SUMMARY OF COURT CHALLENGES – Cases and Issues Pending

By April 20, 2017CASE RESULTS

TO TITLE 85A, THE ADMINISTRATIVE
WORKERS’ COMPENSATION ACT

Cases and Issues Pending in the Supreme Court, Workers’ Compensation Commission, or  District Court:

1. Young v. Station 27, Inc. Supreme Court No. 113,334

Challenge:
Application for Original Jurisdiction to determine constitutionality of 85A O.S. § 7 which gives Commission authority to hear retaliatory discharge or discrimination claims arising under the AWCA. The Court will decide whether such claims will continue to be heard in district court or before the Workers’ Compensation Commission, with direct appeal to the Supreme Court.

Supreme Court Decision:
The Supreme Court accepted Original Jurisdiction but recast the Original Jurisdiction Application as an Appeal. The case is fully briefed and submitted.
Decision Pending

2. Mullendore v. Mercy Hospital Ardmore, Supreme Court No. 113,560

Challenge:
The appeal challenges the ALJ’s interpretation of Section 2(9)’s definition of a “compensable injury” to include an idiopathic injury. The term idiopathic is not included in the new law.
The case challenges the entire AWCA’s drastic cut in benefits, limitations of compensability, and use of the AMA Guides as a breach of the Grand Bargain, bringing about an end to exclusive remedy.
The case challenges the grant of exclusive remedy, Section 5(C), even if there is no remedy available in Title 85A.
The appeal argues that this provision is a “special law” and is unconstitutional because it provides disparate treatment of members of a single class.

Supreme Court Decision:
Supreme Court has accepted certiorari.

3. Reiner v. Harsco Corporation, WCC No. CM2014-09799A

Challenge:
Disputes the constitutionality of 85A O.S. 45(E)(8), the vocational rehabilitation section in which the Employer is allowed to deduct the cost of tuition from PPD.
Our argument is that the award of PPD is a property right and deduction of the cost of another benefit under the act is not only unfair, it is the taking of property without due process of law. I have checked, and Oklahoma, in the 2013 reforms, is the only state that has ever even thought of REQUIRING AN INJURED WORKER TO PAY FOR HIS OWN VOC REHAB OUT OF HIS PPD AWARD.

Decision:
Pending before the Workers’ Compensation Commission.

4. Pina vs. American Piping Inspection Inc., Supreme Court No. 113,899

Challenge:
Constitutionality of the limitation on compensability while employee is going to and from work. Claimant alleges that supervisor buying his gasoline with a company credit card on the morning of the accident makes it a special mission on an out of town job. Court of Appeals, Division IV, sustained the denial by the Commission.

Supreme Court Decision:
The Supreme Court has accepted certiorari.
Decision Pending

5. Gibby vs. Hobby Lobby Stores, Inc., Supreme Court No. 114,065

Challenge:
Constitutionality of 85A O.S. § 57 which makes a claimant ineligible for further benefits if he or she misses two medical appointments without a valid excuse. Lack of transportation, according to the statute, is not a valid excuse. In an admitted injury, Claimant missed three doctors’ appointments, so PPD and other further benefits were denied.

Supreme Court Decision:
Supreme Court has retained the appeal. The record has been completed and the case is fully briefed.

6. Graham v. D & K Oilfield Services, Commission no. 2016-02878J

Challenge:
This case questions the constitutionality of the six-week limitation of benefits for a hernia. Claimant’s hernia injury was accepted and six weeks TTD were paid. However, Claimant’s surgery was not successful and he is still TTD. The entire scheme will be contested as an unconstitutional arbitrary limitation with no rational state interest that shifts the economic burden to the injured worker. Torres.

Decision:
Pending before Workers’ Compensation Commission.

7. Sabrina White v. Hobby Lobby, CM-2014-07942L, Workers’ Compensation Commission

Challenge:
Attempt to recover BOTH PPD and Loss of Earning Capacity (LEC) based upon teaching of Maxwell v. Sprint and change of definitions in the AWCA.

Decision:
Pending before Commission.

8. Duck v. Hibdon Tire, Workers’ Compensation Commission No. 2014-03688A

Challenge:
Constitutionality of using the Sixth Edition of the AMA Guides to injuries to body as a whole.
Attempt to recover BOTH PPD and Loss of Earning Capacity (LEC) based upon teaching of Maxwell v. Sprint and change of definitions in the AWCA.

Decision:
ISSUE ON APPEAL HAS BEEN RETAINED BY SUPREME COURT

9. Ware v. BC Steel, Workers’ Compensation Commission no. 2014-09975A

Challenge:
Constitutionality of denying medical benefits to an injured worker who is incarcerated. 85A O.S. § 94. This is a denial of due process and is an unconstitutional special law. I understand the denial of TTD because the person cannot work. However, denial of PPD or medical care is blatantly unconstitutional.

Decision:
Pending before the Workers’ Compensation Commission.

10. Walker v. Oklahoma County Sheriff’s Office, Workers’ Comp Commission

Challenge:
Constitutionality of using the Sixth Edition of the AMA Guides to injuries to body as a whole.
Attempt to recover BOTH PPD and Loss of Earning Capacity (LEC) based upon teaching of Maxwell v. Sprint and change of definitions in the AWCA.

Decision:
Pending before the Workers’ Compensation Commission.

11. Foote v. HK & S Iron Company, Workers’ Comp Commission, 2014-08292R

Challenge:
Constitutionality of the 104-week limitation of TTD as an unconstitutional arbitrary limitation with no rational state interest that shifts the economic burden to the injured worker. Torres. Claimant will be TTD beyond 104 weeks following latest surgery.

