Oklahoma Legislature H1224

1 STATE OF OKLAHOMA

2 1st Session of the 53rd Legislature (2011)

3 HOUSE BILL 1224 By: McCullough

4

5

6 AS INTRODUCED

7 An Act relating to workers’ compensation; amending 85
O.S. 2001, Section 1.1, as amended by Section 7,
8 Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85
O.S. Supp. 2010, Section 1.1), which relates to
9 Workers’ Compensation Act applicability limitations;
modifying agency designation; amending 85 O.S. 2001,
10 Section 1.2, as amended by Section 1, Chapter 453,
O.S.L. 2010 (85 O.S. Supp. 2010, Section 1.2), which
11 relates to the creation and content of the Workers’
Compensation Court; creating Workers’ Compensation
12 Court of Existing Claims; providing for the
appointment of four judges; vacating all existing
13 court positions; providing for the selection of new
judges; modifying agency designation; requiring
14 Senate confirmation of new judges; providing for
appointments to the court; providing for selection of
15 judges in certain circumstances; requiring that
judges have five years of experience in workers’
16 compensation matters; requiring Senate confirmation
of any reappointed judge; specifying which claims the
17 Workers' Compensation Court of Existing Claims shall
adjudicate; amending 85 O.S. 2001, Section 1.2A,
18 which relates to compensation of certain judges;
19 Section 1.3, as amended by Section 8, Chapter 1, 1st
Extraordinary Session, O.S.L. 2005 (85 O.S. Supp.
20 2010, Section 1.3), which relates to the selection
and duties of the administrator of the Workers’
21 Compensation Court; modifying agency designations;
creating the Workers’ Compensation Commission;
22 providing for appointment of three Commissioners;
specifying qualifications for Commission; specifying
23 Commission shall consist of at least one attorney and
one physician; providing for compensation of
24 Commissioners; establishing the position of

Req. No. 5555 Page 1

1 administrative law judge within the workers’
compensation system; specifying jurisdictional
2 regions for administrative law judges; providing for
venue of workers' compensation claims; requiring
3 administrative law judges be confirmed by the Senate;
allowing for hearings by videoconference in certain
4 circumstances; authorizing Governor to remove
Commissioners under certain circumstances;
5 establishing procedure for removal of Commissioners;
requiring Senate confirmation of removals; requiring
6 a representative of the Attorney General to attend
such removals and advise or assist the Senate;
7 providing for the subpoena of witnesses in removal
proceedings; requiring Governor to provide certain
8 information to the Secretary of State upon the
removal of a Commissioner; specifying that
9 Commissioners shall be officers of the state;
requiring Commission members to take an oath of
10 office; authorizing certain business be conducted
with a quorum of Commissioners; authorizing the use
11 of an office by the Commissioners; requiring
Commissioners to conduct hearings at certain career
12 or technology education centers; providing for the
creation and use of an official seal; authorizing
13 Commission to take certain administrative actions;
requiring Commission to give notice of certain
14 actions; specifying content of notice; providing that
notice be sent to certain interested persons;
15 requiring Commission compliance with the
Administrative Procedures Act; providing for the
16 payment of certain expenditures; authorizing the
appointment of certain staff; providing for the
17 compensation of certain rate experts; providing for
salaries of certain employees; specifying
18 administrative law judge duties; limiting
administrative law judge authority to issues of
19 compensability; providing for traveling expenses by
Commission and Commission’s employees; specifying
20 Commission’s power and duties; authorizing Commission
to hear and determine compensation claims;
21 authorizing Commission to hear appeals from certain
orders; authorizing Commission to hire a Chief
22 Medical Officer; authorizing Commission to approve
certain medical and legal claims; authorizing
23 Commission to excuse certain failures to provide
notice; authorizing Commission to determine awards;
24 authorizing Commission to make findings of fact;


1 authorizing Commission to make rulings of law;
authorizing Commission to enter orders in appealed
2 cases; authorizing Commission to specify terms of
payment and order certain reimbursements; authorizing
3 Commission to assess penalties; authorizing
Commission to prescribe certain rules and
4 regulations; authorizing Commission to issue
subpoenas, administer oaths and take testimony;
5 authorizing Commission to transfer certain excess
income to certain charitable organizations;
6 authorizing Commission to establish and impose
certain fees; providing for the deposit of certain
7 fees; requiring Commission to provide an annual
report to the Legislature; amending 85 O.S. 2001,
8 Section 3, as last amended by Section 1, Chapter 452,
O.S.L. 2010 (85 O.S. Supp. 2010, Section 3), which
9 relates to definitions; modifying definitions;
amending 85 O.S. 2001, Section 3.1, which relates to
10 death benefit definitions; modifying definitions;
providing for compensation of certain alien
11 nonresident dependents; limiting certain benefits to
nonresident dependents; amending 85 O.S. 2001,
12 Section 3.4, which relates to procedure for
commencing workers’ compensation claims; requiring
13 certain employees to report injuries to employer in
writing within a certain period; providing that
14 failure to timely report injuries shall relieve
employer of duty to compensate employee; requiring
15 employers to develop certain reporting procedures;
providing that certain signed statements exculpating
16 employer shall bar employee from compensation;
prohibiting employee remedies in certain
17 circumstances; authorizing Commission to develop
preliminary conferences procedures for workers’
18 compensation claims; providing that claimants be
advised of their rights; specifying that claimants
19 may be advised of rights at certain Career Tech
centers; authorizing Commission to facilitate
20 settlement of claims; modifying agency designation;
specifying that certain hearings shall be subject to
21 certain rules of evidence; specifying burden of
proof; providing that claim hearings shall be open to
22 the public; providing that all hearings shall be
documented by certain means; requiring that all
23 evidence be presented at initial hearing; requiring
that certain written reports be provided to opposing
24 parties; requiring notification of opposing parties


1 of intent to cross-examine certain physicians;
allowing hearing officer or Commissioner discretion
2 in admitting certain evidence; specifying the use of
certain reports and depositions by administrative law
3 judges; amending 85 O.S. 2001, Section 3.6, as
amended by Section 1, Chapter 403, O.S.L. 2010 (85
4 O.S. Supp. 2010, Section 3.6), which relates to
appellate procedures for workers’ compensation
5 claims; modifying agency designation; providing that
Commission shall hear certain appeals; authorizing
6 Commission to reverse or modify certain decisions;
providing that certain decisions of the Commission
7 shall be final; restricting Supreme Court authority
to reverse Workers' Compensation Commission decisions
8 to certain issues or grounds; authorizing Supreme
Court to require a bond in certain cases; amending 85
9 O.S. 2001, Section 3.7, which relates to powers and
duties of the Workers’ Compensation Administrator;
10 authorizing Administrator to accept and record
certain settlements; modifying agency designations;
11 deleting obsolete language; removing authority of
Administrator to adopt certain rules and impose
12 certain penalties; amending 85 O.S. 2001, Sections
3.8, 3.10, as last amended by Section 3, Chapter 403,
13 O.S.L. 2010, and 4 (85 O.S. Supp. 2010, Section
3.10), which relate to workers’ compensation general
14 provisions; modifying agency designations; amending
85 O.S. 2001, Section 11, as last amended by Section
15 2, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010,
Section 11), which relates to employer payment of
16 certain compensation; deleting reference to certain
injuries; updating statutory reference; amending 85
17 O.S. 2001, Section 12, as last amended by Section 3,
Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section
18 12), which relates to certain employer liability;
specifying applicability to certain employers;
19 deleting reference to certain rights arising under
the Oklahoma Constitution; providing penalty for
20 failure to secure compensation; authorizing
Commission to serve certain orders for certain
21 violations; providing employers opportunity to
contest certain Commission orders; allowing for
22 hearings to contest certain orders; specifying burden
of employer to overturn certain orders; providing for
23 hearings in certain disputes between employers and
insurers; requiring Commission to notify insurer of
24 certain hearings; requiring insurer to respond to


