Oklahoma Legislature H1224

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The House of the Oklahoma Legislature has introduced H1224 that seeks to revise or reform the workers\' compensation system.

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Oklahoma Legislature H1224

  1. 1. 1 STATE OF OKLAHOMA2 1st Session of the 53rd Legislature (2011)3 HOUSE BILL 1224 By: McCullough456 AS INTRODUCED7 An Act relating to workers’ compensation; amending 85 O.S. 2001, Section 1.1, as amended by Section 7,8 Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 1.1), which relates to9 Workers’ Compensation Act applicability limitations; modifying agency designation; amending 85 O.S. 2001,10 Section 1.2, as amended by Section 1, Chapter 453, O.S.L. 2010 (85 O.S. Supp. 2010, Section 1.2), which11 relates to the creation and content of the Workers’ Compensation Court; creating Workers’ Compensation12 Court of Existing Claims; providing for the appointment of four judges; vacating all existing13 court positions; providing for the selection of new judges; modifying agency designation; requiring14 Senate confirmation of new judges; providing for appointments to the court; providing for selection of15 judges in certain circumstances; requiring that judges have five years of experience in workers’16 compensation matters; requiring Senate confirmation of any reappointed judge; specifying which claims the17 Workers Compensation Court of Existing Claims shall adjudicate; amending 85 O.S. 2001, Section 1.2A,18 which relates to compensation of certain judges; modifying agency designation; amending 85 O.S. 2001,19 Section 1.3, as amended by Section 8, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp.20 2010, Section 1.3), which relates to the selection and duties of the administrator of the Workers’21 Compensation Court; modifying agency designations; creating the Workers’ Compensation Commission;22 providing for appointment of three Commissioners; specifying qualifications for Commission; specifying23 Commission shall consist of at least one attorney and one physician; providing for compensation of24 Commissioners; establishing the position of Req. No. 5555 Page 1
  2. 2. 1 administrative law judge within the workers’ compensation system; specifying jurisdictional2 regions for administrative law judges; providing for venue of workers compensation claims; requiring3 administrative law judges be confirmed by the Senate; allowing for hearings by videoconference in certain4 circumstances; authorizing Governor to remove Commissioners under certain circumstances;5 establishing procedure for removal of Commissioners; requiring Senate confirmation of removals; requiring6 a representative of the Attorney General to attend such removals and advise or assist the Senate;7 providing for the subpoena of witnesses in removal proceedings; requiring Governor to provide certain8 information to the Secretary of State upon the removal of a Commissioner; specifying that9 Commissioners shall be officers of the state; requiring Commission members to take an oath of10 office; authorizing certain business be conducted with a quorum of Commissioners; authorizing the use11 of an office by the Commissioners; requiring Commissioners to conduct hearings at certain career12 or technology education centers; providing for the creation and use of an official seal; authorizing13 Commission to take certain administrative actions; requiring Commission to give notice of certain14 actions; specifying content of notice; providing that notice be sent to certain interested persons;15 requiring Commission compliance with the Administrative Procedures Act; providing for the16 payment of certain expenditures; authorizing the appointment of certain staff; providing for the17 compensation of certain rate experts; providing for salaries of certain employees; specifying18 administrative law judge duties; limiting administrative law judge authority to issues of19 compensability; providing for traveling expenses by Commission and Commission’s employees; specifying20 Commission’s power and duties; authorizing Commission to hear and determine compensation claims;21 authorizing Commission to hear appeals from certain orders; authorizing Commission to hire a Chief22 Medical Officer; authorizing Commission to approve certain medical and legal claims; authorizing23 Commission to excuse certain failures to provide notice; authorizing Commission to determine awards;24 authorizing Commission to make findings of fact; Req. No. 5555 Page 2
  3. 3. 1 authorizing Commission to make rulings of law; authorizing Commission to enter orders in appealed2 cases; authorizing Commission to specify terms of payment and order certain reimbursements; authorizing3 Commission to assess penalties; authorizing Commission to prescribe certain rules and4 regulations; authorizing Commission to issue subpoenas, administer oaths and take testimony;5 authorizing Commission to transfer certain excess income to certain charitable organizations;6 authorizing Commission to establish and impose certain fees; providing for the deposit of certain7 fees; requiring Commission to provide an annual report to the Legislature; amending 85 O.S. 2001,8 Section 3, as last amended by Section 1, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section 3), which9 relates to definitions; modifying definitions; amending 85 O.S. 2001, Section 3.1, which relates to10 death benefit definitions; modifying definitions; providing for compensation of certain alien11 nonresident dependents; limiting certain benefits to nonresident dependents; amending 85 O.S. 2001,12 Section 3.4, which relates to procedure for commencing workers’ compensation claims; requiring13 certain employees to report injuries to employer in writing within a certain period; providing that14 failure to timely report injuries shall relieve employer of duty to compensate employee; requiring15 employers to develop certain reporting procedures; providing that certain signed statements exculpating16 employer shall bar employee from compensation; prohibiting employee remedies in certain17 circumstances; authorizing Commission to develop preliminary conferences procedures for workers’18 compensation claims; providing that claimants be advised of their rights; specifying that claimants19 may be advised of rights at certain Career Tech centers; authorizing Commission to facilitate20 settlement of claims; modifying agency designation; specifying that certain hearings shall be subject to21 certain rules of evidence; specifying burden of proof; providing that claim hearings shall be open to22 the public; providing that all hearings shall be documented by certain means; requiring that all23 evidence be presented at initial hearing; requiring that certain written reports be provided to opposing24 parties; requiring notification of opposing parties Req. No. 5555 Page 3
  4. 4. 1 of intent to cross-examine certain physicians; allowing hearing officer or Commissioner discretion2 in admitting certain evidence; specifying the use of certain reports and depositions by administrative law3 judges; amending 85 O.S. 2001, Section 3.6, as amended by Section 1, Chapter 403, O.S.L. 2010 (854 O.S. Supp. 2010, Section 3.6), which relates to appellate procedures for workers’ compensation5 claims; modifying agency designation; providing that Commission shall hear certain appeals; authorizing6 Commission to reverse or modify certain decisions; providing that certain decisions of the Commission7 shall be final; restricting Supreme Court authority to reverse Workers Compensation Commission decisions8 to certain issues or grounds; authorizing Supreme Court to require a bond in certain cases; amending 859 O.S. 2001, Section 3.7, which relates to powers and duties of the Workers’ Compensation Administrator;10 authorizing Administrator to accept and record certain settlements; modifying agency designations;11 deleting obsolete language; removing authority of Administrator to adopt certain rules and impose12 certain penalties; amending 85 O.S. 2001, Sections 3.8, 3.10, as last amended by Section 3, Chapter 403,13 O.S.L. 2010, and 4 (85 O.S. Supp. 2010, Section 3.10), which relate to workers’ compensation general14 provisions; modifying agency designations; amending 85 O.S. 2001, Section 11, as last amended by Section15 2, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section 11), which relates to employer payment of16 certain compensation; deleting reference to certain injuries; updating statutory reference; amending 8517 O.S. 2001, Section 12, as last amended by Section 3, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section18 12), which relates to certain employer liability; specifying applicability to certain employers;19 deleting reference to certain rights arising under the Oklahoma Constitution; providing penalty for20 failure to secure compensation; authorizing Commission to serve certain orders for certain21 violations; providing employers opportunity to contest certain Commission orders; allowing for22 hearings to contest certain orders; specifying burden of employer to overturn certain orders; providing for23 hearings in certain disputes between employers and insurers; requiring Commission to notify insurer of24 certain hearings; requiring insurer to respond to Req. No. 5555 Page 4
