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ENGROSSED SENATE AMENDMENT
TO
ENGROSSED HOUSE
BILL NO. 2375 By: Kannady of the House
and
Thompson (Roger) of the
Senate
[ workers' compensation - compensable injury –
accidents - exclusive *** of Workers' Compensatio n
Court of Existing Claims - effective date –
emergency ]
AMENDMENT NO. 1. Page 1, strike the stricken title, enacting clause
and entire bill and insert
“[ workers’ compensation - compensable injury –
accidents - exclusive nature of remedy - liability
for intentional acts - permanent partial disability -
compensation for loss of certa in scheduled members -
computation of certain benefit amounts - beneficiary
payments - travel reimbursement process – claims -
permanent disability – Oklahoma Workers’ Compensation
Commission - independent medical examiner - Judges of
Workers’ Compensation Court of Existing Claims -
effective date –
emergency ]
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 85A O.S. 2021, Section 2, is
amended to read as follows:
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Section 2. As used in the Administrative Workers’ Compensation
Act:
1. “Actually dependent” means a surviving spouse, a child or
any other person who receives one-half (1/2) or more of his or her
support from the employee;
2. “Carrier” means any stock company, mutual company, or
reciprocal or interinsurance exchange authorized to write or carry
on the business of workers ’ compensation insurance in this state.
Whenever required by the cont ext, the term “carrier” shall be deemed
to include duly qualified self -insureds or self-insured groups;
3. “Case management” means the ongoing coordination, by a case
manager, of health care services provided to an injured or disabled
worker, including bu t not limited to systematically monitoring the
treatment rendered and the medical progress of the injured o r
disabled worker; ensuring that any treatment plan follows all
appropriate treatment protocol s, utilization controls and practi ce
parameters; assessing whether alternative health care servic es are
appropriate and delivere d in a cost-effective manner based upon
acceptable medical standards; and ensuring that the injured or
disabled worker is follow ing the prescribed health care pla n;
4. “Case manager” means a person who is a registered nurse with
a current, active unencumb ered license from the Oklahoma Boa rd of
Nursing, or possesses one or more of the following certifications
which indicate the ind ividual has a minimum number of ye ars of case
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management experience, has passed a national compet ency test and
regularly obtains continuing education hours to mai ntain
certification:
a. Certified Disability Management Specialist (CDMS),
b. Certified Case Manager (CCM),
c. Certified Rehabilitation Registered Nurse (CRRN),
d. Case Manager - Certified (CMC),
e. Certified Occupational Health Nurse (COHN), or
f. Certified Occupational Health Nurse Specialist (COHN -
S);
5. “Certified workplace medical plan ” means an organization of
health care providers or any other entity, certified by the State
Commissioner of Health, that is authorized to enter into a
contractual agreement with an employer, group self -insurance
association plan, an employer ’s workers’ compensation insurance
carrier, third-party administrator or an insured to provide medical
care under the Administrative Workers ’ Compensation Act. Certified
plans shall only include plans which provide medical services and
payment for services on a fee -for-service basis to medical
providers;
6. “Child” means a natural or adopted son or daughter of the
employee under eighteen (18) years o f age; or a natural or adopted
son or daughter of an employee eighteen (18) years of age or over
who is physically or mentally i ncapable of self-support; or any
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natural or adopted son or daughter of an employee eighteen (18)
years of age or over who is act ually dependent; or any natural or
adopted son or daughter of an employee between eighteen (18) and
twenty-three (23) years of a ge who is enrolled as a full-time
student in any accredited educational institution. The term “child”
includes a posthumous chi ld, a child legally adopted or one for whom
adoption proceedings are pending at the time of death, an actually
dependent stepchild or an actually dependent acknow ledged child born
out of wedlock;
7. “Claimant” means a person who claims benefits for an inj ury
or occupational disease pursua nt to the provisions of the
Administrative Workers ’ Compensation Act;
8. “Commission” means the Oklahoma Workers’ Compensation
Commission;
9. a. “Compensable injury” means damage or harm t o the
physical structure of the body, or damage or harm to
prosthetic appliances, including eyeglasses, contact
lenses, or hearing aids, of which the major cau se is
either an accident, cumulative trauma or occupational
disease arising out of the course and scope of
employment. An “accident” means an event involving
factors external to the employee that:
(1) was unintended, unanticipated, unforeseen,
unplanned and unexpected,
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(2) occurred at a specifical ly identifiable time and
place,
(3) occurred by chance or from unknown causes, or
(4) was independent of sickness, mental incapa city,
bodily infirmity or any other cause , and
(5) was not as the result of an intent ional act.