1 certain notice of hearing within a certain period;
authorizing Commission to assess certain fines for
2 certain violations; providing Commission authority to
petition district court in certain circumstances;
3 authorizing Commission to seek certain injunction;
requiring employers to post certain notices;
4 specifying certain notice requirements; specifying
that employers shall not be liable for certain
5 injuries; authorizing Commission to establish certain
rules and regulations concerning medical service
6 fees; allowing Commission to establish maximum
allowable fees; amending 85 O.S. 2001, Section 14, as
7 last amended by Section 4, Chapter 452, O.S.L. 2010
(85 O.S. Supp. 2010, Section 14), which relates to
8 the provision of medical services after an injury;
specifying that injured employees may seek hearing at
9 the Commission or the Court of Existing Claims
depending upon the date of injury; modifying agency
10 designations; providing for the limitation of certain
medical treatments; providing for the ongoing service
11 and replacement of certain medical devices; amending
85 O.S. 2001, Section 14.2, as amended by Section 16,
12 Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85
O.S. Supp. 2010, Section 14.2), which relates to the
13 selection of treating physicians under certified
workplace plans; modifying agency designations;
14 amending 85 O.S. 2001, Section 14.3, as amended by
Section 17, Chapter 1, 1st Extraordinary Session,
15 O.S.L. 2005 (85 O.S. Supp. 2010, Section 14.3), which
relates to certified workplace medical plans;
16 modifying agency designation; extending period an
insured may contract with an independent insurer in
17 certain circumstances; requiring employees to obtain
written confirmation that dispute resolution has
18 failed and been exhausted; specifying that certain
medical evaluations shall not be admissible if
19 certain conditions have not been met; authorizing
Commission to alter the course of certain medical
20 treatments under certain conditions; requiring all
state agencies to adopt and implement certain
21 certified workplace plan; amending 85 O.S. 2001,
Section 15, which relates to employer requirement of
22 providing prosthetic devices in certain
circumstances; modifying agency designation; amending
23 85 O.S. 2001, Section 16, as amended by Section 18,
Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85
24 O.S. Supp. 2010, Section 16), which relates to


1 vocational rehabilitation and job placement services;
requiring Commission to hire a Vocational
2 Rehabilitation Director; establishing qualifications
of Vocational Rehabilitation Director; specifying
3 duties of Vocational Rehabilitation Director;
authorizing the request of vocational rehabilitation
4 services by parties to a compensation claim under
certain circumstances; authorizing Vocational
5 Rehabilitation Director to issue certain
administrative orders; providing that such
6 administrative orders are appealable to Commission;
authorizing Director to assign certain vocational
7 rehabilitation counselors in certain circumstances;
providing certain services to be paid by employer;
8 authorizing concurrent medical treatment and
vocational rehabilitation services; modifying agency
9 designation; specifying that vocational
rehabilitation services shall be payable only to
10 rehabilitating provider; extending time frame for
certain vocational rehabilitation services;
11 prohibiting the payment for vocational rehabilitation
to be a separate item in a settlement or included in
12 a calculation of legal fees; amending 85 O.S. 2001,
Section 17, as last amended by Section 19, Chapter 1,
13 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp.
2010, Section 17), which relates to the determination
14 of disability; modifying agency designations;
providing that determination of disability shall be
15 the responsibility of the Chief Medical Officer;
requiring all claims for disability be supported by
16 certain testimony and include certain evaluations;
requiring evaluation be sent to parties within seven
17 days; requiring medical opinions be stated within a
reasonable degree of medical certainty; defining
18 terms; stating purpose of program; specifying scope
of program; establishing qualifications of physicians
19 seeking appointment to Medical Impairment Rating
Registry; specifying application procedure for
20 physicians seeking appointment to Medical Impairment
Rating Registry; specifying appointment and retention
21 requirements of certain physicians; providing appeal
procedure for physicians denied appointment on
22 Registry; specifying circumstances wherein a Medical
Impairment Rating Registry physician shall be
23 appointed; providing for the selection of a Registry
physician; providing procedure for certain
24 disagreements between the parties; providing for the


1 selection of a Registry physician; establishing that
the impairment rating determined by the Medical
2 Impairment Rating Registry physician shall be
presumed accurate; authorizing the Program
3 Coordinator to select a Registry physician under
certain circumstances; requiring Program Coordinator
4 to contact a selected Registry physician within three
days after selection; requiring parties to submit
5 copies of all pertinent medical records to the
Registry physician; authorizing Program Coordinator
6 certain discretion in accepting certain untimely
submitted records; specifying how medical records
7 shall be organized; prohibiting the submission of
certain types of evidence to the Registry physician;
8 requiring that claimants complete all forms;
providing for assistance to claimants in completing
9 forms; authorizing the use of a translator in certain
circumstances; providing for reimbursement of
10 claimant travel under certain circumstances;
providing for the payment of a Registry physician;
11 specifying fee amounts based upon the length of time
taken to complete the report; specifying what the
12 Registry physician fee includes; providing for late
fees and penalties under certain circumstances;
13 providing procedure for cancellation of evaluation
appointments; allowing evaluations of multiple
14 impairments by different Registry physicians in
certain circumstances; prohibiting certain physicians
15 from rendering certain opinions; requiring disclosure
by physicians in certain potential conflict of
16 interest circumstances; providing penalties for
failure to comply with conflict of interest
17 requirements; prohibiting certain physicians from
communicating with parties except under certain
18 circumstances; requiring the requesting party to
compensate certain physicians if physician is a
19 witness at any proceeding; establishing requirements
for physicians conducting certain evaluations;
20 specifying certain requirements physicians must
follow prior to certain evaluations; specifying
21 certain requirements physicians must follow upon the
completion of certain evaluations; specifying that
22 completed reports shall be sent to the Program
Coordinator; specifying that evaluations do not
23 create a doctor-patient relationship between
claimants and physicians; providing that certain
24 physicians shall only evaluate impairment and not


1 offer medical advice or a diagnosis; prohibiting
certain physicians from recommending treatment in
2 evaluation assessments; establishing reporting
requirements of the Medical Impairment Rating report;
3 requiring that Medical Impairment Rating physicians
review attending physician evaluations; providing
4 reporting procedure if the Medical Impairment Rating
physician agrees with evaluation of attending
5 physician; providing reporting requirements if the
Impairment Rating is consistent with American Medical
6 Association guidelines; providing reporting
requirements if the Impairment Rating is not
7 consistent with certain guidelines; requiring certain
physicians explain rationale for certain ratings;
8 requiring certain physicians sign reports; providing
statement required on certain reports; providing
9 procedure if the Medical Impairment Rating physician
disagrees with attending physician determinations;
10 providing that certain physician services conclude
upon the issuance of certain report; providing that
11 Medical Impairment Ratings shall be subject to
certain review; providing for the removal of Medical
12 Impairment Rating physicians in certain
circumstances; providing grounds for removal of
13 Medical Impairment Rating physician from listing;
establishing procedure for complaints regarding
14 Medical Impairment Rating physicians; allowing
Medical Impairment Rating physicians opportunity to
15 respond to certain complaints; authorizing Chief
Medical Officer to make determinations concerning
16 certain complaints; providing procedure for
physicians to request reconsideration of certain
17 Chief Medical Officer decisions; providing procedure
for reinstatement of certain physicians to Medical
18 Impairment Rating Registry; providing Chief Medical
Officer authority to impose certain penalties;
19 providing discretion to the Chief Medical Officer
with respect to certain time limitations; requiring
20 parties to cooperate in the scheduling of certain
evaluations; prohibiting parties from seeking a
21 second opinion in certain circumstances; providing
for issuance of final determination of disability by
22 Chief Medical Officer; providing limitations for
appeal of certain Chief Medical Officer rulings;
23 authorizing Commission to select a Chief Medical
Officer; requiring confirmation of Chief Medical
24 Officer by Senate; providing for review by the