  5. 5. 1 certain notice of hearing within a certain period; authorizing Commission to assess certain fines for2 certain violations; providing Commission authority to petition district court in certain circumstances;3 authorizing Commission to seek certain injunction; requiring employers to post certain notices;4 specifying certain notice requirements; specifying that employers shall not be liable for certain5 injuries; authorizing Commission to establish certain rules and regulations concerning medical service6 fees; allowing Commission to establish maximum allowable fees; amending 85 O.S. 2001, Section 14, as7 last amended by Section 4, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section 14), which relates to8 the provision of medical services after an injury; specifying that injured employees may seek hearing at9 the Commission or the Court of Existing Claims depending upon the date of injury; modifying agency10 designations; providing for the limitation of certain medical treatments; providing for the ongoing service11 and replacement of certain medical devices; amending 85 O.S. 2001, Section 14.2, as amended by Section 16,12 Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 14.2), which relates to the13 selection of treating physicians under certified workplace plans; modifying agency designations;14 amending 85 O.S. 2001, Section 14.3, as amended by Section 17, Chapter 1, 1st Extraordinary Session,15 O.S.L. 2005 (85 O.S. Supp. 2010, Section 14.3), which relates to certified workplace medical plans;16 modifying agency designation; extending period an insured may contract with an independent insurer in17 certain circumstances; requiring employees to obtain written confirmation that dispute resolution has18 failed and been exhausted; specifying that certain medical evaluations shall not be admissible if19 certain conditions have not been met; authorizing Commission to alter the course of certain medical20 treatments under certain conditions; requiring all state agencies to adopt and implement certain21 certified workplace plan; amending 85 O.S. 2001, Section 15, which relates to employer requirement of22 providing prosthetic devices in certain circumstances; modifying agency designation; amending23 85 O.S. 2001, Section 16, as amended by Section 18, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (8524 O.S. Supp. 2010, Section 16), which relates to Req. No. 5555 Page 5
  6. 6. 1 vocational rehabilitation and job placement services; requiring Commission to hire a Vocational2 Rehabilitation Director; establishing qualifications of Vocational Rehabilitation Director; specifying3 duties of Vocational Rehabilitation Director; authorizing the request of vocational rehabilitation4 services by parties to a compensation claim under certain circumstances; authorizing Vocational5 Rehabilitation Director to issue certain administrative orders; providing that such6 administrative orders are appealable to Commission; authorizing Director to assign certain vocational7 rehabilitation counselors in certain circumstances; providing certain services to be paid by employer;8 authorizing concurrent medical treatment and vocational rehabilitation services; modifying agency9 designation; specifying that vocational rehabilitation services shall be payable only to10 rehabilitating provider; extending time frame for certain vocational rehabilitation services;11 prohibiting the payment for vocational rehabilitation to be a separate item in a settlement or included in12 a calculation of legal fees; amending 85 O.S. 2001, Section 17, as last amended by Section 19, Chapter 1,13 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 17), which relates to the determination14 of disability; modifying agency designations; providing that determination of disability shall be15 the responsibility of the Chief Medical Officer; requiring all claims for disability be supported by16 certain testimony and include certain evaluations; requiring evaluation be sent to parties within seven17 days; requiring medical opinions be stated within a reasonable degree of medical certainty; defining18 terms; stating purpose of program; specifying scope of program; establishing qualifications of physicians19 seeking appointment to Medical Impairment Rating Registry; specifying application procedure for20 physicians seeking appointment to Medical Impairment Rating Registry; specifying appointment and retention21 requirements of certain physicians; providing appeal procedure for physicians denied appointment on22 Registry; specifying circumstances wherein a Medical Impairment Rating Registry physician shall be23 appointed; providing for the selection of a Registry physician; providing procedure for certain24 disagreements between the parties; providing for the Req. No. 5555 Page 6
  7. 7. 1 selection of a Registry physician; establishing that the impairment rating determined by the Medical2 Impairment Rating Registry physician shall be presumed accurate; authorizing the Program3 Coordinator to select a Registry physician under certain circumstances; requiring Program Coordinator4 to contact a selected Registry physician within three days after selection; requiring parties to submit5 copies of all pertinent medical records to the Registry physician; authorizing Program Coordinator6 certain discretion in accepting certain untimely submitted records; specifying how medical records7 shall be organized; prohibiting the submission of certain types of evidence to the Registry physician;8 requiring that claimants complete all forms; providing for assistance to claimants in completing9 forms; authorizing the use of a translator in certain circumstances; providing for reimbursement of10 claimant travel under certain circumstances; providing for the payment of a Registry physician;11 specifying fee amounts based upon the length of time taken to complete the report; specifying what the12 Registry physician fee includes; providing for late fees and penalties under certain circumstances;13 providing procedure for cancellation of evaluation appointments; allowing evaluations of multiple14 impairments by different Registry physicians in certain circumstances; prohibiting certain physicians15 from rendering certain opinions; requiring disclosure by physicians in certain potential conflict of16 interest circumstances; providing penalties for failure to comply with conflict of interest17 requirements; prohibiting certain physicians from communicating with parties except under certain18 circumstances; requiring the requesting party to compensate certain physicians if physician is a19 witness at any proceeding; establishing requirements for physicians conducting certain evaluations;20 specifying certain requirements physicians must follow prior to certain evaluations; specifying21 certain requirements physicians must follow upon the completion of certain evaluations; specifying that22 completed reports shall be sent to the Program Coordinator; specifying that evaluations do not23 create a doctor-patient relationship between claimants and physicians; providing that certain24 physicians shall only evaluate impairment and not Req. No. 5555 Page 7
  8. 8. 1 offer medical advice or a diagnosis; prohibiting certain physicians from recommending treatment in2 evaluation assessments; establishing reporting requirements of the Medical Impairment Rating report;3 requiring that Medical Impairment Rating physicians review attending physician evaluations; providing4 reporting procedure if the Medical Impairment Rating physician agrees with evaluation of attending5 physician; providing reporting requirements if the Impairment Rating is consistent with American Medical6 Association guidelines; providing reporting requirements if the Impairment Rating is not7 consistent with certain guidelines; requiring certain physicians explain rationale for certain ratings;8 requiring certain physicians sign reports; providing statement required on certain reports; providing9 procedure if the Medical Impairment Rating physician disagrees with attending physician determinations;10 providing that certain physician services conclude upon the issuance of certain report; providing that11 Medical Impairment Ratings shall be subject to certain review; providing for the removal of Medical12 Impairment Rating physicians in certain circumstances; providing grounds for removal of13 Medical Impairment Rating physician from listing; establishing procedure for complaints regarding14 Medical Impairment Rating physicians; allowing Medical Impairment Rating physicians opportunity to15 respond to certain complaints; authorizing Chief Medical Officer to make determinations concerning16 certain complaints; providing procedure for physicians to request reconsideration of certain17 Chief Medical Officer decisions; providing procedure for reinstatement of certain physicians to Medical18 Impairment Rating Registry; providing Chief Medical Officer authority to impose certain penalties;19 providing discretion to the Chief Medical Officer with respect to certain time limitations; requiring20 parties to cooperate in the scheduling of certain evaluations; prohibiting parties from seeking a21 second opinion in certain circumstances; providing for issuance of final determination of disability by22 Chief Medical Officer; providing limitations for appeal of certain Chief Medical Officer rulings;23 authorizing Commission to select a Chief Medical Officer; requiring confirmation of Chief Medical24 Officer by Senate; providing for review by the Req. No. 5555 Page 8
