Oklahoma Legislature Enacts – Governor Signs Changes to Workers’ Compensation Law

SmartCasualtyClaims carefully follows legislative and regulatory developments that may affect our clients. This bulletin reviews recent changes to the Oklahoma Workers’ Compensation statutes that we believe will have the greatest impact on our clients’ workers’ compensation programs.

Governor Stitt signed what was termed a “cleanup” bill for Title 85A, Workers’ Compensation on May 28, 2019 at 2:51 p.m.  In addition to items, which for practical purposes needed to be clarified in Title 85A, lawsuits and Supreme Court orders have also made some revisions necessary.

This review is not intended to be all inclusive of the changes made by the bill; rather, this bulletin reflects changes in the bill that are most likely to impact clients.

An emergency clause was attached to the bill.  Under Oklahoma law this means some of the changes went into effect the minute Governor Stitt signed the bill. Some of the changes will not go into effect until November 1, 2019.

Rate Changes
Several important rate changes were implemented.

  • The temporary total disability (TTD) rate from January 1, 2019 to May 28, 2019 at 2:50 pm was $607.40. Starting on May 28, 2019 at 2:51 p.m., the rate is increased to a maximum of $861.77.
  • Permanent partial disability (PPD) rate is increased from $323.00 to $350.00 on May 28, 2019 at 2:51 p.m. and will increase to $360.00 on July 1, 2019.
  • The whole-body value increases from 350 weeks for PPD to 360 weeks.

“Cleanup” required by Supreme Court decisions
Some of the “cleanup” work was to modify the wording of the statute to reflect several Supreme Court decisions or to clarify areas of the statute.

  • The TTD maximum number of weeks has been increased from 104 weeks to 156 weeks with an available extension of 52 weeks. The possibility of temporary permanent total disability no longer exists because the TTD rate and the PTD maximum rates are now the same.
  • The definition of “Course and Scope” was modified for the premises cases to include coming and going if the employer owns or maintains exclusive control over the area. Injury on a work break is not compensable unless it is authorized by the supervisor and is in the facility or in an area owned by or exclusively controlled by the employer.
  • The revision to Section 2(14) regarding cumulative trauma removes the 180-day requirement that the Supreme Court said was unconstitutional. However, the 90-day rule from Title 85 was not adopted either. 
  • The statute was revised to specifically list the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment(AMA Guides) instead of the “most current” edition. Shoulders and hips were not included in the specific list of scheduled members which are excluded from the use of the Sixth Edition.
  • Jurisdiction has been clarified as “place of hire” or “place of injury”.
  • The bill provides a resolution to a claimant filing a claim for the same injury in multiple jurisdictions and prevents them from drawing duplicate benefits.
  • Statutory language has been modified to require electronic reporting and eliminates the need to send the claimant a notice when benefits are started or denied.
  • The Commission no longer has jurisdiction over a claimant’s action against the employer for retaliation for filing a claim. This action has been returned to District Court and no longer has the cap of $100,000.
  • TTD can be terminated if a claimant:
  • misses three consecutive medical appointments,
  • fails to comply with medical orders of the treating physician; or
  • otherwise abandons medical care.
  • Permanent termination of TTD is allowed if treatment is abandoned for 60 days or TTD has been terminated twice for missing appointments. TTD can be permanently terminated for failure to attend a Commission-directed examination or treatment.
  • Temporary Partial Disability (TPD) is clarified that the combination of the actual earnings plus the TPD benefit may not exceed the claimant’s TTD rate.
  • Soft tissue limitations on TTD have been clarified as eight weeks for soft tissue injuries with an additional eight for injections. Injections shall not include facet injections or intravenous injections.
  • The time a claimant has to file an Employees First Notice of Injury has been clarified to be one year after the injury or six months from the last payment of benefits. Once an Employees First Notice of Injury has been filed, the claimant must request a hearing, receive treatment, or seek benefits within six months. Previously the statute required a hearing to be requested to determine if the claim may be dismissed. The bill changes the statute so that now, upon motion by the employer, the claim shall be dismissed.
  • The Statute of Limitations for reopening after an order has been clarified as six months from the date of the award.

General changes
The law also includes some revisions that were not driven by court cases.

  • A Revivor Action by the spouse, minor child, or children with a disability, has been added to the statute for permanent partial benefits.
  • Evidence of physical and mental stress may now be allowed to prove compensability of cardiac and lung claims.
  • Vocational rehabilitation must be requested within 60 days of final determination of PPD.
  • For the purposes of workers’ compensation benefits, whether a common law marriage exists, will be determined by the Workers’ Compensation Commission not any other Court in the state.
  • The Fee Schedule for Medical Services will be reviewed by an independent party every two years. No mandatory increase was included.

Multiple Injury Trust Fund (MITF)
Because of the financial shortfall for the MITF, the MITF assessment rate will be increased. 

  • The maximum assessment payable by self-insured employers and carriers’ will be increase from six percent to seven percent.
  • The level of disability at which a claimant may access MITF benefits has been increased to 50% PPD as a baseline.
  • Benefits have been decreased from fifteen years to eight years.
  • Also, a three percent tax assessment of PPD will be paid by the claimant from any award or settlement to the MITF.

These changes should result in significant savings to assist in the MITF’s solvency.

Additional Observations

The maximum allowable benefit rate for TTD increases 41.9%. Note that not every claimant will qualify for the maximum rate; each client’s potential increase will depend on the number of claims which are affected by the increase.

The PPD rate increase, although more modest, is an eight percent increase in the maximum benefit.  The continued use of the 6th Edition of the AMA Guides will continue to keep the percentage of disability low on the body ratings. Roughly 11% of the claims result in an award of PPD, so this rate increase potentially has an impact on all of those claims.  So – clients whose staff has an average weekly wage of over $461.42 (or $11.53 per hour), there will be an increase.  The increase from 350 weeks to 360 weeks will result in a slight increase in the cost of a whole-body award.

We anticipate changes to be made to the Medical Fee Schedule because there has not been a Medical Fee Schedule adjustment since 2012.  More will be known about the impact of these changes after the independent review of the Medical Fee Schedule is conducted and completed.  

Summary

This legislation represents extensive changes to the Oklahoma Workers’ Compensation law and will require analysis by NCCI, the national ratemaking authority used by Oklahoma. We expect later this year the premium rates paid by employers will be revised to reflect the increase in benefits along with some of the other changes.

If you have any questions regarding these changes please contact your adjuster or Jene Huckabay, Oklahoma Claims Office Manager at jene.huckabay@smartcasualtyclaims.com, 405-848-1975, Option 4.

SmartCasualtyClaims – July 12, 2019