1 Commission of Chief Medical Officer’s performance;
specifying circumstances and procedure for
2 reappointment of Chief Medical Officer; providing for
compensation of Chief Medical Officer; establishing
3 duties of Chief Medical Officer; providing Commission
authority to review certain administrative orders
4 issued by the Chief Medical Officer; amending 85 O.S.
2001, Section 22, as last amended by Section 5,
5 Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section
22), which relates to compensation schedules for
6 specific injuries; providing that the loss of certain
body parts shall constitute total disability;
7 prohibiting the receipt of both permanent total
disability and any other benefit simultaneously;
8 authorizing annual certification of continuing
disability; providing authority to Commission to
9 refer certain cases to fraud unit; establishing
partial disability rates for injuries incurred on or
10 after the effective date of act; specifying that the
odd-lot doctrine shall not apply in permanent
11 disability cases; providing for the receipt of
certain benefits for injuries incurred prior to
12 effective date of act; providing the maximum amount
of compensation to be paid for certain disabilities;
13 modifying agency designation; amending 85 O.S. 2001,
Section 24.1, as amended by Section 21, Chapter 1,
14 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp.
2010, Section 24.1), which relates to record keeping
15 requirements; modifying agency designations; amending
85 O.S. 2001, Section 24.2, which relates to notice
16 requirements for certain injuries; modifying notice
requirements for certain injuries; modifying agency
17 designation; amending 85 O.S. 2001, Section 25, which
relates to the examination of injured employees;
Section 26, as amended by Section 22, Chapter 1, 1st
19 Extraordinary Session, O.S.L. 2005 (85 O.S. Supp.
2010, Section 26), which relates to specific notice
20 requirements; removing requirement that Administrator
or certain judges approve certain settlements;
21 removing requirement that Court promulgate certain
rules with respect to compromise settlements;
22 removing authority of Court to make certain rulings
with respect to payment of certain compromise
23 settlements; removing authority of Court to make
certain final decisions; modifying agency
24 designation; amending 85 O.S. 2001, Section 27.1,


1 which relates to cumulative medical testimony in
certain cases; modifying agency designation;
2 authorizing Commission to review any compensation
order, decision or award; providing for the review by
3 an administrative law judge or the Commission of
certain terminated benefits for certain reasons;
4 authorizing Commission to make certain determinations
upon review of certain compensation orders;
5 authorizing Commission to correct certain clerical
errors; amending 85 O.S. 2001, Section 30, as amended
6 by Section 23, Chapter 1, 1st Extraordinary Session,
7 relates to certain costs and penalties; modifying
agency designation; modifying certain settlement
8 offer requirements; extending certain settlement
deadlines; limiting amount claimant’s attorney may be
9 compensated in certain settlement agreements;
prohibiting claimant attorney from deducting or
10 withholding certain portions of settlement proceeds
from claimant for certain uses; amending 85 O.S.
11 2001, Section 41, which relates to the payment of
certain permanent partial or permanent total awards;
Section 41.1, which relates to whether certain
13 payments may be credited to employer or insurer;
authorizing employers or insurers to deduct certain
14 payments made from certain permanent disability
awards; removing authority of certain self-insured
15 employers to take credit for certain overpayments;
amending 85 O.S. 2001, Section 42, as amended by
16 Section 1, Chapter 236, O.S.L. 2010 (85 O.S. Supp.
2010, Section 42), which relates to the nonpayment or
17 failure to pay awards under certain circumstances;
modifying agency designation; modifying applicable
18 interest rate to that of average Treasury Bills from
preceding year; amending 85 O.S. 2001, Section 43, as
19 amended by Section 24, Chapter 1, 1st Extraordinary
Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section
20 43), which relates to time limitations of injury or
death claims; reducing amount of time a claimant may
21 claim compensation after injury; restricting the
filing of certain claims after last medical
22 treatment; reducing amount of time a claimant may
seek compensation for repeated trauma injuries;
23 reducing amount of time a claimant may make certain
claims after termination of employment; reducing
24 amount of time a claimant may pursue a hearing on


1 certain claims; reducing amount of time claims may be
heard after termination of payments; modifying agency
2 designation; authorizing Court to reopen certain
claims; amending 85 O.S. 2001, Section 44, as amended
3 by Section 25, Chapter 1, 1st Extraordinary Session,
4 relates to certain claims against third-party
insurers; modifying agency designation; removing
5 prohibition against employer or insurer pursuing the
right of subrogation in certain circumstances;
6 removing provision allowing employers to have a cause
of action against third parties in certain
7 circumstances; amending 85 O.S. 2001, Section 45,
which relates to certain benefits or assets of a
8 claimant being exempt in the determination of certain
benefits; providing that the unemployment laws of any
9 other state shall not result in duplicative payment
of certain benefits; amending 85 O.S. 2001, Section
10 47.1, which relates to waiver of compensation by
employees in certain circumstances; updating agency
11 designation; amending 85 O.S. 2001, Section 48.1,
which relates to certain liens for the payment of
12 child support; modifying agency designation; amending
85 O.S. 2001, Section 61, as amended by Section 78,
13 Chapter 264, O.S.L. 2006 (85 O.S. Supp. 2010, Section
61), which relates to means by which an employer may
14 secure compensation to injured employees; modifying
agency designation; amending 85 O.S. 2001, Section
15 61.2, which relates to workplace safety plans;
16 Section 64, as last amended by Section 79, Chapter
264, O.S.L. 2006 (85 O.S. Supp. 2010, Section 64),
17 which relates to insurance policy requirements;
requiring that insurers have complete settlement
18 authority to attend certain dispute resolution
proceedings; specifying that certain violations shall
19 be subject to certain penalties in dispute resolution
proceedings; amending 85 O.S. 2001, Sections 66.1 and
20 66.2, which relate to the Individual Self-Insured
Guaranty Fund Board and the Group Self-Insurance
21 Association Guaranty Fund Board; modifying agency
designations; amending 85 O.S. 2001, Sections 80, 81,
22 84, 85 and 104, which relate to the Workers’
Compensation Act; modifying agency designation;
23 amending 85 O.S. 2001, Section 110, as amended by
Section 1, Chapter 338, O.S.L. 2002 (85 O.S. Supp.
24 2010, Section 110), which relates to inquiry into an


1 employee’s prior claims; providing that an employee’s
failure to answer truthfully certain inquiries into
2 past injuries shall subject the employee to
discharge; modifying agency designation; amending 85
3 O.S. 2001, Section 112, which relates to the Advisory
Council on Workers' Compensation; reducing membership
4 from nine to seven members; authorizing the Chairman
of the Commission to act as ex officio nonvoting
5 member; specifying Governor appointments; specifying
Speaker of the House of Representatives appointments;
6 specifying President Pro Tempore appointments;
providing for selection of an additional member;
7 prohibiting certain professionals from serving on the
Advisory Council; providing for three-year terms;
8 specifying quorum requirement of the Advisory
Council; modifying agency designations; specifying
9 that Council shall consult with the Commission and
Chief Medical Officer regarding oversight; amending
10 85 O.S. 2001, Sections 149.1 and 149.2, which relate
to rules for certain employer self-insured pools;
Section 171, as amended by Section 27, Chapter 1, 1st
12 Extraordinary Session, O.S.L. 2005 (85 O.S. Supp.
2010, Section 171), which relates to certain
13 definition; modifying agency designation; amending 85
O.S. 2001, Section 173, as last amended by Section
14 29, Chapter 1, 1st Extraordinary Session, O.S.L. 2005
(85 O.S. Supp. 2010, Section 173), which relates to
15 the creation of the Multiple Injury Trust Fund;
modifying agency designations; amending 85 O.S. 2001,
16 Section 175, as last amended by Section 30, Chapter
1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S.
17 Supp. 2010, Section 175), which relates to the
administration of the Multiple Injury Trust Fund by
18 CompSource Oklahoma; modifying agency designation;
amending 85 O.S. 2001, Section 177, which relates to
19 the creation of an administration fund; modifying
agency designations; amending 85 O.S. 2001, Section
20 201, as amended by Section 6, Chapter 403, O.S.L.
2010 (85 O.S. Supp. 2010, Section 201), which relates
21 to authority of the Administrator to impose certain
penalties on health care providers for certain
22 violations; modifying agency designation; amending 85
O.S. 2001, Section 201.1, as last amended by Section
23 6, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010,
Section 201.1), which relates to the creation of a
24 Physician Advisory Committee; modifying agency


1 designation; providing that recommendations made by
the committee concerning acceptable deviations from
2 certain guidelines shall be reviewed and adopted by
the Chief Medical Officer; removing authority of
3 Committee to make certain determinations with respect
to permanent impairment; requiring treatment
4 guidelines be recommended to Chief Medical Officer
for use in all workers’ compensation claims; defining
5 medical treatment for certain purposes; requiring
that recommended guidelines reflect evidence and
6 scientifically approved standards of medical
treatment; providing that certain treatments which
7 are outside of the scope of treatment guidelines may
be approved in certain circumstances; requiring Chief
8 Medical Officer to explain in order why treatment is
appropriately outside of medical guidelines; removing
9 provisions establishing treatment guidelines;
modifying agency designation; directing Committee to
10 develop certain list; directing Committee to assist
Administrator in developing certain plan; defining
11 terms; amending 85 O.S. 2001, Section 203, which
relates to disputes between carriers or employers;
Section 211, which relates to authorization to
13 inspect or examine certain records; modifying agency
designation; repealing 85 O.S. 2001, Section 3.5, as
14 amended by Section 10, Chapter 1, 1st Extraordinary
Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section
15 3.5), which relates to venue of workers’ compensation
claims; repealing 85 O.S. 2001, Section 21, which
16 relates to the computation of average weekly wages;
repealing 85 O.S. 2001, Section 28, which relates to
17 the review of awards by the Court; repealing 85 O.S.
2001, Section 69.5, which relates to powers and
18 duties of the Workers’ Compensation Court Presiding
Judge; repealing 85 O.S. 2001, Section 122, which
19 relates to the abrogation of the right to recover
damages in certain circumstances; repealing 85 O.S.
20 2001, Section 201.2, which relates to requiring the
Physician Advisory Committee to develop certain
21 recommendations; providing for codification; and
providing an effective date.
22

23

24 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:


1 SECTION 1. AMENDATORY 85 O.S. 2001, Section 1.1, as

2 amended by Section 7, Chapter 1, 1st Extraordinary Session, O.S.L.

