the Court in the event: 1. The employee has not filed either a Form 3 or Form 3B with the Court; 2. The employee returns to full time employment with that employer; 3. The claimant files a permanent disability rating report; or 4. The parties voluntarily agree in writing that such payments may terminate.

29. How to Handle the Respondent’s Case Hastings and Associates Any Questions?

30. Handling the Respondent’s Case Hastings and Associates Conclusion When In Doubt…….. Give Us a Call……..

31. Hastings and Associates 2005 Legislative Update Rep. Chris Hastings

32. Legislative Update Hastings and Associates Background Information An Insider’s View. Oklahoma Legislative Session What Passed? What Happened? What Portion of the Workers Compensation System is “Reformed”?

33. Legislative Update Hastings and Associates Reform Goals Reduce Cumulative Trauma Exposure Reduce Soft Tissue Exposure Reduce Attorney Involvement Reduce Medical Costs and Dueling Docs Increase Claimant Benefits

34. Legislative Update Hastings and Associates Key Changes to Definitions Section 3. As used in the Workers’ Compensation Act: 2. “Amount in dispute” means the dollar value of any permanent disability award granted to the employee by the Court for a disability claim which is greater than the dollar amount offered by the employer to the employee for such disability claim if the employer admits compensability within twenty (20) days of the filing of the Employee’s First Notice of Accidental Injury and Claim for Compensation, has not disputed medical treatment, and has made a written settlement offer within fifteen (15) days of the employee reaching maximum medical improvement;

35. Legislative Update Hastings and Associates Key Changes to Definitions Adjuster considerations to trigger “amount in dispute” to reduce attorney fee Admitted Claim within 20 days of Form 3 filing No dispute as to medical treatment And Written settlement offer within 15 days of employee reaching MMI *Treating physician must send notice of MMI within 7 days of finding.

36. Legislative Update Hastings and Associates Key Changes to Definitions 6. 7. “Cumulative trauma” means a compensable injury resulting from, the major causeof which results fromemployment 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; * “major cause” is defined as the predominate cause of the resulting injury or illness

37. Legislative Update Hastings and Associates Key Changes to Definitions 13. a. “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. * “major cause” is defined as the predominate cause of the resulting injury or illness

38. Legislative Update Hastings and Associates Key Changes to Definitions 13. a. …. 13a. Cont. (compensable injury defined)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.

39. Legislative Update Hastings and Associates Key Changes to Definitions b. “Injury” or “personal 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.

40. Legislative Update Hastings and Associates Key Changes to Definitions …. b. Cont. (compensable injury defined) 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 themajor cause of the harm. The injury must be established by objective medical evidence, as defined in this section.

41. Legislative Update Hastings and Associates Key Changes to Definitions d.“Compensable injury” shall notinclude the ordinary, gradual deterioration or progressive degeneration caused by the aging process, unless the employmentis a major cause of the deterioration or degeneration and is supported by objective medical evidence, as defined in this section; nor shall it include injury incurred while engaging in…..or performing any recreational or social activities; * degenerative joint disease not employment related unless degeneration caused predominately by employment activities

42. Legislative Update Hastings and Associates Key Changes to Definitions 15. 16. “Major cause” means the predominate cause of the resulting injury or illness; Predominate means to be of greater importance/influence; Synonym:preponderance How will the Court deal with the issue of pre-existing conditions in light of the term “major cause?” *ie. Trip/fall causes knee injury; requires surgery but due to arthritic changes person needs Total Knee ?

43. Legislative Update Hastings and Associates Key Changes to Definitions 17. “Objective medical evidence” means evidence which meets the criteria of Federal Rule of Evidence (FRE) 702 and all U.S. Supreme Court case law applicable thereto; RULE 702. TESTIMONY BY EXPERTS If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony if the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

44. Legislative Update Hastings and Associates Key Changes to Definitions 18. “Occupational disease” means only that disease or illness which is due to causes and conditions characteristic of or peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease. An occupational disease arises out of the employment only if employment was the major cause of the resulting occupational disease and such is supported by objective medical evidence, as defined in this section;

45. Legislative Update Hastings and Associates Key Changes to Definitions 19. “Permanent impairment” means any anatomical abnormality after maximum medical improvement has been achieved, which abnormality or loss the physician considers to be capable of being evaluated at the time the rating is made. Except as otherwise provided herein, any examining physician shall only evaluate impairment in accordance with the latest publication of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” in effect at the time of the injury.

46. Legislative Update Hastings and Associates Key Changes to Definitions 22. “Maximum medical improvement” (MMI) means that no further material improvement would reasonably be expected from medical treatment or the passage of time;

47. Legislative Update Hastings and Associates Key Changes to Definitions 24.“Certified Workplace Medical Plan”(CWMP) means an organization of health care providers or any other entity, certified by the State Commissioner of Health. If plan is in place, employee now is automatically enrolled; no election option

48. Legislative Update Hastings and Associates Key Changes to Definitions 25. “Treating physician” means the licensed physician who has provided or is providing medical care to the injured employee that is selected by the employer.

49. Legislative Update Hastings and Associates Light Duty Refusal SECTION 14. AMENDATORY 2…. 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.

50. Legislative Update Hastings and Associates Light Duty Offer As long as propernotice is given TTD benefits may be terminated after notice and 15 days have elapsed Employee must be given 15 days notice and an opportunity to a hearing within 5 days on the issue of light duty employment before TTD may be terminated. (* Is five days enough time to get medical and further object?)