Decision:
Pending before the Workers’ Compensation Commission.

12. Mikes v. United Parcel Service, Workers’ Comp Commission

Challenge:
Constitutionality of using the Sixth Edition of the AMA Guides to injuries to body as a whole.
Attempt to recover BOTH PPD and Loss of Earning Capacity (LEC) based upon teaching of Maxwell v. Sprint and change of definitions in the AWCA.
Constitutionality of the TTD maximum. The 70 % AWW is fair and equitable, but the maximum is unconstitutional as an unconstitutional arbitrary limitation with no rational state interest that shifts the economic burden to the injured worker. Torres.

Decision:
Pending before the Workers’ Compensation Commission.

13. Nash v. ANJ Transport, Workers’ Comp Commission

Challenge:
Constitutionality of the 104-week limitation of TTD as an unconstitutional arbitrary limitation with no rational state interest that shifts the economic burden to the injured worker. Torres. Claimant will be TTD beyond 104 weeks.

Decision:
Pending before the Workers’ Compensation Commission.

14. Neill v. City of Oologah, Workers’ Comp Commission

Challenge:
Constitutionality of using the Sixth Edition of the AMA Guides to injuries to body as a whole.
Attempt to recover BOTH PPD and Loss of Earning Capacity (LEC) based upon teaching of Maxwell v. Sprint and change of definitions in the AWCA. Neill is a police officer shot in the head in the line of duty.
Constitutionality of the TTD maximum. The 70 % AWW is fair and equitable, but the maximum is unconstitutional as an unconstitutional arbitrary limitation with no rational state interest that shifts the economic burden to the injured worker. Torres.

Decision:
Pending before the Workers’ Compensation Commission.

15. Goforth v. Wheeler Bros. Grain, WC Commission # CM-2014-10197F

Challenge:
Constitutionality of abatement of PPD entitlement without traditional revivor statute for spouse. PPD is a property right and such taking is a denial of due process. Maxwell v. Sprint.

Decision:
Pending before the Workers’ Compensation Commission.

16. Ismael Hernandez v. Rite-Way Construction, WC Commission # CM-2015-01763A

Challenge:
Constitutionality of the TTD maximum. The 70 % AWW is fair and equitable, but the maximum is unconstitutional as an unconstitutional arbitrary limitation with no rational state interest that shifts the economic burden to the injured worker. Torres.

Decision:
Pending before Workers’ Compensation Commission.

17. Robert Hill v. American Medical Response, WC Commission # CM-2015-1094H

Challenge:
Constitutionality of using the Sixth Edition of the AMA Guides to injuries to body as a whole.

Decision:
OKLAHOMA SUPREME COURT HAS RETAINED APPEAL.

18. Jared Upton v. City of Tulsa, WC Commission # CM-2014-07767R

Challenge:
Constitutionality of using the Sixth Edition of the AMA Guides to injuries to body as a whole.

Decision:
OKLAHOMA SUPREME COURT HAS RETAINED APPEAL.

19. Jesse McPeak v. Express Services, WC Commission # CM-2015-03051F

Challenge:
Constitutionality of 85A O.S. § 2(9)(b)(6) requirement that treating physician must find the aggravation of a pre-existing condition “identifiable and significant” in order for a new compensable injury to result from the aggravation of a pre-existing condition.

Decision:
Pending in the Supreme Court.

20. Edward Bray v. Pecofacet, Supreme Court No. 115209

Challenge:
Interpretation of 85A O.S. § 50(B) that allows employer to choose a treating physician within five days of an injury. In this case, the employer admitted one part of the body, but denied another part. Later, the denied part of the body was found to be compensable and the ALJ allowed the Claimant to choose his treating physician. However, the Commission reversed, saying that the section only applies to retrospective medical treatment from a body part later adjudicated as compensable.

Decision:
Pending before the Supreme Court.

21. Russell Stubblefield v. Buddy’s Home Furnishing, Commission No. 2014-05870Q

Challenge:
Constitutionality of using the Sixth Edition of the AMA Guides to injuries to body as a whole.

Decision:
Pending in the Supreme Court.

22. Rickey Miller v. ATC Freightliner, Commission No. CM-2015-01849F.

Challenge:
Constitutionality of the new law subrogation split which gives the employer or carrier two-thirds of the net of a third party recovery up to the amount of the lien. Claimant alleges that the Section 43 split is an arbitrary limit that shifts the economic burden onto the injured worker without a legitimate state interest; that the limitation is a denial of due process, is a special law, and denies an adequate remedy as guaranteed by the Oklahoma Constitution.

Decision:
Pending in district court on a Motion for Distribution.

23. Christopher Forrest v. City of Tulsa, Supreme Court No. 115803

Challenge:
Questions constitutionality of 85A O.S. § 89 which allows an employer to deduct wages paid in excess of the TTD rate from an eventual PPD award. Claimant alleges that the taking of PPD is a special law, is an unconstitutional taking of property repugnant to due process guarantees, and is a denial of an adequate remedy at law.

Decision:
The case is pending in the Oklahoma Supreme Court.

24. Brian McClanahan v. City of Tulsa, Supreme Court No. 115802

Challenge:
Same as in the Forrest case, # 25. Both claimants are City of Tulsa police officers who drew full wages while TTD in accordance with a collective bargaining agreement.

Decision:
The case is pending in the Oklahoma Supreme Court.

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