Wednesday, August 10, 2011

Crosswalk and Disposition Tables

The Oklahoma Workers' Compensation Act is repealed, and the Oklahoma Workers' Compensation Code is adopted. Most of the old provisions have been retained, but the numbering is new and the subsections have been shuffled. For example §3 (Definitions) of the Act is now §308 of the Code.

Tish Sommer, Special Counsel of the Oklahoma Workers' Compensation Court, alleviated this chaos by creating crosswalk and disposition tables that permit a quick, painless transition from the Code to the Act and from the Act to the Code.

The crosswalk table lists every section and subsection of the Code and points to its old location in the Act. The disposition table lists each provision of the old Act and points to its new location in the Code.

For those who are regular users of my website, the tables will be conveniently listed in the sidebar.

Monday, December 13, 2010

Budget Outlook for Oklahoma

If you are unfamiliar with the Oklahoma Policy Institute, go to its website and bookmark it, add it to you feed reader or follow it on Twitter. It is the premier source for "timely and credible information, analysis and commentary on policy issues affecting Oklahoma."

Often quoted by the Tulsa World and Daily Oklahoman for its continuing series analyzing our state's fiscal policy and planning, its latest blog post is must-reading if you want the details and not just the spin.

Its latest analysis is a call to government to develop a long-term plan for revenue and expenditures, not just dealing with "this year's shortfall." According to David Platt, executive director, "we face a short-term outlook in which overall budgets are falling or flat; in FY ’14, three budget cycles from now, we project that the budget will still be less than FY ’08." 

Every Oklahoman should become familiar with the term "tax expenditures." It is a budget term that essentially means depleting our tax base by giving tax exemptions, deductions, incentives, credits and the like that allow taxes not to be paid when they otherwise would. You didn't here about this until OKPolicy released its research early this year and reported that "[t]he total cost of tax expenditures - at least $5.6 billion in FY ’08 – equals more than 75 per-cent of total state appropriations and grew by over $1 billion, or 23 percent, in just two years."

The easy answer is to keep on doing what we've been doing, but OKPolicy gives us hope that farsighted, informed decision-making will lead to a stronger Oklahoma.

Monday, December 6, 2010

The Bunkhouse Rule

The Supreme Court of South Carolina held that a worker's injuries occurred within the course and scope of his employment where the migrant worker sustained a right ankle fracture when he fell on a wet sidewalk outside housing provided by his employer at a remote tomato farm. The housing was supplied to the worker at no charge, in part, because of the remote location of the work site. Frantz Pierre v. Seaside Farms, Inc., 689 SE 2d 615, 386 SC 534, 2010 

According to the Supreme Court, whether a worker was contractually required to live on the employers premises was not necessarily as important as whether the practical circumstances required that he or she live there. It determined that the worker in the instant case was essentially required to live on the employers premises by the nature of his employment and was making a reasonable use of the employer-provided premises at the time of his accident.  The court also indicated that the workers injury was causally related to his employment in that it was due to the conditions under which he lived, i.e., a wet sidewalk outside his building. 

The SC Supreme Court cites the rule in Larson "When an employee is required to live on the premises, either by his contract of employment or by the nature of his employment, and is continuously on call (whether or not actually on duty), the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment. However, if the employee has fixed hours outside of which he is not on call, compensation is awarded usually only if the course of the injury was a risk associated with the conditions under which claimant lived because of the requirement of remaining on the premises." 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, §24.01 (2009).

Reference: Oklahoma Workers' Compensation Law, Resident Employees.

Monday, November 8, 2010

IME Report Writing

In Oklahoma workers' compensation reports from independent medical examiners are prepared by physicians who are either court-appointed or hired by one of the parties. The rules for drafting a competent report that will not only be admissible in Court, but also be credible on the issues to be decided, are at first glance hazy and ill-defined.