  9. 9. 1 Commission of Chief Medical Officer’s performance; specifying circumstances and procedure for2 reappointment of Chief Medical Officer; providing for compensation of Chief Medical Officer; establishing3 duties of Chief Medical Officer; providing Commission authority to review certain administrative orders4 issued by the Chief Medical Officer; amending 85 O.S. 2001, Section 22, as last amended by Section 5,5 Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section 22), which relates to compensation schedules for6 specific injuries; providing that the loss of certain body parts shall constitute total disability;7 prohibiting the receipt of both permanent total disability and any other benefit simultaneously;8 authorizing annual certification of continuing disability; providing authority to Commission to9 refer certain cases to fraud unit; establishing partial disability rates for injuries incurred on or10 after the effective date of act; specifying that the odd-lot doctrine shall not apply in permanent11 disability cases; providing for the receipt of certain benefits for injuries incurred prior to12 effective date of act; providing the maximum amount of compensation to be paid for certain disabilities;13 modifying agency designation; amending 85 O.S. 2001, Section 24.1, as amended by Section 21, Chapter 1,14 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 24.1), which relates to record keeping15 requirements; modifying agency designations; amending 85 O.S. 2001, Section 24.2, which relates to notice16 requirements for certain injuries; modifying notice requirements for certain injuries; modifying agency17 designation; amending 85 O.S. 2001, Section 25, which relates to the examination of injured employees;18 modifying agency designation; amending 85 O.S. 2001, Section 26, as amended by Section 22, Chapter 1, 1st19 Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 26), which relates to specific notice20 requirements; removing requirement that Administrator or certain judges approve certain settlements;21 removing requirement that Court promulgate certain rules with respect to compromise settlements;22 removing authority of Court to make certain rulings with respect to payment of certain compromise23 settlements; removing authority of Court to make certain final decisions; modifying agency24 designation; amending 85 O.S. 2001, Section 27.1, Req. No. 5555 Page 9
  10. 10. 1 which relates to cumulative medical testimony in certain cases; modifying agency designation;2 authorizing Commission to review any compensation order, decision or award; providing for the review by3 an administrative law judge or the Commission of certain terminated benefits for certain reasons;4 authorizing Commission to make certain determinations upon review of certain compensation orders;5 authorizing Commission to correct certain clerical errors; amending 85 O.S. 2001, Section 30, as amended6 by Section 23, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 30), which7 relates to certain costs and penalties; modifying agency designation; modifying certain settlement8 offer requirements; extending certain settlement deadlines; limiting amount claimant’s attorney may be9 compensated in certain settlement agreements; prohibiting claimant attorney from deducting or10 withholding certain portions of settlement proceeds from claimant for certain uses; amending 85 O.S.11 2001, Section 41, which relates to the payment of certain permanent partial or permanent total awards;12 modifying agency designation; amending 85 O.S. 2001, Section 41.1, which relates to whether certain13 payments may be credited to employer or insurer; authorizing employers or insurers to deduct certain14 payments made from certain permanent disability awards; removing authority of certain self-insured15 employers to take credit for certain overpayments; amending 85 O.S. 2001, Section 42, as amended by16 Section 1, Chapter 236, O.S.L. 2010 (85 O.S. Supp. 2010, Section 42), which relates to the nonpayment or17 failure to pay awards under certain circumstances; modifying agency designation; modifying applicable18 interest rate to that of average Treasury Bills from preceding year; amending 85 O.S. 2001, Section 43, as19 amended by Section 24, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section20 43), which relates to time limitations of injury or death claims; reducing amount of time a claimant may21 claim compensation after injury; restricting the filing of certain claims after last medical22 treatment; reducing amount of time a claimant may seek compensation for repeated trauma injuries;23 reducing amount of time a claimant may make certain claims after termination of employment; reducing24 amount of time a claimant may pursue a hearing on Req. No. 5555 Page 10
  11. 11. 1 certain claims; reducing amount of time claims may be heard after termination of payments; modifying agency2 designation; authorizing Court to reopen certain claims; amending 85 O.S. 2001, Section 44, as amended3 by Section 25, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 44), which4 relates to certain claims against third-party insurers; modifying agency designation; removing5 prohibition against employer or insurer pursuing the right of subrogation in certain circumstances;6 removing provision allowing employers to have a cause of action against third parties in certain7 circumstances; amending 85 O.S. 2001, Section 45, which relates to certain benefits or assets of a8 claimant being exempt in the determination of certain benefits; providing that the unemployment laws of any9 other state shall not result in duplicative payment of certain benefits; amending 85 O.S. 2001, Section10 47.1, which relates to waiver of compensation by employees in certain circumstances; updating agency11 designation; amending 85 O.S. 2001, Section 48.1, which relates to certain liens for the payment of12 child support; modifying agency designation; amending 85 O.S. 2001, Section 61, as amended by Section 78,13 Chapter 264, O.S.L. 2006 (85 O.S. Supp. 2010, Section 61), which relates to means by which an employer may14 secure compensation to injured employees; modifying agency designation; amending 85 O.S. 2001, Section15 61.2, which relates to workplace safety plans; modifying agency designation; amending 85 O.S. 2001,16 Section 64, as last amended by Section 79, Chapter 264, O.S.L. 2006 (85 O.S. Supp. 2010, Section 64),17 which relates to insurance policy requirements; requiring that insurers have complete settlement18 authority to attend certain dispute resolution proceedings; specifying that certain violations shall19 be subject to certain penalties in dispute resolution proceedings; amending 85 O.S. 2001, Sections 66.1 and20 66.2, which relate to the Individual Self-Insured Guaranty Fund Board and the Group Self-Insurance21 Association Guaranty Fund Board; modifying agency designations; amending 85 O.S. 2001, Sections 80, 81,22 84, 85 and 104, which relate to the Workers’ Compensation Act; modifying agency designation;23 amending 85 O.S. 2001, Section 110, as amended by Section 1, Chapter 338, O.S.L. 2002 (85 O.S. Supp.24 2010, Section 110), which relates to inquiry into an Req. No. 5555 Page 11
  12. 12. 1 employee’s prior claims; providing that an employee’s failure to answer truthfully certain inquiries into2 past injuries shall subject the employee to discharge; modifying agency designation; amending 853 O.S. 2001, Section 112, which relates to the Advisory Council on Workers Compensation; reducing membership4 from nine to seven members; authorizing the Chairman of the Commission to act as ex officio nonvoting5 member; specifying Governor appointments; specifying Speaker of the House of Representatives appointments;6 specifying President Pro Tempore appointments; providing for selection of an additional member;7 prohibiting certain professionals from serving on the Advisory Council; providing for three-year terms;8 specifying quorum requirement of the Advisory Council; modifying agency designations; specifying9 that Council shall consult with the Commission and Chief Medical Officer regarding oversight; amending10 85 O.S. 2001, Sections 149.1 and 149.2, which relate to rules for certain employer self-insured pools;11 modifying agency designation; amending 85 O.S. 2001, Section 171, as amended by Section 27, Chapter 1, 1st12 Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 171), which relates to certain13 definition; modifying agency designation; amending 85 O.S. 2001, Section 173, as last amended by Section14 29, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section 173), which relates to15 the creation of the Multiple Injury Trust Fund; modifying agency designations; amending 85 O.S. 2001,16 Section 175, as last amended by Section 30, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S.17 Supp. 2010, Section 175), which relates to the administration of the Multiple Injury Trust Fund by18 CompSource Oklahoma; modifying agency designation; amending 85 O.S. 2001, Section 177, which relates to19 the creation of an administration fund; modifying agency designations; amending 85 O.S. 2001, Section20 201, as amended by Section 6, Chapter 403, O.S.L. 2010 (85 O.S. Supp. 2010, Section 201), which relates21 to authority of the Administrator to impose certain penalties on health care providers for certain22 violations; modifying agency designation; amending 85 O.S. 2001, Section 201.1, as last amended by Section23 6, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010, Section 201.1), which relates to the creation of a24 Physician Advisory Committee; modifying agency Req. No. 5555 Page 12
