A detailed explanation by section. All changes effective November 1, 2010, except for establishment of a Task Force on Vocational Rehabilitation.

MAKEUP OF THE COURT—Section 1.2 The Court will be reduced from ten to eight judges by attrition. The first two vacancies that occur will not be refilled. Five judges will be assigned to Oklahoma City and three assigned to Tulsa. The Tulsa Court cannot be closed without approval of the legislature. Future judges must have a minimum of five years’ workers’ compensation experience. State Senate confirmation will be required on future judge appointments. A judge will be appointed to an eight-year term, but can be reappointed after a three-year hiatus. All current judges are allowed to apply for one additional eight-year term. All current judges must go back through the Judicial Nominating Commission when applying for another term. Terms will end on February 1, rather than July 1, so that the Senate can confirm the governor’s appointment during the legislative session. None of the present judges who are affected by the shortened term will be penalized in salary, time served, or judicial retirement.

DEFINITIONS---Section 3 Parties to a franchise agreement will not be considered employees. “Major cause” redefined as “more than 50% of the resulting injury, disease, or illness.” Major cause must be proved by a preponderance of the evidence. A Court finding that the workplace was not the major cause of the injury, disease, or illness will not destroy the exclusive remedy of workers’ compensation and a subsequent district court action is not allowed. Objective medical evidence cannot be based upon complaints of pain. Objective findings do not include complaints under the subjective control of the injured worker. Impairment ratings to the spine are governed by the AMA Guides. Medical opinions regarding compensability and impairment must be stated with a reasonable degree of medical certainty. Continuing Medical Maintenance DOES NOT include diagnostic tests, surgery, injections, counseling, physical therapy, or pain management devices unless specifically authorized by the Court. Injections are not considered surgery. “Evidence-based,” “Scientifically based,” “peer review,” “nationally recognized,” and “state developed” protocols and guidelines are defined in detail.

COURT EN BANC--APPEALS---Section 3.6 A court reporter will record all proceedings of the Court En Banc. Any decision which reverses an order of the trial judge shall contain specific findings as to the reason for the reversal. The fee to appeal to the Court En Banc is raised to $175.00.

The Supreme Court may overturn a decision of the Workers’ Compensation Court based upon (1) jurisdiction (2) contrary to law (3) order procured by fraud, or (4) the order is against the clear weight of the evidence. A $100 fee for the Workers’ Compensation Court will be assessed for each appeal taken to the Supreme Court.

COUNSELOR PROGRAM---Section 3.9 When a Form 2 is filed, the injured worker shall be notified by the Court of the availability of mediation, the Court Counselor Program, and other information suggested by the Administrator.

MEDIATION---Section 3.10 Claimant shall always be present unless agreed upon by the parties. The employer or insurance company must have a person available either in person or by telephone with sufficient authority to settle all issues of the claim. The person must be available for the entire time of the mediation. If the respondent does not have available someone with full authority, the mediator shall report the occurrence to the judge who may assess attorney’s fees, costs, and expenses.

EXCEPTIONS TO COMPENSABILITY—Section 11 Injuries occurring to and from the workplace are not compensable unless there is a special mission at the direction of the employer.

EXCLUSIVE REMEDY---Section 12 Workers’ compensation is an exclusive remedy unless employer has no insurance or employer commits an intentional tort. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court. Allows an injured worker to maintain an action either in the Workers’ Compensation Court or the district court, but not both, for intentional tort or when the employer has failed to secure its workers’ compensation obligations.

LIGHT DUTY-MEDICAL CARE---Section 14 An injured worker is not entitled to TTD if he refuses light duty after the treating doctor has released him for work with restrictions and the employer has made a good faith offer of light duty in writing. Continuing medical maintenance cannot be awarded by the Court if it is not recommended by the treating doctor, unless there is clear and convincing evidence to the contrary. The Court can appoint an Independent Medical Examiner at any time to determine the nature and extent of continuing medical maintenance.

PERMANENT TOTAL DISABILITY—Section 22 Permanent total benefits are no longer payable for the life of the injured worker. Benefits are due to the age the worker can draw maximum Social Security retirement benefits, or 15 years, whichever period is longer. If the worker dies of causes unrelated to the injury, any person allowed to revive the claim can receive benefits only to the time of expiration of benefits if the worker had lived.

PERMANENT PARTIAL DISABILITY---Section 22 The maximum PPD rate is reduced to $323 per week and frozen for five years. The minimum PPD rate is raised to $150.

SOFT TISSUE INJURIES---Section 22 Provides limitations on TTD for workers who suffer soft tissue injuries that do not result in surgery. As an incentive to employers to provide prompt medical care, any limitation of TTD in soft tissue cases is available only if the employer provides “prompt medical care.” If such care is provided, there is an eight-week limitation on TTD. If the treating doctor recommends injections, the worker may petition the Court for an additional eight weeks of TTD. If the treating doctor recommends surgery, an additional 16 weeks may be granted. If the worker causes surgery to be delayed more than 120 days after approval or Court order authorizing surgery, TTD shall be terminated. Once surgery is performed, this section does not apply and worker is entitled to 300-week limitation. All joint replacements are added as an exception to the definition of a “soft tissue” injury.

PHYSICIAN ADVISORY COMMITTEE---Section 201.1 PAC role expanded to include establishing guidelines to provide an analytical framework for the entire evaluation and treatment of injured workers. The Workers’ Compensation Court is bound by findings and recommendations of the PAC in regard to reasonable and necessary medical care, duration of treatment, continuing medical maintenance, and development of a list of allowed prescription medicines. The Court can deviate from such guidelines only if there is clear and convincing evidence to the contrary. Any deviation must be specifically explained in a Court order.

FEES---Section 93 and 93.2 The final award fee is raised to $140.00. The case reopen fee is raised to $130.00. The application fee paid by self-insureds and servicing companies is raised to $1,000. Creates a new fee for Court review of interim financial statements and/or loss runs submitted by a self-insured employer. The fee is $500 per review, not to exceed $1,000 per employer per year.

MEDICAL FEE REIMBURSEMENT—Section 201 Gives the Administrator sweeping powers to withhold payment of medical bills to providers who knowingly charge excessively or who maintain a pattern of abusive practices.

VOCATIONAL REHABILITATION A Task Force on Vocational Rehabilitation for Injured Workers is established to make recommendations on ways to improve vocational rehabilitation programs for injured workers who cannot return to their former employment because of restrictions due to an injury. The Task Force report is due November 30, 2010.

INSURANCE ADJUSTERS Adjusters working for insurance carriers who write workers’ compensation policies in Oklahoma must be licensed under the Oklahoma Insurance Adjusting Act and must complete six hours of annual continuing education regarding Oklahoma workers’ compensation law.

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