3 2005 (85 O.S. Supp. 2010, Section 1.1), is amended to read as

4 follows:

5 Section 1.1 A. The Workers’ Compensation Act shall not apply

6 to cases of occupational disease in which the last injurious

7 exposure to the hazards of such disease occurred before June 6,

8 1953.

9 B. The burden of proof, by a preponderance of the evidence,

10 shall be on the party requesting benefits or relief pursuant to the

11 provisions of the Workers’ Compensation Act unless otherwise

12 specifically provided for by law.

13 C. The provisions of the Workers’ Compensation Act shall be

14 strictly construed by the Workers’ Compensation Court or Commission

15 and any appellate court reviewing a decision of the Workers’

16 Compensation Court or Commission.


18 amended by Section 1, Chapter 453, O.S.L. 2010 (85 O.S. Supp. 2010,

19 Section 1.2), is amended to read as follows:

20 Section 1.2 A. There is hereby created the Workers'

21 Compensation Court of Existing Claims which shall consist of eight

22 (8) four (4) judges. Each judge of the Court shall be appointed to

23 a designated numbered position on the Court. The positions shall be

24 numbered one through eight, five of which shall be permanently


1 assigned to the Oklahoma City Workers’ Compensation Court and three

2 of which shall be permanently assigned to the Tulsa Workers’

3 Compensation Court. The initial terms of the judges by position

4 number shall expire on the following dates:

5 Position 1 shall expire 2-1-14.









14 Position 10 shall expire 2-1-14. The next two positions to

15 become vacant on or after November 1, 2010, shall not be refilled.

16 Thereafter, each position shall be filled by a judge appointed

17 to serve an eight-year term. After a judge serves an eight-year

18 term, such judge shall be eligible to reapply for an additional term

19 after the lapse of a period of not less than three (3) years.

20 Provided, the judges serving unexpired terms on the effective

21 date of this act shall be eligible upon expiration of such terms for

22 appointment to one term of eight (8) years pursuant to this section.

23 A judge serving an unexpired term on the effective date of this act

24 who serves until such term expires shall be deemed to have served a


1 full six-year term. If the judge is not reappointed, such judge

2 shall receive full salary, benefits, vesting rights and judicial

3 service for retirement purposes during active judicial service for a

4 period of not less than five (5) months. Effective November 1,

5 2011, all existing positions of the Workers’ Compensation Court

6 shall become vacant. The Governor shall appoint four new judges

7 from a list of nominees provided by the Judicial Nominating

8 Commission who shall be subject to confirmation by a majority of the

9 Senate. When a vacancy on the Court of Existing Claims occurs or is

10 certain to occur or for initial appointments to the Court, the

11 Judicial Nominating Commission shall choose and submit to the

12 Governor and the Chief Justice of the Supreme Court the names of

13 three persons for each appointment, each of whom has previously

14 notified the Commission in writing that he or she will serve as a

15 judge if appointed. The Governor shall appoint one of the nominees

16 to fill the vacancy with the advice and consent of the Senate. If

17 the Senate fails to confirm within ninety (90) days, the Governor

18 may select from the two remaining nominees or request three

19 additional nominees from the Judicial Nominating Commission. If the

20 Governor fails to do so within sixty (60) days, the Chief Justice of

21 the Supreme Court shall appoint one of the nominees with the advice

22 and consent of the Senate, the appointment to be certified to the

23 Secretary of State. If the Senate is not in session when an

24 appointment is made, the Senate must confirm such appointment during


1 its next regular session. If the Senate fails to confirm such

2 appointment, the Governor shall ask the Judicial Nominating

3 Commission for the names of three persons, which shall not include

4 the name of the candidate not confirmed, and shall submit a new

5 candidate to the Senate for confirmation within thirty (30) days of

6 receipt of such nominees.

7 B. A judge of the Court of Existing Claims shall have been

8 licensed to practice law in this state for a period of not less than

9 five (5) years and shall have not less than five (5) years of

10 workers’ compensation experience prior to appointment. Each judge,

11 before entering upon the duties of office, shall take and subscribe

12 to an oath of office and file the same with the Secretary of State.

13 Each judge shall continue to serve until his or her successor has

14 been appointed and qualified. A judge may be removed for cause by

15 the Court on the Judiciary prior to the expiration of his or her

16 term.

17 C. Each judge shall receive a salary equal to that paid to a

18 district judge of this state, and shall devote full time to his or

19 her duties and shall not engage in the private practice of law

20 during the term in office.

21 D. The Governor shall appoint from among the judges of the

22 Workers' Compensation Court of Existing Claims a presiding judge of

23 that Court who shall serve for a two-year term commencing with the

24 initial appointment beginning January 1, 1987. Any judge so


1 appointed shall not serve more than two times in succession. The

2 presiding judge shall preside at all hearings held by the Court of

3 Existing Claims, preside at such meetings of the judges of the Court

4 of Existing Claims as may be necessary and perform such other

5 supervisory duties as the needs of the Court of Existing Claims may

6 require. The presiding judge may designate one of the other judges

7 to act as presiding judge in his or her place whenever necessary

8 during the disqualification, disability, or absence of the presiding

9 judge. During the disqualification, disability, or absence of the

10 presiding judge, the acting presiding judge shall exercise all of

11 the powers of the presiding judge.

12 E. The Court of Existing Claims and the Workers’ Compensation

13 Commission as defined in this act shall have the authority to adopt

14 reasonable rules within its respective areas of responsibility

15 including the rules of procedure for the Court en banc, after notice

16 and public hearing, for effecting the purposes of the Workers'

17 Compensation Act. All of the judges of the Court of Existing Claims

18 and Commissioners for the Workers’ Compensation Commission shall be

19 present at all meetings wherein their respective rules are adopted

20 or amended. All rules, upon adoption, shall be submitted to the

21 Supreme Court, which shall either approve or disapprove them within

22 thirty (30) days. All rules, upon approval by the Supreme Court,

23 shall be published and be made available to the public and, if not

24


1 inconsistent with the law, shall be binding in the administration of

2 the Workers' Compensation Act.

3 F. The Court of Existing Claims is hereby designated and

4 confirmed as a court of record, with for all workers’ compensation

5 claims for which the date of injury was prior to November 1, 2011.

6 With respect to any matter within the limits of its jurisdiction

7 their respective jurisdictions, and within such limits the judges or

8 Commissioners thereof shall possess the powers and prerogatives of

9 the judges of the other courts of record of this state, including

10 the power to punish for contempt those persons who disobey a

11 subpoena, or refuse to be sworn or to answer as a witness, when

12 lawfully ordered to do so.

13 G. The principal office of the Court of Existing Claims shall

14 be situated in the City of Oklahoma City in quarters assigned by the

15 Department of Central Services. The Court of Existing Claims may

16 hold hearings in any city of this state. The Tulsa Workers’

17 Compensation Court shall not be closed without the approval of the

18 Legislature.

19 H. All county commissioners and presiding district judges of

20 this state shall make quarters available for the conducting of

21 hearings by a judge of the Court of Existing Claims upon request by

22 the Court of Existing Claims.

