SUMMARY OF COURT CHALLENGES – Cases and Issues Resolved Part-II

10. Jenkins v. Doak, Oklahoma County District Court No. CV-2015-784

The district court action is a comprehensive constitutional challenge of OPT OUT, the Oklahoma Injury Benefit Act. The Plaintiff, whose claim was denied because she failed to report the injury within 24 hours to a toll-free number, requests the Court to prohibit the Insurance Commissioner from approving additional OPT OUT plans unless they provide reasonably similar benefits in dollar amount, percentage, and duration. After admitting the claim, Respondent has now denied any further benefits because of a New Mexico doctor’s opinion that all claimant’s problems are pre-existing.

After the Workers’ Compensation Commission ruled the OPT OUT scheme unconstitutional, this case was dismissed. An injunction against the Insurance Commissioner to keep his office from approving further OPT OUT plans is no longer
needed. Also, Rachel Jenkins’ opt-out/Commission case against Res-Care Inc. has now been settled with a confidentiality agreement in regard to the amount of the settlement.

11. Harrison v. Landair Logistics, Inc., Supreme Court No. 113,656

This appeal challenges the constitutionality of sections of Title 85A that limit Temporary Total Disability and the denial of benefits if claimant misses 3 or more medical appointments.

Court Decision:
The Oklahoma Workers’ Compensation Commission denied further indemnity and medical benefits because of 85A O.S. Sec. 57, which allows termination of future benefits upon two or more unexcused absences from medical treatment.
In an unpublished opinion, Division III of the Oklahoma Court of Civil Appeals vacated the decision of the Commission and remanded the case “for further proceedings.” The Court of Civil Appeals rejected the Commission’s conclusion that there was no good excuse for the absences. Presiding Judge Robert Bell, in the 3-0 decision, opined, “Claimant testified he missed several appointments to care for his daughter, who suffers from Crohn’s disease. He also missed one physical therapy session because he was transporting his daughter to an out of town doctor’s appointment…” Judge Bell called Claimant’s testimony “reliable, material, probative and substantially competent.” There was also testimony that the Claimant called the physical therapy clinic every time he was going to miss a scheduled appointment.
The case is remanded to the Commission “for further proceedings to address the competency and validity of Claimant’s proffered excuses.” Because the case was remanded, the appeals panel did not consider Claimant’s allegation that the entire Sec. 57 penalty is arbitrary, capricious, and unconstitutional. That issue is pending. The Supreme Court has retained the appeal of a similar case, Gibby v. Hobby Lobby, which turns on the interpretation of Sec. 57.

12. Rogers v. Sims and UPS, Intervenor, Grady County District Court, CJ-2015-22.

UPS was trying to recover its comp payments in a death case through Section 43 subrogation. The Plaintiff argued that subrogation in a workers’ compensation death case in Oklahoma is unconstitutional.

District Judge Richard Van Dyck ruled that Article 23, Section 7 of the Oklahoma Constitution prohibits the legislature from limiting the recovery in a wrongful death action against a negligent third party except in cases involving the state or other units of government covered by the Oklahoma Governmental Tort Claims Act. The judge specifically ruled that any subrogation right granted employers or their insurance carriers by Section 43 of Title 85A is “in violation of Article 23, Section 7 of the state constitution.”

13. Maxwell v. Sprint PCS, Supreme Court No. 113,898.

The appeal challenges (1) use of the AMA Guides, Sixth Edition, to rate disability, (2) the deferment of PPD if a worker returns to work, and (3) the use of the AMA Guides to rate disability to scheduled members.

On April 12, 2016, the Supreme Court, in a 7-2 decision, opined on three major issues:
(1) PERMANENT PARTIAL DISABILITY (PPD). No edition of the AMA Guides can be used to evaluate permanent disability to scheduled members of the body. (Since the Guides cannot be used in any of the four cases consolidated for the opinion, the Supreme Court said it was not necessary to comment upon the injured workers’ allegation that exclusive use of the AMA Guides is unconstitutional.) THAT AWAITS A FUTURE DECISION OF THE COURT.
In addition, the majority opinion casts serious doubt on the Administrative Workers’ Compensation Act (AWCA)’s statutory scheme of determining PPD at all. While pointing out that the legislature apparently intended for PPD to be based solely on loss of earning capacity with “no consideration as to the physical insult to the employee’s body,” Justice Gurich writes, “loss of function in the medical sense is still relevant to a disability determination.”
At page 18 of the opinion is found a sweeping statement, “Ambiguities and inconsistencies abound in the AWCA, but regardless, as the system has been implemented by the Commission, the due process rights of injured employees have been unconstitutionally abrogated with regard to permanent partial disability determinations and compensation.”
Other noteworthy quotes on PPD:
“The Legislature cannot pre-determine that an injured worker has, in fact, had no loss of wage-earning capacity because he or she returned to his or her job making the same wages.”
“The Legislature is confined to mandating what facts must be adjudged. It may neither predetermine adjudicative facts nor direct that their presence or absence be found from any proof before a tribunal.”
“Since its inception, the system has been designed to restore the loss of earning capacity through four categories of benefits: permanent total disability, temporary total disability, temporary partial disability, and permanent partial disability. Temporary total, temporary partial, and permanent total disability benefits have been, and continue to be, compensated based on an injured employees’ disability, meaning ‘incapacity or loss of function in the physical or medical sense’ established by medical evidence, and the injured employee’s ‘inability to earn wages’ as demonstrated by nonmedical evidence with regard to the employee’s ’employment situation.’”
“Permanent partial disability benefits, and workers’ compensation benefits generally, are not ‘rewards’ or punishment–these benefits replace something the employee lost for which the employer is liable.”

