Monday, February 22, 2010

To Abey, or Not To Abey.

A long, long time ago the word "abeyance" crept into our workers' compensation lexicon. According to The Free Dictionary by Farlex, it means temporarily suspended, on ice, in cold storage, hanging fire. The term does not appear in the Oklahoma statutes.

It was used before 2006 in Court Rule 19H (now renumbered Rule 39A) to describe the procedure for enforcement of 85 O.S. §25 requiring an injured employee to submit to a medical examination when ordered by the Court. This mandate and its resulting penalty reduce the risk of obstructive behavior by the employee, but it must be strictly construed.

Today abeyance is used in situations that exceed its original intent. It is typically raised by motion to the Court when the claimant misses a physician's appointment, fails to appear for deposition, cancels or misses physical therapy, refuses surgery due to pregnancy or when conflicting treatment for an unrelated disease or injury precludes treatment for the work injury.

Let's look at the statute and the rule. 85 O.S. §25 which provides: "An employee claiming or entitled to compensation under the Workers' Compensation Act, shall, if ordered by the Court, submit himself for medical examination. .  .  . If an employee refuses to submit himself to examination, his right to prosecute any proceeding under the Workers' Compensation Act shall be suspended, and no compensation shall be payable for the period of such refusal."

Under Court Rule 39A compensation may be suspended upon request indicating that respondent has given the claimant reasonable notice to appear for an examination and has delivered the statutory travel expenses. The burden then shifts to the claimant to show cause that there is a reasonable, credible excuse for the failure to appear.

The statute and rule only apply to medical examinations. The suspension of compensation issue based on these provisions therefore only arises in cases involving questions such as medical causation, need for treatment, temporary compensation and whether claimant has attained maximum medical improvement.

The forfeiture penalties of §25 and Rule 39A are not automatic. Due process of law requires that after compliance by the employer with Rule 39A claimant should be afforded a hearing to show that his failure to appear should be excused. McMinn v. State Industrial Court, 1961 OK 280, 366 P.2d 954. An injured worker may not be denied compensation because of refusal to accept medical treatment tendered by his employer, unless it be shown that such refusal was arbitrary and unreasonable. Macklanburg-Duncan Company v. Wimmer, 1955 OK 24, 280 P.2d 1001.

Neither the statute nor the rule empowers the Court to suspend compensation for failure to appear at deposition or for regularly scheduled or routine medical treatment. Willful failure to appear for deposition is subject to discovery penalties such as assessment of cost and attorney fees, dismissal of the claim or other sanctions. When the claimant fails or refuses to accept the treatment recommendations of a treating physician, case law sets the standard for terminating benefits.

Employer's duty to provide medical treatment creates the implied obligation of the employee to accept reasonable remedial measures that will cure or improve his condition. Cases discussing this obligation are found on the Oklahoma Law website at here and here. The modern rule states that a claimant does not forfeit compensation benefits when a medical condition, not caused by claimant, requires that the treatment being provided be postponed.

Conclusion: In those rare instances when an employee refuses a medical examination, the employee can lose temporary compensation until he complies with with the Rule 39A. The same claimant who has reached MMI could also lose the accrual of permanent benefits by unexcused failure to appear for a rating examination. However, not every failure will trigger the penalty of §25.


  1. That is great information as I see more and more Respondents filing to hold a claim in abeyance for numerous reasons other than missing a medical appointment. And it is rare indeed that we receive a mileage check before the scheduled appointment. The law and reasoning contained in this article will be useful when a motion to hold in abeyance is filed for reasons other than missing a court ordered medical appointment.

  2. employer..bought a used light duty truck(92 S-10).That once was in a flood, and caught on fire. And needing front end work. Steering wheel had alot of play. Front shocks gone, also needed aligment, and had over 250,000 miles. To replace a full size work truck.(f150). And i mean worked, and loaded like a full size truck. 1,500 lbs of wire, and hardware, tools, ladder , and other equipment in the bed of a s-10. The hood angled up with all this wieght. Small tires about to pop.
    And this s-10 went from okc to buffalo, okla. From okc to altus. okc to enid. okc to mcalester.
    After being surprised that the s-10 survived the first month. The second month the rear suspension was gone. Metal squeaked from front to the back. Replace 2 u-joinst. And a muffler, also the little brakes made on a s-10 wasn't engineered to stop 2,000 lbs. and the steering had become worse.
    And when i fellow worker had to ride in the s-10 he referred it as a death trap. And I told my supervisor we where putting to much of a load on a light duty older truck.Thats made for honey dos. Not construction type loads.
    The next week i had to go back to macalster, for a week to installing a fire evac. system.
    I was able to get it in a mechanic shop. For front end work. Replaced the tire rods, wheel bearings, brakes and new front tires.
    On my way to macalester. Near shawnee I had to stop and call the shop, and told my supervisor the truck was shaking when you get near 65 mph on I-40. And if I could swap trucks with another worker, and I was told to limp on to macalester. The other worker had left for clinton.
    SO I got to macalster, and worked the week, and on friday evening on my way back. I was involed in a roll over, and a tool, or some hardware actual hit the button on the seatbelt, while it was rolling, and flipping. I was thrown thru the windshield.
    Which I dont even remember getting on the highway. I have really no idea what happen. I woke up in life flight being transported to baptist hosptial. Needless to say I have alot of health issues. It took me half a year to walk again, and my back, and body to heal a little. My head injury is another chapter.
    But I read don't remember where that a employer is not held negligent for a worker injury. In this case the employer should be.
    I worked for this company for 12 years before
    the wreck. And to save gas, I lost more then 20 cents extra per gallon gas. That the reason
    for getting the s-10 to save gas, and not wasting time going to gas up a V8. My boss knew it was overloaded. And also knew the s-10 wouldn't last longer, and wasn't safe to drive close to highway speed. But had to get his money worth out of it...

  3. But the question is what happens to the SOL when a claim is held in abeyance? If a claim is held in abeyance for more than 3 years, can the claim be dismissed for want of prosecution?