23 I. The judges of the Court of Existing Claims shall determine

24 the qualifications necessary for the job of Administrator. Said


1 qualifications shall be submitted to the Chief Justice of the

2 Supreme Court for approval, disapproval or modification.

3 J. Judges of the Workers' Compensation Court of Existing Claims

4 or Commissioners for the Workers’ Compensation Commission may punish

5 for direct contempt pursuant to Sections 565, 565.1 and 566 of Title

6 21 of the Oklahoma Statutes.

7 SECTION 3. AMENDATORY 85 O.S. 2001, Section 1.2A, is

8 amended to read as follows:

9 Section 1.2A Notwithstanding other limits established by law,

10 beginning January 1, 1998, the following judicial officers shall

11 receive compensation for their services, payable monthly as follows:

12 A judge of the Workers' Compensation Court of Existing Claims or

13 Commissioner of the Workers’ Compensation Commission shall receive a

14 salary as prescribed by Section 1.2 of Title 85 of the Oklahoma

15 Statutes this title.


17 amended by Section 8, Chapter 1, 1st Extraordinary Session, O.S.L.

18 2005 (85 O.S. Supp. 2010, Section 1.3), is amended to read as

19 follows:

20 Section 1.3 A. The chief administrative officer of the

21 Workers' Compensation Court of Existing Claims shall be the

22 Administrator, who shall be subject to the general supervision of

23 the presiding judge of the Court of Existing Claims, subject to the

24


1 general administrative authority of the Chief Justice of the Supreme

2 Court.

3 B. The person serving as Administrator on the date of passage

4 and approval of this act shall continue to serve as Administrator of

5 the Court of Existing Claims, provided said person is serving as

6 Administrator on the effective date of this act.

7 C. Except as provided in subsection B of this section, the

8 Administrator shall be appointed by the Governor.

9 D. The salary of the Administrator shall be ninety percent

10 (90%) of the authorized salary of a judge of the Court of Existing

11 Claims.

12 E. The Administrator shall serve a six-year term. During the

13 term, the Administrator may be removed from office only for cause,

14 as provided by law for the removal of officers not subject to

15 impeachment, pursuant to the provisions of Sections 1181 through

16 1197 of Title 22 of the Oklahoma Statutes.

17 F. An Administrator who otherwise qualifies to serve as a judge

18 of the Court of Existing Claims shall not be eligible to serve as a

19 judge of the Court of Existing Claims for a period of one (1) year

20 from the last date served as Administrator of the Court.

21 G. In addition to other duties set forth in Title 85 of the

22 Oklahoma Statutes this title, the Administrator, subject to approval

23 of the presiding judge, shall organize, direct and develop the

24 administrative work of the Court of Existing Claims, including the


1 docketing, clerical, technical and financial work, establish hours

2 of operation, and perform such other duties relating to matters

3 within the purview of the Court of Existing Claims as any judge of

4 the Court of Existing Claims may request.

5 H. The Administrator shall employ other employees of the Court

6 of Existing Claims, within budgetary limitation, necessary to carry

7 out the work and orders of the Court of Existing Claims in an

8 efficient and expedient manner.

9 SECTION 5. NEW LAW A new section of law to be codified

10 in the Oklahoma Statutes as Section 1.4 of Title 85, unless there is

11 created a duplication in numbering, reads as follows:

12 A. There is hereby created the Workers' Compensation

13 Commission. The Workers’ Compensation Commission shall consist of

14 three (3) members appointed by the Governor who shall be confirmed

15 by the State Senate for terms of six (6) years who shall devote

16 their entire time to the duties of the Commission and shall

17 administer the provisions of this act.

18 One member shall be an attorney, who shall be Chair of the

19 Commission and who shall have been engaged in active practice of law

20 in the State of Oklahoma for not less than five (5) years next

21 preceding the date of appointment and who shall have at least five

22 (5) years of experience in workers’ compensation matters in

23 Oklahoma. Two members shall be individuals who shall each have at

24 least five (5) years of experience and expertise in the field of


1 workers’ compensation in Oklahoma. These two members shall not be

2 required to be attorneys; however, one of these two members shall be

3 a physician as defined in Section 14 of Title 85 of the Oklahoma

4 Statutes.

5 B. Each member shall receive a salary equal to that of a

6 district judge of this state. The salaries shall be paid from the

7 Workers’ Compensation Fund and shall be paid in the manner as are

8 salaries of other state officials or employees.




12 A. Under the jurisdiction of the Workers’ Compensation

13 Commission there are hereby created the positions of administrative

14 law judges. Such judges shall be hired by the Commission and shall

15 be located so that one each is permanently assigned to the

16 Southeast, Southwest, Northwest and Northeast regions of the state.

17 Four additional judges shall be hired by the Commission and shall be

18 located two in Tulsa and two in Oklahoma City.

19 B. The counties located in the Southeast region shall be:

20 Atoka, Bryan, Carter, Choctaw, Coal, Garvin, Haskell, Hughes,

21 Johnston, Latimer, LeFlore, Love, Marshall, McCurtain, McIntosh,

22 Murray, Okfuskee, Pittsburg, Pontotoc, Pushmataha and Seminole.

23

24


1 C. The counties located in the Southwest region shall be:

2 Beckham, Caddo, Comanche, Cotton, Grady, Greer, Harmon, Jackson,

3 Jefferson, Kiowa, Stephens, Tillman and Washita.

4 D. The counties located in the Northwest region shall be:

5 Alfalfa, Blaine, Beaver, Cimarron, Custer, Dewey, Ellis, Garfield,

6 Grant, Harper, Kay, Kingfisher, Major, Noble, Payne, Roger Mills,

7 Texas, Woods and Woodward.

8 E. The counties located in the Northeast region shall be:

9 Adair, Cherokee, Craig, Delaware, Mayes, Muskogee, Nowata, Okmulgee,

10 Ottawa, Sequoyah and Washington.

11 F. The counties located in the Tulsa region shall be: Creek,

12 Osage, Pawnee, Rogers, Tulsa and Wagoner.

13 G. The counties located in the Oklahoma City region shall be:

14 Canadian, Cleveland, Lincoln, Logan, McClain, Oklahoma and

15 Pottawatomie.

16 H. All claims for workers’ compensation under Title 85 of the

17 Oklahoma Statutes shall be heard in the region of the state where

18 the accident occurred, where the claimant resided at the time of the

19 injury or where the employer has its primary place of business. The

20 determination of regional venue shall be by the priority listed

21 above, unless agreed to by both parties. All administrative law

22 judges shall be subject to confirmation by the State Senate. Upon

23 agreement of the parties, the Commission may hold hearings related

24 to a claim by a video conference.





4 A. The Governor may remove any member of the Workers’

5 Compensation Commission for inefficiency, neglect of duty, or

6 misconduct in office. The Governor shall provide that member in

7 advance a copy of the causes or charges preferred and an opportunity

8 to be publicly heard, in person or by counsel, upon not less than

9 ten (10) days’ notice. Such removal shall be confirmed by a

10 majority of the Senate.

11 B. A representative of the Office of the Attorney General shall

12 attend the proceedings and, upon the request of the Governor, shall

13 advise or assist the Senate in the proceedings.

14 C. Either party may require the attendance and testimony of

15 witnesses as provided in Title 12 of the Oklahoma Statutes.

16 D. If a member is removed, the Governor shall file in the

17 Office of the Secretary of State a complete statement of all causes

18 or charges made against the member and findings, together with a

19 complete record of all proceedings and a transcript of testimony.

20 It shall constitute a public record of the state.

21 E. The Senate shall have the authority to subpoena and take

22 testimony from any party to the removal, including, but not limited

23 to, the Governor.

24





4 A. Members of the Workers’ Compensation Commission shall be

5 considered officers of the state and shall take the oath prescribed

6 by the Oklahoma Constitution and the laws of Oklahoma.

7 B. Except when adopting rules, which requires all members to be

8 present and participating, a majority of the Commission shall

9 constitute a quorum for the transaction of business, and vacancies

10 shall not impair the right of the remaining members to exercise all

11 the powers of the full Commission so long as a majority remains.

12 C. 1. The Commission shall maintain and keep open, during

13 reasonable business hours, an office in Oklahoma City, for the

14 transaction of business, at which office its official records and

15 papers shall be kept.

16 2. The Commission or any member of the Commission shall hold

17 sessions and conduct hearings at any local career and technology

18 education center, also known as state-sponsored Career Tech, within

19 the state.

20 D. The Commission shall have a seal for authentication of its

21 orders, awards, and proceedings, which shall have inscribed the

22 words: “Workers’ Compensation Commission, State of Oklahoma”.

