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PROBLEMATIC PROVISIONS OF TITLE 85A

ADMINISTRATIVE WORKERS’ COMPENSATION ACT

The current administrators, staff, and judges of the Oklahoma Workers’ Compensation Commission and the Court of Existing Claims are operating in harmony and with great professionalism and efficiency in carrying out the provisions of the AWCA. But there is still uncertainty about the ultimate Supreme Court interpretation of many sections of the law that became effective February 1, 2014. This is a status report on efforts in the courts and the legislature to clarify the law.

PROVISION

1. § 2(9)(b)(4)…requires clear and convincing evidence to overcome presumption

2. § 2(13)(c)…excludes parking lot injuries from scope of employment

3. § 2(13)(d)….authorized break injury covered only

“inside employer’s facility”

4. § 2(14)…requires 180 days continuous employment for cumulative trauma claim

5. § 2(16)…disability awarded only if can’t return to same wage earning capacity

PROBLEM

Impairs discretion of judge to weigh all evidence in same manner

Denies adequate remedy,

Unconstitutional special law, Denial of due process

Denies adequate remedy,

Unconstitutional special law, Denial of due process

Denies adequate remedy,

Unconstitutional special law, Denial of due process

Denies adequate remedy,

Unconstitutional special law, Denial of due process

STATUS

Held unconstitutional, OK State Chiropractic v. Fallin, 2011 OK 102

Supreme Court in Bober v. OSU, 2016 OK 78, said ingress and egress injuries are compensable

Currently on appeal to Supreme Court

Found unconstitutional as denial of due process, Torres v. Seaboard Foods, 2016 OK 20

Ruled invalid by Maxwell v. Sprint, 2016 OK 41

6. § 2(19)…opt out employers not defined as “employer” under AWCA

7. § 2(31)(b)…exclusive use of latest edition of AMA Guides for PPD

8. § 2(33)…exclusive use of latest edition of AMA Guides for PPD

9. § 2(34) PPD only if worker does not return to same or similar job

10. § 2(45)(D)…PTD awardee must file annual affidavit or benefits can be terminated without a hearing

11. § 2(45)…spouse collects death benefits only if marriage is recognized in Oklahoma

12. § 5(A)…oil and gas operators not liable in third party tort

13. § 5(C)…employer retains exclusive remedy even if injury not covered by comp statute

14. § 7…puts retaliatory discharge jurisdiction Unconstitutional special law

Denial of due process, Unconstitutional predetermination of adjudication

Denies adequate remedy,

Unconstitutional special law, Denial of due process

Denial of due process

Denial of equal protection

Unconstitutional special law, Denial of adequate remedy

Denial of adequate remedy and due process

Denial of adequate remedy and due process Opt out scheme found inoperable, Commission order in Vasquez v. Dillard’s

Currently on appeal to Supreme Court

Ruled invalid by Maxwell v. Sprint, 2016 OK 41

No ALJ decisions based upon this section

District court in Grady County has found section to be unconstitutional as a special law

Case pending in Oklahoma County district court;

Currently on appeal to Supreme Court

with Commission, denies jury trial in district court

15. § 13 (B)…limits benefits in mental injury to 26 weeks

16. § 13(B)(2)(b)…death from mental injury must occur within one year

17. § 14…physical and mental stress not to be considered in proving heart attack or stroke

18. § 19(A)…Commission has jurisdiction of all claims, old and new

19. § 19(C)…Commission makes rules for old and new law claims

20. § 20(A)(1)…

Commission to appoint ALJ’s for all claims

21. §20(B)(7)…

Commission makes all rules

22. § 22…Commission makes all rules

23. § 27(B)(3)…ALJ’s can hear old law cases

Denial of adequate remedy and due process

Violation of separation of powers

Challenge pending before

Commission

No ALJ decisions based upon this section

Case pending in Oklahoma County district court and before Commission

Held inoperable, Carlock v. Workers’ Compensation Commission, 2014 OK 29

Held unconstitutional or inoperable, Carlock

24. § 43 (A) & (B)…

Sets arbitrary subrogation split of third party proceeds and allows death

subrogation

25. § 45(A)(1)…104-

week TTD limitation

26. § 45(B)(2)…52-

Week TPD limitation

27. § 45(C)(1)…exclusive use of AMA Guides

28. § 45(C)(2)…no PPD rating from chiropractor

29. § 45(C)(3)…no deviation from AMA Guides

30. § 45(C)(5)…PPD lost if worker goes back to work

31. § 45(D)(2)…PTD recipient must file annual affidavit, or benefits can stop without a hearing

