Summary Of Court Challenges – Part II
- Gillispie v. Estes, 2015 OK CIV APP 93, 361 P.3d 543
Claimant appealed ALJ order that he had no compensable injury because he had a previous injury to the same part of the body.
Oklahoma Court of Appeals, Division IV, reversed ALJ’s opinion and held:
(1) An aggravation of a pre-existing condition is a new injury.
(2) The appellate court will look at the entire record in determining if there is evidence to support the adjudicatory decision of an administrative agency acting in a quasi-judicial capacity.
(3) Since most of the time, there is no substantial record before the Commission, the appellate court will look at the record and order of the administrative law judge on appeal.
- DHS v. Bruce, 2016 OK 43, 371 P.3d 484
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 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 the 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.
- CCA of Tennessee, LLC v Angellee Woolf, Supreme Court No. 114,958
The “identifiable and significant” criteria for finding that an aggravation of a preexisting injury is compensable.
It was uncontroverted that the injured worker’s MRI showed degenerative disc disease in the neck. Even though the Employer’s doctor admitted surgery was necessary, he opined that the need for surgery was due to the preexisting degenerative disc disease and not the workplace injury.
The ALJ and the Workers’ Compensation Commission ruled in favor of the injured worker and found the aggravation was “significant and identifiable.” The opinion is interesting because the treating physician never used those magic words. Instead, the treating physician said the accident aggravated claimant’s preexisting condition.
The newest Court of Civil Appeals judge, Barbara Swinton, wrote a well-reasoned opinion for a unanimous panel of Division III. Judge Swinton, in talking about the treating physician’s statement ONLY that the injury was an aggravation, wrote, “This served as substantial, competent evidence of an identifiable and significant aggravation…”
Judge Swinton’s final paragraph said, “The aggravation of a previously asymptomatic cervical degenerative disc disease is a compensable work place injury.” Once there was an injury found under the AWCA, reasonable and necessary treatment was awarded automatically.
- Estenson Logistics v. Hopson, 2015 OK CIV APP 71
Does the AWCA allow the finding of an injury if there was a pre-existing condition and recommendation for treatment before the new injury?
Division I of the Oklahoma Court of Civil Appeals said yes, “A treatment recommendation can be connected both to a pre-existing condition and to an identifiable and significant aggravation. The statutory test, whether the treatment recommendation is reasonably necessary in connection with the injury received by the employee, is a question of fact.”
TO AND FROM WORK
- Robison v. True, 2015 OK CIV APP 94, 362 P.3d 1155
Employer appealed ALJ decision that traveling nurse, paid mileage for a special trip, suffered a compensable injury in automobile accident while traveling from work to his home.
Oklahoma Court of Appeals, Division IV, sustained ALJ and Commission finding of compensability, holding:
(1) The legislature did not abolish the long-held “special task” exception to the general rule of non-compensability for injuries going to and from work. If an injury occurs because the travel was solely due to a special task for the master, it is covered under the new comp law.
(2) If the Employer pays mileage for the travel to and from work, an injury occurring during such travel is compensable.
(3) The legislature intended to abolish certain formerly compensable injuries such as those that occur “off the clock,” even though they occur during a break on employer’s premises. This seems to open the door for common law negligence actions based upon accidents now deemed not work-related by AWCA.
- Torres v. Seaboard Foods LLC, 2016 OK 20, 373 P.3d 1057
The appeal challenges the constitutionality of Section 2(14) which excludes a claim for cumulative trauma unless an employee works for an employer a minimum of 180 days continuously.
The appeal argues that this provision is a “special law” and is unconstitutional because it provides disparate treatment of members of a single class. In addition, the section is a denial of fundamental due process.
Supreme Court Decision:
IN A 50-PAGE DECISION, THE COURT UNANIMOUSLY FOUND THAT THE ARBITRARY 180-DAY LIMIT ON CUMULATIVE TRAUMA WAS UNCONSTITUTIONAL AS A DENIAL OF FEDERAL AND STATE DUE PROCESS.
IN THE COMPREHENSIVE OPINION, THE SUPREME COURT SAID THAT THE LEGISLATURE MUST HAVE A RATIONAL STATE INTEREST IN CUTTING BENEFITS AND SHIFTING THE ECONOMIC BURDEN TO AN INJURED WORKER. IF THERE IS NO RATIONAL STATE INTEREST FOR SETTING AN ARBITRARY LIMITATION OF BENEFITS, IT IS A DENIAL OF FEDERAL AND STATE DUE PROCESS.
- Vasquez v. Dillard’s, 2016 OK 89, 381 P.3d 768
The Opt Out Act is unconstitutional as a special law and as a denial of due process.
A 7-2 majority of the Oklahoma Supreme Court held the Oklahoma Opt Out scheme unconstitutional as a special law that provides differing benefits for Oklahoma workers.
In a 40+-page opinion, including substantial concurring opinions, the Supreme Court tossed out Opt Out.
Opt out is the biggest attack on the American worker in my 36 years of representing injured workers. If allowed to stand, the plans of the companies such as Dillard’s, Big Lots, and ResCare, the nation’s largest home health care agency, would have deprived injured workers of necessary surgeries and weekly benefits. Opt out also would have allowed companies to shift the cost of paying for work-related injuries to Medicare, Medicaid, and Social Security.
This case has been settled.
- Pilkington v. Dillard’s Inc., U.S. District Court, Western District of OK, CIV-15-938-M.
Dillard’s denied this case under its Oklahoma Option (Opt Out) benefit plan. All administrative appeals within the plan have been exhausted and the case has been appealed to the Workers’ Compensation Commission. HOWEVER, Dillard’s removed the case to federal court, claiming it is governed by ERISA, rather than state law that provides for appeal to the Workers’ Compensation Commission and then to the Oklahoma Supreme Court. A federal judge remanded it back to the Commission.
Opt Out is unconstitutional per Vasquez v. Dillard’s. This case will now proceed before the Workers’ Compensation Commission. The case has been settled.
- 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.
MISSED MEDICAL APPOINTMENTS
- Gibby vs. Hobby Lobby Stores, Inc., 2017 OK 78
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:
The Court declared Section 57 unconstitutional in its entirety. The majority found that denying further benefits because of missed medical appointments was a denial of an adequate remedy under the Oklahoma Constitution, Art. 2, § 6.
- 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.
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 was decided in Gibby v. Hobby Lobby.
- Guzman v. Michelin, Supreme Court No. 116252
A challenge of § 57 that allows cessation of future benefits if a claimant misses two or more medical treatment visits without a valid excuse.
Section 57 is unconstitutional per Gibby v. Hobby Lobby Stores, Inc.