23

24





4 A. 1. For the purpose of administering the provisions of this

5 act, the Workers’ Compensation Commission is authorized:

6 a. to make such rules and regulations as may be found

7 necessary,

8 b. to appoint and fix the compensation of temporary

9 technical assistants and medical and legal advisers

10 and to appoint and to fix the compensation of clerical

11 assistants and other officers and employees, and

12 c. to make such expenditures, including those for

13 personal services, rent, books, periodicals, office

14 equipment, and supplies, for printing and binding as

15 may be necessary, and for informing people of the

16 Counselor program.

17 2. a. Prior to the adoption, prescription, amendment

18 modification, or repeal of any rule, regulation, or

19 form, the Commission shall give at least forty-five

20 (45) days’ notice of its intended action.

21 b. The notice shall include a statement of the terms or

22 substance of the intended action or description of the

23 subjects and issues involved, and the time, place, and

24


1 manner in which interested persons may present their

2 views thereon.

3 c. The notice shall be mailed to any person specified by

4 law or who shall have requested advance notice of

5 rule-making proceedings.

6 3. The Commission shall afford all interested persons a

7 reasonable opportunity to submit written data, views, or arguments,

8 and, if the Commission in its discretion directs, oral testimony or

9 argument. The Commission shall comply with the Administrative

10 Procedures Act.

11 4. All expenditures of the Commission in the administration of

12 this act shall be allowed and paid from the Workers’ Compensation

13 Fund upon the presentation of itemized vouchers approved by the

14 Commission.

15 B. 1. The Commission may appoint as many persons to be

16 examiners, experts, investigators, counselors, clerks, and other

17 employees as it deems necessary to effectuate the provisions of this

18 act.

19 2. Rate experts shall be considered employees of the Commission

20 and the Insurance Commissioner and shall be paid from the Workers’

21 Compensation Fund.

22 3. Employees appointed pursuant to this subsection shall

23 receive an annual salary to be fixed by the Commission within the

24 appropriation made for the Commission.


1 C. It shall be the duty of an administrative law judge, under

2 the rules adopted by the Commission, to hear and determine claims

3 for compensation and to conduct hearings and investigations and to

4 make such orders, decisions, and determinations as may be required

5 by any rule or order of the Commission. The duty of an

6 administrative law judge shall be to rule only on issues of

7 determination of eligibility for compensation, and shall notify both

8 parties of that decision. If the claim is deemed compensable, the

9 administrative law judge shall direct medical treatment, if

10 appropriate, be provided by a physician selected by the employer,

11 and temporary total disability, if appropriate.




15 Any member or employee of the Workers’ Compensation Commission

16 shall be entitled to receive necessary traveling expenses actually

17 incurred and for subsistence while traveling on official business

18 and away from the designated station of that member or employee.

19 The expenses shall be certified by the person who incurred them and

20 shall be allowed and paid upon presentation of vouchers approved by

21 the Commission.


23 in the Oklahoma Statutes as Section 1.10 of Title 85, unless there

24 is created a duplication in numbering, reads as follows:


1 A. In addition to its other duties and powers, the Workers’

2 Compensation Commission is granted full power and authority to:

3 1. Hear and determine all claims for compensation, including,

4 but not limited to, claims based upon injuries that occurred outside

5 the state for which compensation is payable under this act;

6 2. Employ a Chief Medical Officer and special medical examiners

7 and advisors as necessary who shall be paid a reasonable amount per

8 day to be determined by the Commission, plus reasonable traveling

9 expenses;

10 3. Hear appeals from orders made by the Chief Medical Officer

11 regarding ratings of permanent disability, need for medical services

12 or assignment of independent medical evaluations;

13 4. Approve claims for medical services and attorney fees;

14 5. Excuse failure to give notice either of injury or death of

15 any employee;

16 6. Make, modify, or rescind awards, and make and enter findings

17 of fact and rulings of law;

18 7. Enter orders in appealed cases;

19 8. Determine the time for the payment of compensation and order

20 the reimbursement of employers for amounts advanced;

21 9. Assess penalties;

22 10. Prescribe rules and regulations governing the

23 representation of employees, employers, and carriers in respect to

24 claims before the Commission;


1 11. Issue subpoenas, administer oaths, and take testimony, by

2 deposition or otherwise;

3 12. Have and exercise all other powers and duties conferred or

4 imposed by this act; and

5 13. Transfer the excess of income over expenses from the

6 Commission’s annual educational conference to any nonprofit

7 charitable organization designed to provide scholarships to children

8 of workers who have been killed or become permanently and totally

9 disabled from a compensable injury, including, but not limited to,

10 any accumulation from prior years’ conferences.

11 B. 1. In addition to the other powers and duties granted to

12 the Commission in this section and otherwise provided by law, the

13 Commission is authorized to establish and impose reasonable fees to

14 recover the cost of preparation of various informative materials

15 distributed by the Commission.

16 2. The fees shall be established by regulation of the

17 Commission.

18 3. Funds derived from fees shall be deposited in the Workers’

19 Compensation Fund to be used to defray expenses incurred in

20 preparation and distribution of materials.


22 in the Oklahoma Statutes as Section 1.11 of Title 85, unless there

23 is created a duplication in numbering, reads as follows:

24


1 On or before the first day of the regular session of the

2 Legislature, the Workers’ Compensation Commission under the

3 authority of at least two of its members shall make to the Governor

4 and to the Legislature a report of the administration of this act

5 for the preceding annual period.

6 SECTION 13. AMENDATORY 85 O.S. 2001, Section 3, as last

7 amended by Section 1, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010,

8 Section 3), is amended to read as follows:

9 Section 3. As used in the Workers’ Compensation Act:

10 1. “Administrator” means the Administrator of workers’

11 compensation as provided for in the Workers’ Compensation Act;

12 2. “Amount in dispute” means the dollar value of any permanent

13 disability award granted to the employee by the Court for a

14 disability claim which is greater than the dollar amount offered by

15 the employer to the employee for such disability claim if the

16 employer admits compensability within twenty (20) days of the filing

17 of the Employee’s First Notice of Accidental Injury and Claim for

18 Compensation, has not disputed medical treatment, and has made a

19 written settlement offer within fifteen (15) thirty (30) days of the

20 employee reaching maximum medical improvement;

21 3. “Case management” means the ongoing coordination, by a case

22 manager, of health care services provided to an injured or disabled

23 worker, including, but not limited to:

24


1 a. systematically monitoring the treatment rendered and

2 the medical progress of the injured or disabled

3 worker,

4 b. ensuring that any treatment plan follows all

5 appropriate treatment protocols, utilization controls

6 and practice parameters,

7 c. assessing whether alternative health care services are

8 appropriate and delivered in a cost-effective manner

9 based upon acceptable medical standards, and

10 d. ensuring that the injured or disabled worker is

11 following the prescribed health care medical treatment

12 plan which follows acceptable medical standards as

13 adopted by the Chief Medical Officer with the advice

14 of the Physician Advisory Committee. Any final

15 decision in authorizing medical care or treatment,

16 including, but not limited to, medical device

17 equipment or prescription drug authorization, shall be

18 the sole responsibility of the loss adjuster, unless

19 such responsibility has been delegated to another in

20 writing;

21 4. “Case manager” means a person who:

22 a. is a registered nurse with a current, active

23 unencumbered license from the Oklahoma Board of

24 Nursing, or


1 b. possesses one or more of the following certifications

2 which indicate the individual has a minimum number of

3 years of case management experience, has passed a

4 national competency test and regularly obtains

5 continuing education hours to maintain certification:

6 (1) Certified Disability Management Specialist

7 (CDMS),

8 (2) Certified Case Manager (CCM),

9 (3) Certified Rehabilitation Registered Nurse (CRRN),

10 (4) Case Manager – Certified (CMC),

11 (5) Certified Occupational Health Nurse (COHN), or

12 (6) Certified Occupational Health Nurse Specialist

13 (COHN-S).