  13. 13. 1 designation; providing that recommendations made by the committee concerning acceptable deviations from2 certain guidelines shall be reviewed and adopted by the Chief Medical Officer; removing authority of3 Committee to make certain determinations with respect to permanent impairment; requiring treatment4 guidelines be recommended to Chief Medical Officer for use in all workers’ compensation claims; defining5 medical treatment for certain purposes; requiring that recommended guidelines reflect evidence and6 scientifically approved standards of medical treatment; providing that certain treatments which7 are outside of the scope of treatment guidelines may be approved in certain circumstances; requiring Chief8 Medical Officer to explain in order why treatment is appropriately outside of medical guidelines; removing9 provisions establishing treatment guidelines; modifying agency designation; directing Committee to10 develop certain list; directing Committee to assist Administrator in developing certain plan; defining11 terms; amending 85 O.S. 2001, Section 203, which relates to disputes between carriers or employers;12 modifying agency designation; amending 85 O.S. 2001, Section 211, which relates to authorization to13 inspect or examine certain records; modifying agency designation; repealing 85 O.S. 2001, Section 3.5, as14 amended by Section 10, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2010, Section15 3.5), which relates to venue of workers’ compensation claims; repealing 85 O.S. 2001, Section 21, which16 relates to the computation of average weekly wages; repealing 85 O.S. 2001, Section 28, which relates to17 the review of awards by the Court; repealing 85 O.S. 2001, Section 69.5, which relates to powers and18 duties of the Workers’ Compensation Court Presiding Judge; repealing 85 O.S. 2001, Section 122, which19 relates to the abrogation of the right to recover damages in certain circumstances; repealing 85 O.S.20 2001, Section 201.2, which relates to requiring the Physician Advisory Committee to develop certain21 recommendations; providing for codification; and providing an effective date.222324 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: Req. No. 5555 Page 13
  14. 14. 1 SECTION 1. AMENDATORY 85 O.S. 2001, Section 1.1, as2 amended by Section 7, Chapter 1, 1st Extraordinary Session, O.S.L.3 2005 (85 O.S. Supp. 2010, Section 1.1), is amended to read as4 follows:5 Section 1.1 A. The Workers’ Compensation Act shall not apply6 to cases of occupational disease in which the last injurious7 exposure to the hazards of such disease occurred before June 6,8 1953.9 B. The burden of proof, by a preponderance of the evidence,10 shall be on the party requesting benefits or relief pursuant to the11 provisions of the Workers’ Compensation Act unless otherwise12 specifically provided for by law.13 C. The provisions of the Workers’ Compensation Act shall be14 strictly construed by the Workers’ Compensation Court or Commission15 and any appellate court reviewing a decision of the Workers’16 Compensation Court or Commission.17 SECTION 2. AMENDATORY 85 O.S. 2001, Section 1.2, as18 amended by Section 1, Chapter 453, O.S.L. 2010 (85 O.S. Supp. 2010,19 Section 1.2), is amended to read as follows:20 Section 1.2 A. There is hereby created the Workers21 Compensation Court of Existing Claims which shall consist of eight22 (8) four (4) judges. Each judge of the Court shall be appointed to23 a designated numbered position on the Court. The positions shall be24 numbered one through eight, five of which shall be permanently Req. No. 5555 Page 14
  15. 15. 1 assigned to the Oklahoma City Workers’ Compensation Court and three2 of which shall be permanently assigned to the Tulsa Workers’3 Compensation Court. The initial terms of the judges by position4 number shall expire on the following dates:5 Position 1 shall expire 2-1-14.6 Position 2 shall expire 2-1-14.7 Position 3 shall expire 2-1-14.8 Position 4 shall expire 2-1-12.9 Position 5 shall expire 2-1-12.10 Position 6 shall expire 2-1-16.11 Position 7 shall expire 2-1-16.12 Position 8 shall expire 2-1-12.13 Position 9 shall expire 2-1-12.14 Position 10 shall expire 2-1-14. The next two positions to15 become vacant on or after November 1, 2010, shall not be refilled.16 Thereafter, each position shall be filled by a judge appointed17 to serve an eight-year term. After a judge serves an eight-year18 term, such judge shall be eligible to reapply for an additional term19 after the lapse of a period of not less than three (3) years.20 Provided, the judges serving unexpired terms on the effective21 date of this act shall be eligible upon expiration of such terms for22 appointment to one term of eight (8) years pursuant to this section.23 A judge serving an unexpired term on the effective date of this act24 who serves until such term expires shall be deemed to have served a Req. No. 5555 Page 15
  16. 16. 1 full six-year term. If the judge is not reappointed, such judge2 shall receive full salary, benefits, vesting rights and judicial3 service for retirement purposes during active judicial service for a4 period of not less than five (5) months. Effective November 1,5 2011, all existing positions of the Workers’ Compensation Court6 shall become vacant. The Governor shall appoint four new judges7 from a list of nominees provided by the Judicial Nominating8 Commission who shall be subject to confirmation by a majority of the9 Senate. When a vacancy on the Court of Existing Claims occurs or is10 certain to occur or for initial appointments to the Court, the11 Judicial Nominating Commission shall choose and submit to the12 Governor and the Chief Justice of the Supreme Court the names of13 three persons for each appointment, each of whom has previously14 notified the Commission in writing that he or she will serve as a15 judge if appointed. The Governor shall appoint one of the nominees16 to fill the vacancy with the advice and consent of the Senate. If17 the Senate fails to confirm within ninety (90) days, the Governor18 may select from the two remaining nominees or request three19 additional nominees from the Judicial Nominating Commission. If the20 Governor fails to do so within sixty (60) days, the Chief Justice of21 the Supreme Court shall appoint one of the nominees with the advice22 and consent of the Senate, the appointment to be certified to the23 Secretary of State. If the Senate is not in session when an24 appointment is made, the Senate must confirm such appointment during Req. No. 5555 Page 16
  17. 17. 1 its next regular session. If the Senate fails to confirm such2 appointment, the Governor shall ask the Judicial Nominating3 Commission for the names of three persons, which shall not include4 the name of the candidate not confirmed, and shall submit a new5 candidate to the Senate for confirmation within thirty (30) days of6 receipt of such nominees.7 B. A judge of the Court of Existing Claims shall have been8 licensed to practice law in this state for a period of not less than9 five (5) years and shall have not less than five (5) years of10 workers’ compensation experience prior to appointment. Each judge,11 before entering upon the duties of office, shall take and subscribe12 to an oath of office and file the same with the Secretary of State.13 Each judge shall continue to serve until his or her successor has14 been appointed and qualified. A judge may be removed for cause by15 the Court on the Judiciary prior to the expiration of his or her16 term.17 C. Each judge shall receive a salary equal to that paid to a18 district judge of this state, and shall devote full time to his or19 her duties and shall not engage in the private practice of law20 during the term in office.21 D. The Governor shall appoint from among the judges of the22 Workers Compensation Court of Existing Claims a presiding judge of23 that Court who shall serve for a two-year term commencing with the24 initial appointment beginning January 1, 1987. Any judge so Req. No. 5555 Page 17
  18. 18. 1 appointed shall not serve more than two times in succession. The2 presiding judge shall preside at all hearings held by the Court of3 Existing Claims, preside at such meetings of the judges of the Court4 of Existing Claims as may be necessary and perform such other5 supervisory duties as the needs of the Court of Existing Claims may6 require. The presiding judge may designate one of the other judges7 to act as presiding judge in his or her place whenever necessary8 during the disqualification, disability, or absence of the presiding9 judge. During the disqualification, disability, or absence of the10 presiding judge, the acting presiding judge shall exercise all of11 the powers of the presiding judge.12 E. The Court of Existing Claims and the Workers’ Compensation13 Commission as defined in this act shall have the authority to adopt14 reasonable rules within its respective areas of responsibility15 including the rules of procedure for the Court en banc, after notice16 and public hearing, for effecting the purposes of the Workers17 Compensation Act. All of the judges of the Court of Existing Claims18 and Commissioners for the Workers’ Compensation Commission shall be19 present at all meetings wherein their respective rules are adopted20 or amended. All rules, upon adoption, shall be submitted to the21 Supreme Court, which shall either approve or disapprove them within22 thirty (30) days. All rules, upon approval by the Supreme Court,23 shall be published and be made available to the public and, if not24 Req. No. 5555 Page 18