Former Judge Mary Black has cut through the fog with a report that she presented at the 2009 Court Educational Conference. While she gave the program at a breakout session, most of the non-medical attendees were listening to another speaker; and attorneys and claim handlers may have missed her speech.

The paper, IME Reports - Writing for Physicians, has been posted on my website. It is the best explanation of the myriad rules and pitfalls of report writing. Worth reading by those who write reports and by those who study and interpret them.

Monday, November 1, 2010

Rebirth of Positional Risk? You Make the Call.

While making a run a truck driver violently gags on a piece of breakfast sausage and ruptures a cervical disc. Compensable? Arising out of employment? Yes for injuries occurring prior to 1986; no for injuries occurring from 1986 to July 1, 2005; for later injuries, what do you think?

Prior to the 1986 amendments to the Act, Oklahoma cases generally relied on the increased risk doctrine to determine whether a risk arose out of a worker's employment. However, the positional risk test had also been applied. In the food choking episode of Fox v. National Carrier, 1985 OK 91, 709 P.2d 1050, 1053, the Supreme Court held that but for claimant's employment as a truck driver he would not have been exposed to risk of choking on food at the restaurant. In other words, his risk of choking while engaged in the purely personal task of eating breakfast occurred because of the position he occupied while he was on duty and in the course of his employment.

In 1986, the Oklahoma Legislature amended the Act to require that "only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of employment." This language acted as a legislative repeal of the Fox ruling.

American Management Systems v. Burns, 1995 OK 58, ¶7, 903 P.2d 28, held “The 1986 amendment of 85 O.S. 1981 §3(7), which requires the source of a compensable injury to be employment-related - i.e., one that does not stem from a purely personal risk - plainly contravenes this court's pronouncement in Fox v. National Carrier. 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 hazards to which the general public is exposed.” See also, Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309.

Then along comes the 2005 reforms, and the legislature struck the “purely personal risk” language. Under the rules of statutory construction, "legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed." Lekan v. P & L Fire Protection Co., 1980 OK 56, 609 P.2d 1289; Fenwick v. Oklahoma State Penitentiary, 1990 OK 47, ¶15, 792 P.2d 60.

Considering the clear pronouncement of Burns that the phrase “purely personal risk” effectively overruled Fox v. National Carriers, and the 2005 deletion of that term, did the legislature reinstate the Fox positional risk holding? If so, food ingestion accidents, spider bites in motels, good samaritan injuries and other off-premises claims of traveling employees may now be compensable.

You make the call.

Monday, October 25, 2010

Recreational Activities Are Not Compensable Under Oklahoma Law

The 2005 amendments to the Oklahoma Workers' Compensation Act excluded recreational and social activities from the definition of injury. "Compensable injury" shall not include . . . injury incurred while engaging in, performing or as the result of engaging in or performing any recreational or social activities. 85 O.S. §3(13)(d), effective July 1, 2005.

Recreational injuries occurring prior to July 1, 2005, are generally compensable when 1) they occur on the business premises and are a regular incident of the job, or 2) participation was compulsory, or 3) there was a substantial direct benefit to the employer. If any one of these criteria is met, the claim is compensable, including travel to and from an off-premises Christmas party and taking the baby sitter home. Oklahoma Natural Gas Co. v. Williams, 1981 OK 147, 639 P.2d 1222.

The language of the new exclusion was interpreted by the Court of Civil Appeals in the case of Orcutt v. Lloyd Richards Personnel Service, 2010 OK CIV APP 77, __ P.3d __.

During his lunch break Andrew Orcutt injured his knee playing basketball in the company warehouse on a floor that had a goal and painted boundaries. The employer knew about, encouraged, and acquiesced in the games. Under the pre-2005 rules the claim would be clearly compensable. However, the trial court denied the claim based on the plain meaning of the new exclusionary terms. The COCA affirmed the trial court decision.

