Summary Of Court Challenges – Part V
ISSUES PENDING
JURISDICTION AND DEFINITION OF INJURY
- Lynch v. Bridgestone, Court of Existing Claims No. 2016-01031J
Challenge:
In a cumulative trauma injury with a date of awareness of 2013, does the Commission now have jurisdiction because more than two years passed from the effective date of the AWCA and the filing of the Form 3?
Decision:
Presiding Judge Taylor ruled that since the date of awareness occurred before the AWCA, such date is the date of the injury and the CEC has exclusive jurisdiction of such injury.
The case is being appealed to the Court en Banc.
- 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.
PRE-EXISTING CONDITION
- Jesse McPeak v. Express Services, Supreme Ct. No. 115,668
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.
TO AND FROM WORK
- 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
SUBROGATION
- Talbot v. Cudd Pressure Control, Inc., Supreme Court No. 116,336
Challenge:
(1) The constitutionality of the 104-week maximum period of TTD;
(2) The constitutionality of the arbitrary 2/3—1/3 subrogation split of the net third party recovery.
Decision:
Pending in the Supreme Court.
PERMANENT PARTIAL DISABILITY
- 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 allegedly a denial of due process and 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:
This case has been settled. The constitutional question will wait for another day.
- Mikes v. United Parcel Service, Workers’ Comp 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.
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.
TEMPORARY TOTAL DISABILITY
- Christopher Forrest v. City of Tulsa, Supreme Court No. 115,803
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. The claimant, a veteran police officer, was paid full wages because of a vested right in a collective bargaining agreement between the police union and the City of Tulsa.
Decision:
The appeal has been retained by the Oklahoma Supreme Court.
- Brian McClanahan v. City of Tulsa, Supreme Court No. 115,802
Challenge:
Same as in the Forrest case above. Both claimants are City of Tulsa police officers who drew full wages while TTD in accordance with a collective bargaining agreement.
Decision:
The case has been retained by the Oklahoma Supreme Court.
- Oneal Gillispie v. Estes Express Lines, Commission No. CM-2014-03399K
Challenge:
The carrier cut off TTD after 104 weeks even though claimant was still under active medical care. Claimant argued that 104-week limitation is unconstitutional or, in the alternative, PTD benefits should be granted per 85A O.S. § 45(D)(1).
Decision:
Judge Sommer wrote a comprehensive order that fully discusses the limitations imposed by the 104-week statute (85A O.S. Sec. 45(A)(1)) and the remedy available for Permanent Total Disability (PTD) while the Claimant otherwise meets the requirements for TTD. (85A O.S. Sec. 45(D)(1))
Judge Sommer used the term “total disability” to distinguish between TTD and PTD and rejected the employer’s contention that any award of PTD, although the Claimant has not reached MMI, must be based upon a finding that Claimant will be PTD after MMI. The Judge wrote, “Interpreting the phrase in that manner would create a gap in benefits that would promote disparity in the way disabled workers are treated.”
The Commission, after remand for a finding of PTD, affirmed the ALJ decision. In a unanimous opinion, the Commission said it was the intent of the Legislature, by adopting 45(D)(1), to pay PTD benefits beyond the 104 weeks even though the worker had not reached maximum medical improvement (MMI). The Commission said, “We find that the Legislature intended to avoid the gap in benefits previously experienced by workers who had exhausted TTD, but were not yet eligible for PTD.”
In rejecting the employer’s argument that PTD should be paid by the Multiple Injury Trust Fund, the Commission found the Legislature did not intend to expand the MITF liability and that the employer is solely responsible for temporary PTD benefits.
The facts in the case: Claimant had undergone two back surgeries and a shoulder surgery and had exhausted 104 weeks TTD. He was awaiting a neck fusion at the time of the ALJ hearing and was released for light duty with a 10 pound restriction, which his employer could not accommodate.
The employer retains the right to defend against long term PTD after the worker reaches MMI. The Commission correctly points out that the use of this statute is temporary. The order said, “A determination of PTD during the healing period is not a final adjudication of permanent disability, but rather a temporary determination of a claimant’s compensation status at the time of the hearing.”
An appeal is anticipated.
- Hidalgo v. Unit Drilling, Supreme Court No. 116,254
Challenge:
The constitutionality of the maximum TTD rate. The claimant was an oilfield worker making substantial wages. Rather than receiving 70 % of his average weekly wage, he was paid $561.00 weekly, the statutory maximum.
Decision:
Pending in the Supreme Court.
- Braitsch v. City of Tulsa, Supreme Court No. 116,510
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. The claimant was paid full wages because of a vested right in a collective bargaining agreement between the union and the City of Tulsa.
Decision:
Pending in the Supreme Court
- VOCATIONAL REHABILITATION
- Reiner v. Harsco Corporation, WCC No. CM-2014-09799A
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:
Respondent did not pursue the provided remedy. The constitutional issue will wait another day.
AMA GUIDES
- Robert Hill v. American Medical Response, Supreme Court No. 115,558
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.
- Jared Upton v. City of Tulsa, Supreme Court No. 115,557
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.
- Russell Stubblefield v. Buddy’s Home Furnishing, Supreme Court No. 115,717
Challenge:
Constitutionality of using the Sixth Edition of the AMA Guides to injuries to body as a whole.
Decision:
Supreme Court has retained the appeal and combined the case with Upton and Hill.
STATUTE OF LIMITATION
- Green Country Physical Therapy v. Anthony Sylvester, Sup. Ct. 116,524
Challenge:
Injured worker challenged 85A O.S. § 69(B)(1) that extends statute of limitations for one year only for the payment of DISABILITY compensation in an admitted claim. The Workers’ Compensation Commission reversed the ALJ and held that the SOL extension applies to payment of BOTH MEDICAL AND DISABILITY compensation. Employer has appealed.
Decision:
Pending in the Supreme Court.