  19. 19. 1 inconsistent with the law, shall be binding in the administration of2 the Workers Compensation Act.3 F. The Court of Existing Claims is hereby designated and4 confirmed as a court of record, with for all workers’ compensation5 claims for which the date of injury was prior to November 1, 2011.6 With respect to any matter within the limits of its jurisdiction7 their respective jurisdictions, and within such limits the judges or8 Commissioners thereof shall possess the powers and prerogatives of9 the judges of the other courts of record of this state, including10 the power to punish for contempt those persons who disobey a11 subpoena, or refuse to be sworn or to answer as a witness, when12 lawfully ordered to do so.13 G. The principal office of the Court of Existing Claims shall14 be situated in the City of Oklahoma City in quarters assigned by the15 Department of Central Services. The Court of Existing Claims may16 hold hearings in any city of this state. The Tulsa Workers’17 Compensation Court shall not be closed without the approval of the18 Legislature.19 H. All county commissioners and presiding district judges of20 this state shall make quarters available for the conducting of21 hearings by a judge of the Court of Existing Claims upon request by22 the Court of Existing Claims.23 I. The judges of the Court of Existing Claims shall determine24 the qualifications necessary for the job of Administrator. Said Req. No. 5555 Page 19
  20. 20. 1 qualifications shall be submitted to the Chief Justice of the2 Supreme Court for approval, disapproval or modification.3 J. Judges of the Workers Compensation Court of Existing Claims4 or Commissioners for the Workers’ Compensation Commission may punish5 for direct contempt pursuant to Sections 565, 565.1 and 566 of Title6 21 of the Oklahoma Statutes.7 SECTION 3. AMENDATORY 85 O.S. 2001, Section 1.2A, is8 amended to read as follows:9 Section 1.2A Notwithstanding other limits established by law,10 beginning January 1, 1998, the following judicial officers shall11 receive compensation for their services, payable monthly as follows:12 A judge of the Workers Compensation Court of Existing Claims or13 Commissioner of the Workers’ Compensation Commission shall receive a14 salary as prescribed by Section 1.2 of Title 85 of the Oklahoma15 Statutes this title.16 SECTION 4. AMENDATORY 85 O.S. 2001, Section 1.3, as17 amended by Section 8, Chapter 1, 1st Extraordinary Session, O.S.L.18 2005 (85 O.S. Supp. 2010, Section 1.3), is amended to read as19 follows:20 Section 1.3 A. The chief administrative officer of the21 Workers Compensation Court of Existing Claims shall be the22 Administrator, who shall be subject to the general supervision of23 the presiding judge of the Court of Existing Claims, subject to the24 Req. No. 5555 Page 20
  21. 21. 1 general administrative authority of the Chief Justice of the Supreme2 Court.3 B. The person serving as Administrator on the date of passage4 and approval of this act shall continue to serve as Administrator of5 the Court of Existing Claims, provided said person is serving as6 Administrator on the effective date of this act.7 C. Except as provided in subsection B of this section, the8 Administrator shall be appointed by the Governor.9 D. The salary of the Administrator shall be ninety percent10 (90%) of the authorized salary of a judge of the Court of Existing11 Claims.12 E. The Administrator shall serve a six-year term. During the13 term, the Administrator may be removed from office only for cause,14 as provided by law for the removal of officers not subject to15 impeachment, pursuant to the provisions of Sections 1181 through16 1197 of Title 22 of the Oklahoma Statutes.17 F. An Administrator who otherwise qualifies to serve as a judge18 of the Court of Existing Claims shall not be eligible to serve as a19 judge of the Court of Existing Claims for a period of one (1) year20 from the last date served as Administrator of the Court.21 G. In addition to other duties set forth in Title 85 of the22 Oklahoma Statutes this title, the Administrator, subject to approval23 of the presiding judge, shall organize, direct and develop the24 administrative work of the Court of Existing Claims, including the Req. No. 5555 Page 21
  22. 22. 1 docketing, clerical, technical and financial work, establish hours2 of operation, and perform such other duties relating to matters3 within the purview of the Court of Existing Claims as any judge of4 the Court of Existing Claims may request.5 H. The Administrator shall employ other employees of the Court6 of Existing Claims, within budgetary limitation, necessary to carry7 out the work and orders of the Court of Existing Claims in an8 efficient and expedient manner.9 SECTION 5. NEW LAW A new section of law to be codified10 in the Oklahoma Statutes as Section 1.4 of Title 85, unless there is11 created a duplication in numbering, reads as follows:12 A. There is hereby created the Workers Compensation13 Commission. The Workers’ Compensation Commission shall consist of14 three (3) members appointed by the Governor who shall be confirmed15 by the State Senate for terms of six (6) years who shall devote16 their entire time to the duties of the Commission and shall17 administer the provisions of this act.18 One member shall be an attorney, who shall be Chair of the19 Commission and who shall have been engaged in active practice of law20 in the State of Oklahoma for not less than five (5) years next21 preceding the date of appointment and who shall have at least five22 (5) years of experience in workers’ compensation matters in23 Oklahoma. Two members shall be individuals who shall each have at24 least five (5) years of experience and expertise in the field of Req. No. 5555 Page 22
  23. 23. 1 workers’ compensation in Oklahoma. These two members shall not be2 required to be attorneys; however, one of these two members shall be3 a physician as defined in Section 14 of Title 85 of the Oklahoma4 Statutes.5 B. Each member shall receive a salary equal to that of a6 district judge of this state. The salaries shall be paid from the7 Workers’ Compensation Fund and shall be paid in the manner as are8 salaries of other state officials or employees.9 SECTION 6. NEW LAW A new section of law to be codified10 in the Oklahoma Statutes as Section 1.5 of Title 85, unless there is11 created a duplication in numbering, reads as follows:12 A. Under the jurisdiction of the Workers’ Compensation13 Commission there are hereby created the positions of administrative14 law judges. Such judges shall be hired by the Commission and shall15 be located so that one each is permanently assigned to the16 Southeast, Southwest, Northwest and Northeast regions of the state.17 Four additional judges shall be hired by the Commission and shall be18 located two in Tulsa and two in Oklahoma City.19 B. The counties located in the Southeast region shall be:20 Atoka, Bryan, Carter, Choctaw, Coal, Garvin, Haskell, Hughes,21 Johnston, Latimer, LeFlore, Love, Marshall, McCurtain, McIntosh,22 Murray, Okfuskee, Pittsburg, Pontotoc, Pushmataha and Seminole.2324 Req. No. 5555 Page 23
  24. 24. 1 C. The counties located in the Southwest region shall be:2 Beckham, Caddo, Comanche, Cotton, Grady, Greer, Harmon, Jackson,3 Jefferson, Kiowa, Stephens, Tillman and Washita.4 D. The counties located in the Northwest region shall be:5 Alfalfa, Blaine, Beaver, Cimarron, Custer, Dewey, Ellis, Garfield,6 Grant, Harper, Kay, Kingfisher, Major, Noble, Payne, Roger Mills,7 Texas, Woods and Woodward.8 E. The counties located in the Northeast region shall be:9 Adair, Cherokee, Craig, Delaware, Mayes, Muskogee, Nowata, Okmulgee,10 Ottawa, Sequoyah and Washington.11 F. The counties located in the Tulsa region shall be: Creek,12 Osage, Pawnee, Rogers, Tulsa and Wagoner.13 G. The counties located in the Oklahoma City region shall be:14 Canadian, Cleveland, Lincoln, Logan, McClain, Oklahoma and15 Pottawatomie.16 H. All claims for workers’ compensation under Title 85 of the17 Oklahoma Statutes shall be heard in the region of the state where18 the accident occurred, where the claimant resided at the time of the19 injury or where the employer has its primary place of business. The20 determination of regional venue shall be by the priority listed21 above, unless agreed to by both parties. All administrative law22 judges shall be subject to confirmation by the State Senate. Upon23 agreement of the parties, the Commission may hold hearings related24 to a claim by a video conference. Req. No. 5555 Page 24
  25. 25. 1 SECTION 7. NEW LAW A new section of law to be codified2 in the Oklahoma Statutes as Section 1.6 of Title 85, unless there is3 created a duplication in numbering, reads as follows:4 A. The Governor may remove any member of the Workers’5 Compensation Commission for inefficiency, neglect of duty, or6 misconduct in office. The Governor shall provide that member in7 advance a copy of the causes or charges preferred and an opportunity8 to be publicly heard, in person or by counsel, upon not less than9 ten (10) days’ notice. Such removal shall be confirmed by a10 majority of the Senate.11 B. A representative of the Office of the Attorney General shall12 attend the proceedings and, upon the request of the Governor, shall13 advise or assist the Senate in the proceedings.14 C. Either party may require the attendance and testimony of15 witnesses as provided in Title 12 of the Oklahoma Statutes.16 D. If a member is removed, the Governor shall file in the17 Office of the Secretary of State a complete statement of all causes18 or charges made against the member and findings, together with a19 complete record of all proceedings and a transcript of testimony.20 It shall constitute a public record of the state.21 E. The Senate shall have the authority to subpoena and take22 testimony from any party to the removal, including, but not limited23 to, the Governor.24 Req. No. 5555 Page 25
