Monday, June 2, 2008

BB&B v. Bonat: Return of the 8-Week Limitation for Soft Tissue

The soft tissue provision inserted into the Workers' Compensation Act in 2005 contains a patent ambiguity. Language at the beginning of 85 O.S. §22(3)(d), Soft Tissue, limits temporary total disability compensation ("TTD") for nonsurgical soft tissue injuries to 8 weeks plus a 16 week extension if surgery is recommended. The ambiguity arises when a subsequent section states "[i]n all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section . . .." [Referring to 85 O.S. §22(2) which allows up to 300 weeks of TTD].

Three divisions of the COCA construed the ambiguity by overriding the 8 + 16 limitation and allowing TTD in excess of 24 weeks for nonsurgical soft tissue cases.

In Bed, Bath & Beyond v. Bonat, a 9-0 decision written by Justice Tom Colbert, the Oklahoma Supreme Court addressed the issue and stated "this Court provides this analysis as binding authority for resolution of the ambiguity."

Justice Colbert succinctly stated the Court's conclusions in ¶12:
1. The legislature intended to limit TTD for certain soft tissue injuries;
2. TTD for non-surgical soft tissue injuries is limited to 8 weeks;
3. If surgery is recommended the trial court may extend TTD for up to 16 additional weeks while waiting to perform the surgery; and
4. Since there is no reference to TTD and medical benefits when a soft tissue surgery is performed, §22(2)(c) applies allowing up to 300 weeks of TTD.

In an apparent attempt to limit claimant's TTD to 24 weeks, the employer withheld authorization for surgery until the outcome of the appeals. The Court held "[t]he presence of a soft tissue injury is a medical question to be determined by the Workers' Compensation Court based on competent medical evidence, not on an employer's decision to authorize or refuse to authorize recommended surgery. The claim in this matter is not subject to the soft tissue injury time limitations set forth in section 22(3)(d)."

This holding fits squarely with the doctrine of "extra-statutory forfeiture of benefits" pronounced by the Court in BE&K Construction v. Abbott. Employers will not be allowed to avoid compensating their injured workers through unilateral actions outside the Workers' Compensation Act.


  1. So is it back to 8 weeks for soft tissue non-surgery?
    Will the WCC accept that this case gives clear direction that the Supreme Court believes that there is a place for an 8/16 week TTD limitation?

  2. BB&B v. B definitely takes us back to the 8-week limitation. However, old issues (pre-Gee cases) are resurrected and will take time to resolve. For example, what is a soft tissue injury; can a claimant stack multiple injured body parts; is there an exception for unreasonable delay of benefits; what is surgical (Boyce Manor v. Kaylor)? These issues will be discussed in later posts. Most have not been addressed on appeal.

  3. What about Range of Motion?

  4. It appears you are asking whether loss of range of motion is sufficient evidence to support a finding of permanent anatomical abnormality in a soft tissue case and thus justify an award of permanent disability.

    If so, this is the major unaddressed and unanswered question surrounding the "soft tissue" debate. There is one unpublished opinion that is not very helpful which can be found at my website on Oklahoma Workers' Compensation Law, along with a full discussion of this and other issues.