(2) LOSING PPD IF WORKER RETURNS TO WORK. Much of the opinion addresses the legislature’s attempt to take away an award of PPD for workers who return to their jobs. Justice Gurich wrote, “The deferral provision of Sec. 45(C)(5) tramples the due process rights of injured workers and is unconstitutional under Art. 2 Sect 7 of the Oklahoma Constitution.”
The opinion criticizes the deferral or back to work penalty provision because “An injured employee who returns to work receives no compensation for the physical injury sustained and no compensation for a reduction in future earning capacity, UPENDING THE ENTIRE PURPOSE OF THE WORKERS’ COMPENSATION SYSTEM, which is to compensate ‘for loss of earning power and disability to work occasioned by injuries to the body in the performance of ordinary labor.’” Further, Justice Gurich opined, “The deferral scheme…punishes all employees who suffer compensable, admitted injuries.”
In addition to finding that the deferral scheme was unconstitutional as a denial of due process of law, the Court found it also violated the Constitution as a special law, writing, “The Legislature is without power to vary the effect of a permanent partial disability award by excluding one group of claimants from benefits accorded other permanent partial disability recipients.”

(3) CONVERSION OF PPD TO A SCHEDULED MEMBER TO THE BODY AS A WHOLE IS NOT PERMITTED. The Court opined, “If the AMA Guides do not apply to scheduled members, neither do the conversion tables to the body as a whole.” That means that the percentage of PPD to a leg is based upon 100 % to the leg of 275 weeks at the applicable compensation rate, not being converted to the body as a whole and limited to 350 weeks for 100 % to the whole body. THIS PROVISION RESULTED IN A SIGNIFICANT REDUCTION IN BENEFITS FOR AN INJURY TO SCHEDULED MEMBERS.
The practice of converting PPD to a scheduled member to the body as a whole came from April 16, 2014, Notice from a former executive director of the Workers’ Compensation Commission. The Supreme Court slammed the Notice, “The issuance of this Notice lacked any semblance of the procedural due process protections required by the…Oklahoma Constitution and such action were clearly in excess of the Commission’s jurisdiction.”

(4) THE LAST WORD. In the closing paragraph of the opinion, Justice Gurich and the Court’s majority held that:
“Any definitional provisions found in 85A O.S. Sec. 2 [the definitions section], as discussed herein, are invalid to the extent they are inconsistent with the views expressed today.”

It is my humble opinion that any sections of the definitions that tie a disability to returning to work making the same amount of wages have been declared “invalid.” As it should be, the determination of PPD shall be based upon the entire picture of an individual worker’s loss of future earnings and the loss of function in a physical or medical sense.”


14. Smith v. Baze Corp Investments, Supreme Court No. 113,811

The issues were the same as the Maxwell case above. The Supreme consolidated the two cases for a decision.

15. Wells v. Oklahoma Roofing and Sheet Metal, Supreme Court No. 112,844


The lawsuit in the District Court of Oklahoma County challenged the constitutionality of the identical sections in Titles 85 and 85A that limit a direct action for intentional tort against the employer.