  26. 26. 1 SECTION 8. NEW LAW A new section of law to be codified2 in the Oklahoma Statutes as Section 1.7 of Title 85, unless there is3 created a duplication in numbering, reads as follows:4 A. Members of the Workers’ Compensation Commission shall be5 considered officers of the state and shall take the oath prescribed6 by the Oklahoma Constitution and the laws of Oklahoma.7 B. Except when adopting rules, which requires all members to be8 present and participating, a majority of the Commission shall9 constitute a quorum for the transaction of business, and vacancies10 shall not impair the right of the remaining members to exercise all11 the powers of the full Commission so long as a majority remains.12 C. 1. The Commission shall maintain and keep open, during13 reasonable business hours, an office in Oklahoma City, for the14 transaction of business, at which office its official records and15 papers shall be kept.16 2. The Commission or any member of the Commission shall hold17 sessions and conduct hearings at any local career and technology18 education center, also known as state-sponsored Career Tech, within19 the state.20 D. The Commission shall have a seal for authentication of its21 orders, awards, and proceedings, which shall have inscribed the22 words: “Workers’ Compensation Commission, State of Oklahoma”.2324 Req. No. 5555 Page 26
  27. 27. 1 SECTION 9. NEW LAW A new section of law to be codified2 in the Oklahoma Statutes as Section 1.8 of Title 85, unless there is3 created a duplication in numbering, reads as follows:4 A. 1. For the purpose of administering the provisions of this5 act, the Workers’ Compensation Commission is authorized:6 a. to make such rules and regulations as may be found7 necessary,8 b. to appoint and fix the compensation of temporary9 technical assistants and medical and legal advisers10 and to appoint and to fix the compensation of clerical11 assistants and other officers and employees, and12 c. to make such expenditures, including those for13 personal services, rent, books, periodicals, office14 equipment, and supplies, for printing and binding as15 may be necessary, and for informing people of the16 Counselor program.17 2. a. Prior to the adoption, prescription, amendment18 modification, or repeal of any rule, regulation, or19 form, the Commission shall give at least forty-five20 (45) days’ notice of its intended action.21 b. The notice shall include a statement of the terms or22 substance of the intended action or description of the23 subjects and issues involved, and the time, place, and24 Req. No. 5555 Page 27
  28. 28. 1 manner in which interested persons may present their2 views thereon.3 c. The notice shall be mailed to any person specified by4 law or who shall have requested advance notice of5 rule-making proceedings.6 3. The Commission shall afford all interested persons a7 reasonable opportunity to submit written data, views, or arguments,8 and, if the Commission in its discretion directs, oral testimony or9 argument. The Commission shall comply with the Administrative10 Procedures Act.11 4. All expenditures of the Commission in the administration of12 this act shall be allowed and paid from the Workers’ Compensation13 Fund upon the presentation of itemized vouchers approved by the14 Commission.15 B. 1. The Commission may appoint as many persons to be16 examiners, experts, investigators, counselors, clerks, and other17 employees as it deems necessary to effectuate the provisions of this18 act.19 2. Rate experts shall be considered employees of the Commission20 and the Insurance Commissioner and shall be paid from the Workers’21 Compensation Fund.22 3. Employees appointed pursuant to this subsection shall23 receive an annual salary to be fixed by the Commission within the24 appropriation made for the Commission. Req. No. 5555 Page 28
  29. 29. 1 C. It shall be the duty of an administrative law judge, under2 the rules adopted by the Commission, to hear and determine claims3 for compensation and to conduct hearings and investigations and to4 make such orders, decisions, and determinations as may be required5 by any rule or order of the Commission. The duty of an6 administrative law judge shall be to rule only on issues of7 determination of eligibility for compensation, and shall notify both8 parties of that decision. If the claim is deemed compensable, the9 administrative law judge shall direct medical treatment, if10 appropriate, be provided by a physician selected by the employer,11 and temporary total disability, if appropriate.12 SECTION 10. NEW LAW A new section of law to be codified13 in the Oklahoma Statutes as Section 1.9 of Title 85, unless there is14 created a duplication in numbering, reads as follows:15 Any member or employee of the Workers’ Compensation Commission16 shall be entitled to receive necessary traveling expenses actually17 incurred and for subsistence while traveling on official business18 and away from the designated station of that member or employee.19 The expenses shall be certified by the person who incurred them and20 shall be allowed and paid upon presentation of vouchers approved by21 the Commission.22 SECTION 11. NEW LAW A new section of law to be codified23 in the Oklahoma Statutes as Section 1.10 of Title 85, unless there24 is created a duplication in numbering, reads as follows: Req. No. 5555 Page 29
  30. 30. 1 A. In addition to its other duties and powers, the Workers’2 Compensation Commission is granted full power and authority to:3 1. Hear and determine all claims for compensation, including,4 but not limited to, claims based upon injuries that occurred outside5 the state for which compensation is payable under this act;6 2. Employ a Chief Medical Officer and special medical examiners7 and advisors as necessary who shall be paid a reasonable amount per8 day to be determined by the Commission, plus reasonable traveling9 expenses;10 3. Hear appeals from orders made by the Chief Medical Officer11 regarding ratings of permanent disability, need for medical services12 or assignment of independent medical evaluations;13 4. Approve claims for medical services and attorney fees;14 5. Excuse failure to give notice either of injury or death of15 any employee;16 6. Make, modify, or rescind awards, and make and enter findings17 of fact and rulings of law;18 7. Enter orders in appealed cases;19 8. Determine the time for the payment of compensation and order20 the reimbursement of employers for amounts advanced;21 9. Assess penalties;22 10. Prescribe rules and regulations governing the23 representation of employees, employers, and carriers in respect to24 claims before the Commission; Req. No. 5555 Page 30
  31. 31. 1 11. Issue subpoenas, administer oaths, and take testimony, by2 deposition or otherwise;3 12. Have and exercise all other powers and duties conferred or4 imposed by this act; and5 13. Transfer the excess of income over expenses from the6 Commission’s annual educational conference to any nonprofit7 charitable organization designed to provide scholarships to children8 of workers who have been killed or become permanently and totally9 disabled from a compensable injury, including, but not limited to,10 any accumulation from prior years’ conferences.11 B. 1. In addition to the other powers and duties granted to12 the Commission in this section and otherwise provided by law, the13 Commission is authorized to establish and impose reasonable fees to14 recover the cost of preparation of various informative materials15 distributed by the Commission.16 2. The fees shall be established by regulation of the17 Commission.18 3. Funds derived from fees shall be deposited in the Workers’19 Compensation Fund to be used to defray expenses incurred in20 preparation and distribution of materials.21 SECTION 12. NEW LAW A new section of law to be codified22 in the Oklahoma Statutes as Section 1.11 of Title 85, unless there23 is created a duplication in numbering, reads as follows:24 Req. No. 5555 Page 31
  32. 32. 1 On or before the first day of the regular session of the2 Legislature, the Workers’ Compensation Commission under the3 authority of at least two of its members shall make to the Governor4 and to the Legislature a report of the administration of this act5 for the preceding annual period.6 SECTION 13. AMENDATORY 85 O.S. 2001, Section 3, as last7 amended by Section 1, Chapter 452, O.S.L. 2010 (85 O.S. Supp. 2010,8 Section 3), is amended to read as follows:9 Section 3. As used in the Workers’ Compensation Act:10 1. “Administrator” means the Administrator of workers’11 compensation as provided for in the Workers’ Compensation Act;12 2. “Amount in dispute” means the dollar value of any permanent13 disability award granted to the employee by the Court for a14 disability claim which is greater than the dollar amount offered by15 the employer to the employee for such disability claim if the16 employer admits compensability within twenty (20) days of the filing17 of the Employee’s First Notice of Accidental Injury and Claim for18 Compensation, has not disputed medical treatment, and has made a19 written settlement offer within fifteen (15) thirty (30) days of the20 employee reaching maximum medical improvement;21 3. “Case management” means the ongoing coordination, by a case22 manager, of health care services provided to an injured or disabled23 worker, including, but not limited to:24 Req. No. 5555 Page 32
  33. 33. 1 a. systematically monitoring the treatment rendered and2 the medical progress of the injured or disabled3 worker,4 b. ensuring that any treatment plan follows all5 appropriate treatment protocols, utilization controls6 and practice parameters,7 c. assessing whether alternative health care services are8 appropriate and delivered in a cost-effective manner9 based upon acceptable medical standards, and10 d. ensuring that the injured or disabled worker is11 following the prescribed health care medical treatment12 plan which follows acceptable medical standards as13 adopted by the Chief Medical Officer with the advice14 of the Physician Advisory Committee. Any final15 decision in authorizing medical care or treatment,16 including, but not limited to, medical device17 equipment or prescription drug authorization, shall be18 the sole responsibility of the loss adjuster, unless19 such responsibility has been delegated to another in20 writing;21 4. “Case manager” means a person who:22 a. is a registered nurse with a current, active23 unencumbered license from the Oklahoma Board of24 Nursing, or Req. No. 5555 Page 33