14 The case manager’s objective is to arrange for the delivery of cost-

15 effective services that meet the patient’s medical needs. The case

16 manager acts both as an ombudsman for the patient and as an agent of

17 the payor;

18 5. “Child” means any dependent child as defined by the Internal

19 Revenue Service;

20 6. “Claimant” means a person who claims benefits for an injury

21 pursuant to the provisions of the Workers’ Compensation Act;

22 6. 7. Commission” means the Workers’ Compensation Commission;

23 8. a. “Compensable injury”:

24


1 (1) means any injury or occupational illness, causing

2 internal or external harm to the body, which

3 arises out of and in the course of employment if

4 such employment was the major cause of the

5 specific injury or illness. An injury, other

6 than cumulative trauma, is compensable only if it

7 is caused by a specific incident and is

8 identifiable by time, place and occurrence unless

9 it is otherwise defined as compensable in this

10 title. A compensable injury must be established

11 by objective medical evidence, as defined in this

12 section. An injury by accident is compensable

13 only if the accident was the prevailing factor in

14 causing both the resulting medical condition and

15 disability. The "prevailing factor” is defined

16 to be the primary factor, in relation to any

17 other factor, causing both the resulting medical

18 condition and disability supported by objective

19 medical finding,

20 (2) includes heart-related or vascular injury,

21 illness or death only if an accident or the

22 claimant’s employment is the major cause of the

23 heart-related or vascular injury. A heart-

24 related or vascular injury, illness, or death is


1 a compensable injury only if, in relation to

2 other factors contributing to the physical harm,

3 an accident is the major cause of the physical

4 harm.

5 An injury, illness or death included in this

6 subparagraph shall not be deemed to be a

7 compensable injury unless it is shown that the

8 exertion of the work necessary to precipitate

9 disability or death was extraordinary and unusual

10 in comparison to the usual work of the employee

11 in the course of the regular employment of the

12 employee, or alternatively, that some unusual and

13 unpredicted incident occurred which is found to

14 have been the major cause of the physical harm.

15 Stress, physical or mental, shall not be

16 considered in determining whether the employee or

17 claimant has met the burden of proof.

18 The injury must be established by objective

19 medical evidence, as defined in this section.

20 The employee has the burden of proof to establish

21 by a preponderance of the evidence that such

22 unexpected or unforeseen injury was in fact

23 caused by the employment. There is no

24 presumption from the mere occurrence of such


1 unexpected or unforeseen injury that the injury

2 was in fact caused by the employment,

3 (3) includes personal property which is used to make

4 up the physical structure of the body, such as

5 artificial dentures, artificial limbs, glass

6 eyes, eye glasses and other prostheses which are

7 placed in or on the body to replace the physical

8 structure which became damaged as a result of the

9 injury,

10 (4) includes injury due to the willful act of a third

11 person directed against an employee because of

12 the employee’s employment, and

13 (5) includes an injury or disease resulting from a

14 vaccine administered at the direction of the

15 employer or in response to a declaration by the

16 Secretary of the United States Department of

17 Health and Human Services under the Public Health

18 Services Act to address an actual or potential

19 health risk related to the employee’s employment.

20 b. “Compensable injury” shall not include:

21 (1) mental injury that is unaccompanied by physical

22 injury, except in the case of rape, holdups,

23 witnessing killings, or violent death which

24 arises out of and in the course of employment,


1 (2) alcoholism and disabilities attributable thereto,

2 (3) drug addiction or disabilities resulting

3 therefrom, except when such addiction or

4 disability resulted from the use of drugs or

5 medicines prescribed for the treatment of the

6 initial injury by an authorized physician and the

7 employee followed the dosage prescribed,

8 (4) an employee’s use of a motor vehicle that was

9 provided to the employee by a motor vehicle

10 dealer and bears a dealer’s license plate for

11 commuting to or from work or any other nonwork

12 activity,

13 (5) injury or disability caused primarily by the

14 natural deterioration of tissue, an organ or part

15 of the body, nor by the ordinary, gradual

16 deterioration or progressive degeneration caused

17 by the aging process, unless the employment is a

18 major cause of the deterioration or degeneration

19 and is supported by objective medical evidence,

20 (6) an injury incurred by an employee by the

21 employee’s willful intention to injure oneself or

22 another,

23 (7) an injury or disease caused by exposure to a

24 toxic substance, including, but not limited to,


1 asbestos, silica, fungus or mold, unless there is

2 a preponderance of the evidence establishing that

3 exposure to the specific substance involved, at

4 the levels to which the employee was exposed, can

5 cause the injury or disease sustained by the

6 employee,

7 (8) a claim for mental stress resulting solely from

8 disciplinary action taken in good faith by the

9 employer,

10 (9) an injury resulting directly or indirectly from

11 idiopathic causes,

12 (10) any contagious or infectious disease unless it

13 arises out of and occurs during the course of

14 employment,

15 (11) death due to natural causes occurring while the

16 worker is at work,

17 (12) injury which was inflicted upon the employee at a

18 time when employment services were not being

19 performed or before the employee was hired or

20 after the employment relationship was terminated,

21 or

22 (13) injury where the accident was substantially

23 occasioned by the use of alcohol, illegal drugs,

24


1 or prescription drugs used in contravention of

2 the orders of a physician.

3 (a) The presence of alcohol, illegal drugs, or

4 prescription drugs used in contravention of

5 orders of a physician shall create a

6 rebuttable presumption that the injury or

7 accident was substantially occasioned by the

8 use of alcohol, illegal drugs, or

9 prescription drugs used in contravention of

10 orders of a physician.

11 (b) Every employee is deemed by his or her

12 performance of services to have impliedly

13 consented to reasonable and responsible

14 testing by properly trained medical or law

15 enforcement personnel for the presence of

16 any of the aforementioned substances in the

17 body of the employee.

18 (c) An employee shall not be entitled to

19 compensation unless it is proved by a

20 preponderance of the evidence that the

21 alcohol, illegal drugs, or prescription

22 utilized in contravention of the orders of

23 the physician did not substantially occasion

24 the injury or accident.


1 (d) Notwithstanding Section 554 of Title 40 of

2 the Oklahoma Statutes, a public or private

3 employer may require an employee to undergo

4 drug or alcohol testing if the employee or

5 another person has sustained a work-related

6 injury. For purposes of workers’

7 compensation, an employee who tests positive

8 for the presence of substances defined and

9 consumed pursuant to Section 465.20 of Title

10 63 of the Oklahoma Statutes, alcohol, or

11 prescription drugs not prescribed by the

12 employee’s treating medical provider shall

13 not be eligible for such compensation unless

14 the employee proves by a preponderance of

15 the evidence that the substances or alcohol

16 were not the proximate cause of the injury

17 or accident.

18 c. A compensable injury must be established by medical

19 evidence supported by objective findings as defined in

20 this act.

21 d. The burden of proof of a compensable injury shall be

22 on the employee.

23

24


1 e. When an employee is determined to have a compensable

2 injury, the employee is entitled to medical and

3 temporary disability as provided by this section.

4 (1) Permanent benefits shall be awarded only upon a

5 determination that the compensable injury was the

6 major cause of the disability or impairment.

7 (2) If any compensable injury combines with a

8 preexisting disease or condition or the natural

9 process of aging to cause or prolong disability

10 or a need for treatment, permanent benefits shall

11 be payable for the resultant condition only if

12 the compensable injury is the major cause of the

13 permanent disability or need for treatment.

14 (3) Under this subparagraph, benefits shall not be

15 payable for a condition which results from a non-

16 work-related independent intervening cause

17 following a compensable injury which causes or

18 prolongs disability or a need for treatment. A

19 non-work-related independent intervening cause

20 does not require negligence or recklessness on

21 the part of a claimant.

22 (4) Nothing in this subparagraph shall limit the

23 payment of rehabilitation benefits or benefits

24 for disfigurement as set forth in this section.


1 f. Aging and the effects of aging on a compensable injury

2 are not to be considered in determining whether there

3 has been a change in physical condition. Nor shall

4 aging or the effect of aging on a compensable injury

5 be considered in determining permanent disability

6 pursuant to this section or any other section in this

7 act. The purpose and intent of this section is to

8 annul any and all case law inconsistent with this

9 section;

10 9. “Court” means the Workers’ Compensation Court of Existing

11 Claims, the Workers’ Compensation Commission, the Chief Medical

12 Officer or any of the administrative law judges;

13 10. “Compensation” means the benefit payable to the employee or

14 the dependents of the employee in the form of:

15 a. temporary total or temporary partial disability

16 payments,

17 b. permanent partial or permanent total disability

18 payments, settlements or awards, and

19 c. other compensation which may include medical care,

20 prescription costs, other fees or costs associated

21 with physical or vocational rehabilitation and funeral

22 expenses.

