Thursday, May 14, 2009

Legislative News

Last week the legislature delivered three bills to Governor Henry dealing with substantive workers' compensation issues.

Senate Bill 901 requires the state’s average weekly wage, used to establish maximum benefits under the Workers’ Compensation Act, to be determined annually instead of every three years.  The measure becomes effective November 1, 2009, and it amends 85 O.S., §22(6).

This bill is a reaction to the 18% jump in compensation rates from 2005 to 2008. Injured workers' will be paid at a rate that more closely reflects the state average weekly wage. On the employer side the unintended consequence will be higher premiums since rates will rise faster. In the last forty years the state average weekly wage has only declined slightly in two years.

Senate Bill 1234 modifies the effect of execution of an affidavit of exempt status to include a rebuttable presumption that an individual or company possessing the affidavit is in compliance and therefore not responsible for workers’ compensation claims made by the executor of the affidavit.  Requires the affidavit to be notarized.  The measure becomes effective November 1, 2009; and it amends 36 O.S., §924.4.

I'm not sure why we need this law, but now we've got it. Employers and insurance carriers, please remember that the presumption is rebuttable. That means the Court will still apply the Page v. Hardy factors when determining whether the injured worker is an employee.

HB 1600 on soft tissue injuries was vetoed by Governor Henry. The good part of this bill tried to define "surgery" as a procedure that would not include epidural steroid injections. An unpublished case from the COCA ruled that ESI is surgical and therefore the temporary compensation cap did not apply. As a practical matter most of the judges do not follow this ruling.

The rest of the bill was puzzling at best. We would be better served if legislative authors clearly stated their intentions. The bill appeared to cap TTD at 24 weeks even for surgical cases, but you could persuasively argue that it does not extend the cap. Use of ambiguous language leads to hair splitting that frustrates the stakeholders and raises costs as a result of increased litigation and delay. More on this later.

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