  34. 34. 1 b. possesses one or more of the following certifications2 which indicate the individual has a minimum number of3 years of case management experience, has passed a4 national competency test and regularly obtains5 continuing education hours to maintain certification:6 (1) Certified Disability Management Specialist7 (CDMS),8 (2) Certified Case Manager (CCM),9 (3) Certified Rehabilitation Registered Nurse (CRRN),10 (4) Case Manager – Certified (CMC),11 (5) Certified Occupational Health Nurse (COHN), or12 (6) Certified Occupational Health Nurse Specialist13 (COHN-S).14 The case manager’s objective is to arrange for the delivery of cost-15 effective services that meet the patient’s medical needs. The case16 manager acts both as an ombudsman for the patient and as an agent of17 the payor;18 5. “Child” means any dependent child as defined by the Internal19 Revenue Service;20 6. “Claimant” means a person who claims benefits for an injury21 pursuant to the provisions of the Workers’ Compensation Act;22 6. 7. Commission” means the Workers’ Compensation Commission;23 8. a. “Compensable injury”:24 Req. No. 5555 Page 34
  35. 35. 1 (1) means any injury or occupational illness, causing2 internal or external harm to the body, which3 arises out of and in the course of employment if4 such employment was the major cause of the5 specific injury or illness. An injury, other6 than cumulative trauma, is compensable only if it7 is caused by a specific incident and is8 identifiable by time, place and occurrence unless9 it is otherwise defined as compensable in this10 title. A compensable injury must be established11 by objective medical evidence, as defined in this12 section. An injury by accident is compensable13 only if the accident was the prevailing factor in14 causing both the resulting medical condition and15 disability. The "prevailing factor” is defined16 to be the primary factor, in relation to any17 other factor, causing both the resulting medical18 condition and disability supported by objective19 medical finding,20 (2) includes heart-related or vascular injury,21 illness or death only if an accident or the22 claimant’s employment is the major cause of the23 heart-related or vascular injury. A heart-24 related or vascular injury, illness, or death is Req. No. 5555 Page 35
  36. 36. 1 a compensable injury only if, in relation to2 other factors contributing to the physical harm,3 an accident is the major cause of the physical4 harm.5 An injury, illness or death included in this6 subparagraph shall not be deemed to be a7 compensable injury unless it is shown that the8 exertion of the work necessary to precipitate9 disability or death was extraordinary and unusual10 in comparison to the usual work of the employee11 in the course of the regular employment of the12 employee, or alternatively, that some unusual and13 unpredicted incident occurred which is found to14 have been the major cause of the physical harm.15 Stress, physical or mental, shall not be16 considered in determining whether the employee or17 claimant has met the burden of proof.18 The injury must be established by objective19 medical evidence, as defined in this section.20 The employee has the burden of proof to establish21 by a preponderance of the evidence that such22 unexpected or unforeseen injury was in fact23 caused by the employment. There is no24 presumption from the mere occurrence of such Req. No. 5555 Page 36
  37. 37. 1 unexpected or unforeseen injury that the injury2 was in fact caused by the employment,3 (3) includes personal property which is used to make4 up the physical structure of the body, such as5 artificial dentures, artificial limbs, glass6 eyes, eye glasses and other prostheses which are7 placed in or on the body to replace the physical8 structure which became damaged as a result of the9 injury,10 (4) includes injury due to the willful act of a third11 person directed against an employee because of12 the employee’s employment, and13 (5) includes an injury or disease resulting from a14 vaccine administered at the direction of the15 employer or in response to a declaration by the16 Secretary of the United States Department of17 Health and Human Services under the Public Health18 Services Act to address an actual or potential19 health risk related to the employee’s employment.20 b. “Compensable injury” shall not include:21 (1) mental injury that is unaccompanied by physical22 injury, except in the case of rape, holdups,23 witnessing killings, or violent death which24 arises out of and in the course of employment, Req. No. 5555 Page 37
  38. 38. 1 (2) alcoholism and disabilities attributable thereto,2 (3) drug addiction or disabilities resulting3 therefrom, except when such addiction or4 disability resulted from the use of drugs or5 medicines prescribed for the treatment of the6 initial injury by an authorized physician and the7 employee followed the dosage prescribed,8 (4) an employee’s use of a motor vehicle that was9 provided to the employee by a motor vehicle10 dealer and bears a dealer’s license plate for11 commuting to or from work or any other nonwork12 activity,13 (5) injury or disability caused primarily by the14 natural deterioration of tissue, an organ or part15 of the body, nor by the ordinary, gradual16 deterioration or progressive degeneration caused17 by the aging process, unless the employment is a18 major cause of the deterioration or degeneration19 and is supported by objective medical evidence,20 (6) an injury incurred by an employee by the21 employee’s willful intention to injure oneself or22 another,23 (7) an injury or disease caused by exposure to a24 toxic substance, including, but not limited to, Req. No. 5555 Page 38
  39. 39. 1 asbestos, silica, fungus or mold, unless there is2 a preponderance of the evidence establishing that3 exposure to the specific substance involved, at4 the levels to which the employee was exposed, can5 cause the injury or disease sustained by the6 employee,7 (8) a claim for mental stress resulting solely from8 disciplinary action taken in good faith by the9 employer,10 (9) an injury resulting directly or indirectly from11 idiopathic causes,12 (10) any contagious or infectious disease unless it13 arises out of and occurs during the course of14 employment,15 (11) death due to natural causes occurring while the16 worker is at work,17 (12) injury which was inflicted upon the employee at a18 time when employment services were not being19 performed or before the employee was hired or20 after the employment relationship was terminated,21 or22 (13) injury where the accident was substantially23 occasioned by the use of alcohol, illegal drugs,24 Req. No. 5555 Page 39
  40. 40. 1 or prescription drugs used in contravention of2 the orders of a physician.3 (a) The presence of alcohol, illegal drugs, or4 prescription drugs used in contravention of5 orders of a physician shall create a6 rebuttable presumption that the injury or7 accident was substantially occasioned by the8 use of alcohol, illegal drugs, or9 prescription drugs used in contravention of10 orders of a physician.11 (b) Every employee is deemed by his or her12 performance of services to have impliedly13 consented to reasonable and responsible14 testing by properly trained medical or law15 enforcement personnel for the presence of16 any of the aforementioned substances in the17 body of the employee.18 (c) An employee shall not be entitled to19 compensation unless it is proved by a20 preponderance of the evidence that the21 alcohol, illegal drugs, or prescription22 utilized in contravention of the orders of23 the physician did not substantially occasion24 the injury or accident. Req. No. 5555 Page 40
  41. 41. 1 (d) Notwithstanding Section 554 of Title 40 of2 the Oklahoma Statutes, a public or private3 employer may require an employee to undergo4 drug or alcohol testing if the employee or5 another person has sustained a work-related6 injury. For purposes of workers’7 compensation, an employee who tests positive8 for the presence of substances defined and9 consumed pursuant to Section 465.20 of Title10 63 of the Oklahoma Statutes, alcohol, or11 prescription drugs not prescribed by the12 employee’s treating medical provider shall13 not be eligible for such compensation unless14 the employee proves by a preponderance of15 the evidence that the substances or alcohol16 were not the proximate cause of the injury17 or accident.18 c. A compensable injury must be established by medical19 evidence supported by objective findings as defined in20 this act.21 d. The burden of proof of a compensable injury shall be22 on the employee.2324 Req. No. 5555 Page 41