In an interesting sidelight (called dictum in the legal world), the COCA commented on the constitutionality of the provision. Although the issue was not properly framed for their consideration, the judges found that the legislative changes did not deprive a recreationally-injured worker of any constitutional rights. The legislature has the power to exclude classes of injuries that were compensable prior to the enactment.

The larger, unanswered question is whether employers no longer have tort immunity for injuries sustained at recreational and social functions such as Christmas parties, company sponsored sports leagues, the Orcutt basketball pick-up game, attendance at charitable events to name a few.

Wednesday, October 20, 2010

Six-Month Statute of Limitation Is Unconstitutional

Oklahoma's 2005 amendments to the Workers' Compensation Act included a shortened period of time for terminated workers to file claims. Normally an injured employee must file a claim within two years of the date of injury or the date of last payment of compensation or medical benefits. Otherwise, the claim is barred; and benefits will be denied when the "statute of limitations" defense is asserted. 

The 2005 legislative change added a special provision that stated "[p]ost-termination injury claims shall be filed within six (6) months of termination of employment." Although many court-watchers had believed that the new law was unconstitutional, it was not effectively challenged until the case of Ponca Iron & Metal v. Wilkinson, 2010 OK 75, __ P.3d __. 

Jackie Wilkinson worked for Ponca Iron & Metal until her employment terminated on December 18, 2005. She filed her claim for compensation (Form 3) more than six months later. Employer argued that the six-month limitation barred her claim, but her attorney argued that the provision was unconstitutional. The trial court denied the limitations defense, awarded benefits and held that this section "unreasonably singles out employees who have been terminated and have sustained cumulative trauma injuries. The law is in direct conflict with the general two year statute of limitations for cumulative trauma injuries and arbitrarily puts an unfair burden on these claimants."

The Court of Appeals affirmed the decision without addressing the constitutional issue, and the Supreme Court granted review to address a question of first impression. 

In a 7-2 opinion the Supreme Court held the six-month limitation violated the prohibition against special laws found in Art. 5 §46 of the Oklahoma Constitution. "[S]pecial laws are all those that rest on a false or deficient classification [and] create preference and establish inequality." Barrett v. Board of County Comm'rs of Tulsa County1939 OK 68, ¶0 (syllabus 3) and ¶7, 90 P.2d 442, 443 and 446.

Accordingly, the Court held "The classification of injured employees on the basis of continued versus terminated employment is a false and deficient classification of the larger class of injured employees because it creates preference for members in the continued employment group and results in unequal treatment for certain members of the terminated group that bear no reasonable relationship to curtailing retaliatory claims or preventing stale claims. Hence, we find the action of the Legislature to be unreasonable in their creation of this particular statutory classification. We hold the 2005 amendment to §43(A) adding the six-month statutory limitations period is unconstitutional."

Monday, October 18, 2010

NCCI Reports Continuing Decline in Claim Frequency

According to NCCI claim frequency decreased in 2009 by 4.0% from 2008 (last year the annual decline was 3.4%). This continues a twenty-year downward trend that is expected to extend into 2010. You can read the full research report on its website,

Much of the reason for the current decline is the weakness in the job market. My colleagues and I often speculate about the impact of recession and recovery on claim frequency. NCCI's research explains it this way:

". . . economic recessions typically put additional downward pressure on claim frequency. This is because, during recession, there is less ― 'job creation', which translates into a more experienced, and thus less accident-prone, workforce. Additionally, during recessions, heightened ― 'job destruction' puts upward pressure on frequency as laid off workers may look to workers compensation for wage continuation. Taken together, NCCI research concludes that, during recessions, the impact of lessened job creation outweighs the impact of heightened job destruction, thus causing frequency to drop more than it would otherwise. During economic recoveries, as job creation picks up and job destruction abates, the proportion of inexperienced workers increases, thus putting upward pressure on frequency. However, unless the economic recovery is vigorous, this upward pressure is weaker than the general downward trend in frequency."