The Oklahoma Court of Civil Appeals, Division IV, has held the section of the Oklahoma workers’ compensation law that severely limits district court actions for intentional torts UNCONSTITUTIONAL as a special law and in violation of equal protection and due process.
In the case, Chief Judge Jerry Goodman wrote a 15-page majority opinion that perhaps brings back direct lawsuits against employers allowed by the 2005 Parret case. Since that opinion, the legislature has twice tried to close the worker’s option to file an intentional tort action in district court.
In this case, the Plaintiff’s father, Robert Young, fell to his death because the Plaintiff argues, the Employer’s fall-protection system was not adequate. Plaintiff argues that the Employer was a repeat violator of safety rules and had been fined by OSHA. Plaintiff contends that the Employer’s actions were intentional and negated the exclusivity of the workers’ compensation law.
This case was decided on Section 12 of Title 85. However, the legislature copied the exact language in the exclusive remedy section of the new comp law, Title 85A (Section 5).
The Court of Civil Appeals based its finding of unconstitutionality on the basis that the statute is a special law because it provides for a different burden of proof for injured employees and non-employees. Art. 5 Sec. 46 of the Oklahoma Constitution provides that a law must treat everyone in a class of similarly situated persons the same. In this case, persons who suffered because of an intentional tort are lumped in a single class.
Judge Goodman wrote: If an employer’s intentional act injures two persons, one its employee and the other a non-employee, while both persons must present their claims in district court, the latter may recover damages by proving either specific intent or substantial certainty, while the injured employee may only recover if specific intent is proven…Put another way, Sec. 12 strips an intentionally-injured claimant of the rights and remedies bargained-for under the Act…yet cripples the claimant’s ability to prove the elements of his claim when compared to the burden of a similarly-situated plaintiff. The industrial bargain has been fundamentally altered. We hold this is incompatible with the concepts of equal protection and due process.
The Court of Civil Appeals cited the recent Torres v. Seaboard Foods case and its discussion of the betrayal of the fundamental principles of justice that gave rise to the Grand Bargain.

16. DHS v. Bruce, 2016 OK 43.

The Claimant appealed a decision that denied a new injury claim because she had a pre-existing condition.

The Oklahoma Supreme Court, in another 7-2 decision, reversed the trial judge and the Court of Civil Appeals that denied benefits for a neck injury and denied approval for a recommended two-level fusion. The Trial Judge and Court of Civil Appeals denied compensability of the claim because the claimant had pre-existing problems with her neck and experienced previous neck and arm pain. The Employer argued that the major cause of the need for surgery was the prior problems and not the latest injury.

Justice Gurich, writing for the 7-justice majority, gave a thorough analysis of the medical reports, including the court-appointed IME. Ultimately, the majority found that the clear weight of the evidence favored a finding of compensability and approval of the two-level fusion. Justice Gurich gave great credence to the opinion of the CIME who opined that the claimant had new symptoms after the latest injury.

This case points out the oft-misinterpreted meaning of “major cause” in workers’ compensation in Oklahoma. Both old law and new law talks about the major cause being “more than 50 percent of the resulting injury, disease, or illness.” Major cause deals with the injury itself….not the recommended medical treatment. If a work activity is a major cause of what is found to be an injury–even if it is the aggravation of a pre-existing condition–the respondent is obligated to pay for whatever medical care is reasonable and necessary to correct the current problem.

17. Robinson v. Fairview Fellowship Home, 2016 OK 42.

The Claimant appealed a denial of benefits. Claimant challenges the constitutionality of the parking lot exception to compensability on the grounds that it is a special law and a denial of due process and equal protection.

A unanimous Oklahoma Supreme Court ruled that the Oklahoma Workers’ Compensation Commission and its administrative law judges have the power to determine whether a provision of Title 85A, the 2013 workers’ compensation reform law, is being unconstitutionally applied to a particular party in a Commission proceeding. In other words, the Commission can decide the constitutionality of any part of the new law as it applies to an injured worker or any party. That Commission decision will always be appealable to the Supreme Court.

The Court of Civil Appeals had ruled that the claimant would need to go to district court for a ruling on constitutionality. In the Per Curiam decision, the Supreme lays out a cogent, reasonable basis for the ALJ’s and the Commission to be able to opine on the constitutionality of a statute that affects the parties in a particular case before them.

18. Wonder Bread v. Smith, Sup. Ct. No. 113,943

The Respondent appealed from an order that authorized a total knee replacement for a compensable injury although the IME opined that 95 % of the need for the replacement was a pre-existing condition.


The trial judge found that work-related activity was the major cause of the injury and appointed an IME to determine what medical treatment was necessary. The judge then authorized the total knee replacement as reasonable and necessary medical treatment resulting from the injury. With the denial of certiorari, the Supreme Court has allowed standing perhaps the strongest language yet that makes “major cause” irrelevant to determine what medical treatment is needed for a compensable injury.
Judge Rapp wrote for the Court:
“While a claimant is required to show that employment is a major cause of his injury, workers’ compensation law does not require medical evidence stating the employment is the major cause of the need for a certain type of medical treatment.”
“An IME may properly opine whether a claimant’s employment is the major cause of a claimant’s injury; it may not opine whether that employment is the major cause of the need for a specific course of treatment.”

Continue Reading…Part III