  42. 42. 1 e. When an employee is determined to have a compensable2 injury, the employee is entitled to medical and3 temporary disability as provided by this section.4 (1) Permanent benefits shall be awarded only upon a5 determination that the compensable injury was the6 major cause of the disability or impairment.7 (2) If any compensable injury combines with a8 preexisting disease or condition or the natural9 process of aging to cause or prolong disability10 or a need for treatment, permanent benefits shall11 be payable for the resultant condition only if12 the compensable injury is the major cause of the13 permanent disability or need for treatment.14 (3) Under this subparagraph, benefits shall not be15 payable for a condition which results from a non-16 work-related independent intervening cause17 following a compensable injury which causes or18 prolongs disability or a need for treatment. A19 non-work-related independent intervening cause20 does not require negligence or recklessness on21 the part of a claimant.22 (4) Nothing in this subparagraph shall limit the23 payment of rehabilitation benefits or benefits24 for disfigurement as set forth in this section. Req. No. 5555 Page 42
  43. 43. 1 f. Aging and the effects of aging on a compensable injury2 are not to be considered in determining whether there3 has been a change in physical condition. Nor shall4 aging or the effect of aging on a compensable injury5 be considered in determining permanent disability6 pursuant to this section or any other section in this7 act. The purpose and intent of this section is to8 annul any and all case law inconsistent with this9 section;10 9. “Court” means the Workers’ Compensation Court of Existing11 Claims, the Workers’ Compensation Commission, the Chief Medical12 Officer or any of the administrative law judges;13 10. “Compensation” means the benefit payable to the employee or14 the dependents of the employee in the form of:15 a. temporary total or temporary partial disability16 payments,17 b. permanent partial or permanent total disability18 payments, settlements or awards, and19 c. other compensation which may include medical care,20 prescription costs, other fees or costs associated21 with physical or vocational rehabilitation and funeral22 expenses.23 Compensation shall be computed on the average weekly wage earned by24 the employee in force at the time of the accident. Where the Req. No. 5555 Page 43
  44. 44. 1 injured employee was working other than full time, the average2 weekly wage shall be determined by dividing the earnings of the3 employee by the number of hours required to earn the wages during4 the period not to exceed fifty-two (52) weeks preceding the week in5 which the accident occurred and by multiplying this hourly wage by6 the number of hours in a full-time work week as set out in this7 title, as it applies to the claimant;8 7. 11. “Cumulative trauma” means a compensable injury, the9 major cause of which results from employment activities which are10 repetitive in nature and engaged in over a period of time and which11 is supported by objective medical evidence as defined in this12 section;13 8. 12. “Death” means only death resulting from a compensable14 injury as defined in this title;15 13. “Employer”, except when otherwise expressly stated, means a16 person, partnership, association, limited liability company,17 corporation, and the legal representatives of a deceased employer,18 or the receiver or trustee of a person, partnership, association,19 corporation, or limited liability company, departments,20 instrumentalities and institutions of this state and divisions21 thereof, counties and divisions thereof, public trusts, boards of22 education and incorporated cities or towns and divisions thereof,23 employing a person included within the term “employee” as herein24 defined. “Employer” may also include the insurance company or Req. No. 5555 Page 44
  45. 45. 1 representative of the insurance company of the employer, if2 appropriate;3 9. 14. “Employee” means any person engaged in the employment of4 any person, firm, limited liability company or corporation covered5 by the terms of the Workers’ Compensation Act, and shall include6 workers associating themselves together under an agreement for the7 performance of a particular piece of work, in which event such8 persons so associating themselves together shall be deemed employees9 of the person having the work executed; provided, that if such10 associated workers shall employ a worker in the execution of such11 contract, then as to such employed worker, both the associated12 employees and the principal employer shall at once become subject to13 the provisions of the Workers’ Compensation Act relating to14 independent contractors. Sole proprietors, members of a15 partnership, individuals who are party to a franchise agreement as16 set out by the Federal Trade Commission franchise disclosure rule,17 16 CFR 436.1 through 436.11, members of a limited liability company18 who own at least ten percent (10%) of the capital of the limited19 liability company or any stockholder-employees of a corporation who20 own ten percent (10%) or more stock in the corporation are21 specifically excluded from the foregoing definition of “employee”,22 and shall not be deemed to be employees as respects the benefits of23 the Workers’ Compensation Act. Provided, a sole proprietor, member24 of a partnership, member of a limited liability company who owns at Req. No. 5555 Page 45
  46. 46. 1 least ten percent (10%) of the capital of the limited liability2 company or any stockholder-employee of a corporation who owns ten3 percent (10%) or more stock in the corporation who does not so elect4 to be covered by a policy of insurance covering benefits under the5 Workers’ Compensation Act, when acting as a subcontractor, shall not6 be eligible to be covered under the prime contractor’s policy of7 workers’ compensation insurance; however, nothing herein shall8 relieve the entities enumerated from providing workers’ compensation9 insurance coverage for their employees. Sole proprietors, members10 of a partnership, members of a limited liability company who own at11 least ten percent (10%) of the capital of the limited liability12 company or any stockholder-employees of a corporation who own ten13 percent (10%) or more stock in the corporation may elect to include14 the sole proprietors, any or all of the partnership members, any or15 all of the limited liability company members or any or all16 stockholder-employees as employees, if otherwise qualified, by17 endorsement to the policy specifically including them under any18 policy of insurance covering benefits under the Workers’19 Compensation Act. When so included, the sole proprietors, members20 of a partnership, members of a limited liability company or any or21 all stockholder-employees shall be deemed to be employees as22 respects the benefits of the Workers’ Compensation Act. “Employee”23 shall also include any person who is employed by the departments,24 instrumentalities and institutions of this state and divisions Req. No. 5555 Page 46
  47. 47. 1 thereof, counties and divisions thereof, public trusts, boards of2 education and incorporated cities or towns and divisions thereof.3 “Employee” shall also include a member of the Oklahoma National4 Guard while in the performance of duties only while in response to5 state orders and any authorized voluntary or uncompensated worker,6 rendering services as a firefighter, peace officer or emergency7 management worker. Provided, “employee” shall not include any other8 person providing or performing voluntary service who receives no9 wages for the services other than meals, drug or alcohol10 rehabilitative therapy, transportation, lodging or reimbursement for11 incidental expenses. “Employee” shall also include a participant in12 a sheltered workshop program which is certified by the United States13 Department of Labor. “Employee” shall not include a person,14 commonly referred to as an owner-operator, who owns or leases a15 truck-tractor or truck for hire, if the owner-operator actually16 operates the truck-tractor or truck and if the person contracting17 with the owner-operator is not the lessor of the truck-tractor or18 truck. Provided, however, an owner-operator shall not be precluded19 from workers’ compensation coverage under the Workers’ Compensation20 Act if the owner-operator elects to participate as a sole21 proprietor. “Employee” shall not include a person referred to as a22 drive-away owner-operator who privately owns and utilizes a tow23 vehicle in drive-away operations and operates independently for24 hire, if the drive-away owner-operator actually utilizes the tow Req. No. 5555 Page 47
  48. 48. 1 vehicle and if the person contracting with the drive-away owner-2 operator is not the lessor of the tow vehicle. Provided, however, a3 drive-away owner-operator shall not be precluded from workers’4 compensation coverage under the Workers’ Compensation Act if the5 drive-away owner-operator elects to participate as a sole6 proprietor;7 10. 15. “Drive-away operations” include every person engaged in8 the business of transporting and delivering new or used vehicles by9 driving, either singly or by towbar, saddle mount or full mount10 method, or any combination thereof, with or without towing a11 privately owned vehicle;12 11. 16. “Employment” includes work or labor in a trade,13 business, occupation or activity carried on by an employer or any14 authorized voluntary or uncompensated worker rendering services as a15 firefighter, peace officer or emergency management worker;16 12. “Compensation” means the money allowance payable to an17 employee as provided for in the Workers’ Compensation Act;18 13. a. “Compensable injury” means any injury or occupational19 illness, causing internal or external harm to the20 body, which arises out of and in the course of21 employment if such employment was the major cause of22 the specific injury or illness. An injury, other than23 cumulative trauma, is compensable only if it is caused24 by a specific incident and is identifiable by time, Req. No. 5555 Page 48

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