23 Compensation shall be computed on the average weekly wage earned by

24 the employee in force at the time of the accident. Where the


1 injured employee was working other than full time, the average

2 weekly wage shall be determined by dividing the earnings of the

3 employee by the number of hours required to earn the wages during

4 the period not to exceed fifty-two (52) weeks preceding the week in

5 which the accident occurred and by multiplying this hourly wage by

6 the number of hours in a full-time work week as set out in this

7 title, as it applies to the claimant;

8 7. 11. “Cumulative trauma” means a compensable injury, the

9 major cause of which results from employment activities which are

10 repetitive in nature and engaged in over a period of time and which

11 is supported by objective medical evidence as defined in this

12 section;

13 8. 12. “Death” means only death resulting from a compensable

14 injury as defined in this title;

15 13. “Employer”, except when otherwise expressly stated, means a

16 person, partnership, association, limited liability company,

17 corporation, and the legal representatives of a deceased employer,

18 or the receiver or trustee of a person, partnership, association,

19 corporation, or limited liability company, departments,

20 instrumentalities and institutions of this state and divisions

21 thereof, counties and divisions thereof, public trusts, boards of

22 education and incorporated cities or towns and divisions thereof,

23 employing a person included within the term “employee” as herein

24 defined. “Employer” may also include the insurance company or


1 representative of the insurance company of the employer, if

2 appropriate;

3 9. 14. “Employee” means any person engaged in the employment of

4 any person, firm, limited liability company or corporation covered

5 by the terms of the Workers’ Compensation Act, and shall include

6 workers associating themselves together under an agreement for the

7 performance of a particular piece of work, in which event such

8 persons so associating themselves together shall be deemed employees

9 of the person having the work executed; provided, that if such

10 associated workers shall employ a worker in the execution of such

11 contract, then as to such employed worker, both the associated

12 employees and the principal employer shall at once become subject to

13 the provisions of the Workers’ Compensation Act relating to

14 independent contractors. Sole proprietors, members of a

15 partnership, individuals who are party to a franchise agreement as

16 set out by the Federal Trade Commission franchise disclosure rule,

17 16 CFR 436.1 through 436.11, members of a limited liability company

18 who own at least ten percent (10%) of the capital of the limited

19 liability company or any stockholder-employees of a corporation who

20 own ten percent (10%) or more stock in the corporation are

21 specifically excluded from the foregoing definition of “employee”,

22 and shall not be deemed to be employees as respects the benefits of

23 the Workers’ Compensation Act. Provided, a sole proprietor, member

24 of a partnership, member of a limited liability company who owns at


1 least ten percent (10%) of the capital of the limited liability

2 company or any stockholder-employee of a corporation who owns ten

3 percent (10%) or more stock in the corporation who does not so elect

4 to be covered by a policy of insurance covering benefits under the

5 Workers’ Compensation Act, when acting as a subcontractor, shall not

6 be eligible to be covered under the prime contractor’s policy of

7 workers’ compensation insurance; however, nothing herein shall

8 relieve the entities enumerated from providing workers’ compensation

9 insurance coverage for their employees. Sole proprietors, members

10 of a partnership, members of a limited liability company who own at

11 least ten percent (10%) of the capital of the limited liability

12 company or any stockholder-employees of a corporation who own ten

13 percent (10%) or more stock in the corporation may elect to include

14 the sole proprietors, any or all of the partnership members, any or

15 all of the limited liability company members or any or all

16 stockholder-employees as employees, if otherwise qualified, by

17 endorsement to the policy specifically including them under any

18 policy of insurance covering benefits under the Workers’

19 Compensation Act. When so included, the sole proprietors, members

20 of a partnership, members of a limited liability company or any or

21 all stockholder-employees shall be deemed to be employees as

22 respects the benefits of the Workers’ Compensation Act. “Employee”

23 shall also include any person who is employed by the departments,

24 instrumentalities and institutions of this state and divisions


1 thereof, counties and divisions thereof, public trusts, boards of

2 education and incorporated cities or towns and divisions thereof.

3 “Employee” shall also include a member of the Oklahoma National

4 Guard while in the performance of duties only while in response to

5 state orders and any authorized voluntary or uncompensated worker,

6 rendering services as a firefighter, peace officer or emergency

7 management worker. Provided, “employee” shall not include any other

8 person providing or performing voluntary service who receives no

9 wages for the services other than meals, drug or alcohol

10 rehabilitative therapy, transportation, lodging or reimbursement for

11 incidental expenses. “Employee” shall also include a participant in

12 a sheltered workshop program which is certified by the United States

13 Department of Labor. “Employee” shall not include a person,

14 commonly referred to as an owner-operator, who owns or leases a

15 truck-tractor or truck for hire, if the owner-operator actually

16 operates the truck-tractor or truck and if the person contracting

17 with the owner-operator is not the lessor of the truck-tractor or

18 truck. Provided, however, an owner-operator shall not be precluded

19 from workers’ compensation coverage under the Workers’ Compensation

20 Act if the owner-operator elects to participate as a sole

21 proprietor. “Employee” shall not include a person referred to as a

22 drive-away owner-operator who privately owns and utilizes a tow

23 vehicle in drive-away operations and operates independently for

24 hire, if the drive-away owner-operator actually utilizes the tow


1 vehicle and if the person contracting with the drive-away owner-

2 operator is not the lessor of the tow vehicle. Provided, however, a

3 drive-away owner-operator shall not be precluded from workers’

4 compensation coverage under the Workers’ Compensation Act if the

5 drive-away owner-operator elects to participate as a sole

6 proprietor;

7 10. 15. “Drive-away operations” include every person engaged in

8 the business of transporting and delivering new or used vehicles by

9 driving, either singly or by towbar, saddle mount or full mount

10 method, or any combination thereof, with or without towing a

11 privately owned vehicle;

12 11. 16. “Employment” includes work or labor in a trade,

13 business, occupation or activity carried on by an employer or any

14 authorized voluntary or uncompensated worker rendering services as a

15 firefighter, peace officer or emergency management worker;

16 12. “Compensation” means the money allowance payable to an

17 employee as provided for in the Workers’ Compensation Act;

18 13. a. “Compensable injury” means any injury or occupational

19 illness, causing internal or external harm to the

20 body, which arises out of and in the course of

21 employment if such employment was the major cause of

22 the specific injury or illness. An injury, other than

23 cumulative trauma, is compensable only if it is caused

24 by a specific incident and is identifiable by time,


1 place and occurrence unless it is otherwise defined as

2 compensable in this title. A compensable injury must

3 be established by objective medical evidence, as

4 defined in this section.

5 b. “Compensable injury” includes heart-related or

6 vascular injury, illness or death only if an accident

7 or the claimant’s employment is the major cause of the

8 heart-related or vascular injury. Such injury shall

9 be compensable only if it is demonstrated that the

10 exertion necessary to produce the harm was

11 extraordinary and unusual in comparison to other

12 occupations and that the occupation was the major

13 cause of the harm. The injury must be established by

14 objective medical evidence, as defined in this

15 section.

16 c. “Injury” or “personal injury” shall not include mental

17 injury that is unaccompanied by physical injury,

18 except in the case of rape which arises out of and in

19 the course of employment.

20 d. “Compensable injury” shall not include the ordinary,

21 gradual deterioration or progressive degeneration

22 caused by the aging process, unless the employment is

23 a major cause of the deterioration or degeneration and

24 is supported by objective medical evidence, as defined


1 in this section; nor shall it include injury incurred

2 while engaging in, performing or as the result of

3 engaging in or performing any recreational or social

4 activities;

5 14. 17. “Healing period” means that period for healing of an

6 injury resulting from an accident;

7 18. “Insurance Commissioner” means the Insurance Commissioner

8 of the state;

9 19. a. “Major cause” means the predominant cause of the

10 resulting injury or illness is more than fifty-one

11 percent (51%) of the cause.

12 b. A finding of major cause shall be established

13 according to the preponderance of the objective

14 medical evidence only.

15 c. A determination that a work-related injury or illness

16 is noncompensable for any reason, including a finding

17 that the workplace was not a major cause of the injury

18 or illness, shall not adversely affect the exclusive

19 remedy provisions of this title, and shall not create

20 a separate cause of action outside of this title;

21 20. “Objective findings” are those findings which cannot come

22 under the voluntary control of the patient.

23 a. When determining physical or anatomical impairment,

24 neither a physician, any other medical provider, and


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