32. § 53(C)…Failure to see Commission appointed doctor within one month terminates all benefits Denial of due process and lack of adequate remedy

Denial of due process and lack of adequate remedy

Denial of due process, Predetermination of adjudication

Unconstitutional special law

Denial of due process, Predetermination of adjudication

Denial of due process and lack of adequate remedy

Denial of due process

Denial of due process Rogers v. Sims, Grady

County. Subro in death

case unconstitutional

Challenge pending before

Commission

No ALJ decisions based upon this section

Challenge pending before

Commission in several

test cases

Held unconstitutional, OK State Chiropractic v. Fallin, 2011 OK 102

Ruled invalid by Maxwell v. Sprint, 2016 OK 41

in re scheduled members

Held unconstitutional,

Maxwell v. Sprint

No ALJ decisions on this provision

33. § 57…2 unexcused appointments and all benefits are terminated

34. § 61…severe limitations on compensability of hernia

35. § 62(B)…carpal tunnel surgery still considered soft tissue, with 8-week TTD limitation

36. § 65(D)(2)…

infectious disease covered only if contracted in facility that treats the disease

37. § 65(F)(1)(c)…death must occur with 7 years

38. § 65(F)(1)(b)…death from asbestosis must occur

within 3 years

39. §66(B)…asbestosis exposure covered only if exposed for 5 years, 2 in state

40. § 66(E)…Commission can force termination of a worker if he or she tests positive for asbestosis

Arbitrary limit, Denial of due process

Denial of due process

Currently on appeal to Supreme Court

Challenge pending before

Commission

No ALJ decisions on this provision

2014 legislature deleted this arbitrary limitation

No ALJ decisions on this provision

No Commission action taken

41. § 67(B)…awards or denials can be revisited even after appeal time has run

42. § 82…No attorney fee on uncontroverted claim without a contested hearing

43. § 94…no medical or PPD benefits for incarcerated worker

44. § 200...Opt Out

45. § 201…Opt Out

46. § 202…Opt Out

47. § 203…Opt Out

48. § 204…Opt Out

49. § 205…Opt Out

50. § 206…Opt Out

51. § 207…Opt Out

52. § 208…Opt Out

53. § 209…Opt Out Denial of due process

Violation of due process and separation of powers

Arbitrary limitation, Denial of due process

Unconstitutional special law

Uncons. Special law

No Commission action taken

No Commission action taken after challenge resolved

Challenge pending before

Commission

Opt out scheme found “inoperable,” Commission order, Vasquez v. Dillard’s

Inoperable, Vasquez

Unconstitutional, Vasquez

Inoperable, Vasquez

Unconstitutional, Vasquez

54. § 210…Opt Out

55. § 211…Opt Out

56. § 212…Opt Out

57. § 213…Opt Out

58. § 400(A)…vacancy of judge on CEC filled by

Commission

59. § 400(I)…Appeals from CEC heard by Commission

60. § 400(J)…Appeals from CEC heard by Commission en Banc

61. § 400(K) Remedies in old law claims governed by Commission

62. § 400(L)…ALJ’s of Commission to enforce final orders of old Workers’ Comp Court

63. § 400(M) ALJ’s of Commission have jurisdiction of Workers’ Comp Court orders

64. § 45(D)(8)…allows Employer to deduct voc rehab tuition from TTD and PPD and medical

65. § 116…Does not provide for revivor before PPD award.

Uncons. Special law

Violation of separation of powers

Taking of property without

Due Process

Taking of property without

Due Process

Inoperable, Vasquez

Held unconstitutional or