b. “Compensable injury” does not include:
(1) injury to any active participant in assa ults or
combats which, although they may occur in the
workplace, are the r esult of non-employment-
related hostility or animus of one, both, or all
of the combatants and which assault or combat
amounts to a deviation from customary duties;
provided, however, injuries caused by horseplay
shall not be considered to be compensable
injuries, except for innocent victims,
(2) injury incurred while engaging in or perfor ming
or as the result of engaging in or per forming any
recreational or social activities for the
employee’s personal pleasure,
(3) injury which was inflicted on the employ ee at a
time when employment services were not being
performed or before the employee was hired or
after the employment relation ship was terminated,
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(4) injury if the accident was ca used by the use of
alcohol, illegal drug s, or prescription drugs
used in contravention of physician ’s orders. If
a biological specimen is collected within twe nty-
four (24) hours of the employee being i njured or
reporting an injury, or if at any time after the
injury a biological specimen is col lected by the
Oklahoma Office of the Chief Medical Examiner if
the injured employee does not survive for at
least twenty-four (24) hours after the injury and
the employee tests positive for intoxication, an
illegal controlled substance, or a legal
controlled substance used in contravention to a
treating physician’s orders, or refuses to
undergo the drug and alcohol testing , there shall
be a rebuttable presumption t hat the injury was
caused by the use of alcohol, illeg al drugs, or
prescription drugs used in contravention of
physician’s orders. This presumption may only be
overcome if the employee proves by clear and
convincing evidence that his or her state of
intoxication had no causal relationship to the
injury,
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(5) any strain, degeneration, damage or harm to, or
disease or condition of, t he eye or
musculoskeletal structure or other body part
resulting from the natural res ults of aging,
osteoarthritis, arthritis, o r degenerative
process including, but not limited to,
degenerative joint disease, degenerative disc
disease, degenerative
spondylosis/spondylolisthesis and spinal
stenosis, or
(6) any preexisting condition except when the
treating physician clearly confirm s an
identifiable and significant aggravation incurred
in the course and scope of employment ,
(7) any injury resulting from an idiopathic injury or
condition, or
(8) any injury resulting from an intentional act.
c. Where compensation is payable for an inj ury resulting
from cumulative trauma, the last employer in whose
employment the employee was l ast injuriously exposed to
the trauma during a period of at least ninety (90) days
or more, and the insurance carrier, if any, on the risk
when the employee was last so exposed under such
employer, shall alone be liab le therefor, without
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right to contribution from any prior employer or
insurance carrier. If there is no employer in whose
employment the employee was injuriou sly exposed to the
trauma for a period of at least ninety (90) days, then
the last employer in whose employment the employee was
last injuriously exposed to the trauma and the
insurance carrier, if any, on the risk when such
employee was last so exposed under such employer,
shall be liable therefo r, with right to contribution
from any prior employer o r insurance carrier.
d. A compensable injury shall be established by m edical
evidence supported by objective findings as defined in
paragraph 31 33 of this section.
d. e. The injured employee shall prove by a preponderance
of the evidence that he or she ha s suffered a
compensable injury.
e. f. Benefits shall not be payable f or a condition which
results from a non-work-related independent
intervening cause follow ing a compensable injury which
causes or prolongs disability, aggravation, or
requires treatment. A non-work-related independent
intervening cause does not require ne gligence or
recklessness on the part of a claimant.
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f. g. An employee who suffers a compe nsable injury shall be
entitled to receive compensation as prescribed in this
act the Administrative Workers’ Compensation Act.
Notwithstanding other provisions of law, if it is
determined that a compensable inj ury did not occur,
the employee shall not be entitled to compensation
under this act the Administrative Workers ’
Compensation Act;
10. “Compensation” means the money allowa nce payable to the
employee or to his or her dependents and i ncludes the medical
services and supplies provided for in Section 50 of this title and
funeral expenses;
11. “Consequential injury ” means injury or harm to a part of
the body that is a direct re sult of the injury or medical treatment
to the part of the bo dy originally injured in the claim. The
Commission shall not make a finding of a consequential injury unless
it is established by objective medical evidence that medical
treatment for such part of the body is required;
12. “Continuing medical maintenance ” means medical treatment
that is reasonable and necessary to main tain claimant’s condition
resulting from the compensable injury or illness after reaching
maximum medical improvement. Continuin g medical maintenance shall
not include diagnostic tests, sur gery, injections, counseling,
physical therapy, or pain management devices or equipment;
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13. “Course and scope of employment ” means an activity of any
kind or character for which the employee wa s hired and that relates
to and derives from the work, busine ss, trade or profession of an
employer, and is performed by an emp loyee in the furtherance of the
affairs or business of an employer. The term includes activities
conducted on the premises of an employer or at other locations
designated by an employer and travel by an employee in furtheranc e
of the affairs of an employe r that is specifically directed by the
employer. This term does not include:
a. an employee’s transportation to and from his or her
place of employment,
b. travel by an employee in furthera nce of the affairs of
an employer if the travel is also in further ance of
personal or private affairs of the employee,
c. any injury occurring in a parking lot or other common
area adjacent to an employer’s place of business
before the employee clocks in o r otherwise begins work
for the employer or after the employee clo cks out or
otherwise stops work for the employer unless the
employer owns or maintains exclusive control over the
area, or
d. any injury occurring while an employee is on a work
break, unless the injury occurs while the employ ee is
on a work break inside t he employer’s facility or in
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an area owned by or exclusively controlled by the
employer and the work break is authorized by the
employee’s supervisor;
14. “Cumulative trauma” means an injury to an employee that is
caused by the combined effect of repetiti ve physical activities
extending over a period of time in the course and scope of
employment. Cumulative trauma shall not mean f atigue, soreness or
general aches and pain that may have been caused, aggravated,
exacerbated or accelerated by the employee ’s course and scope of
employment. Cumulative trauma shall have resulted directly and
independently of all other causes;
15. “Death” means only death resultin g from compensable injury
as defined in paragraph 9 of this section;
16. “Disability” means incapacity because of compensable injury
to earn, in the same or any other employment, substantially th e same
amount of wages the emplo yee was receiving at the tim e of the
compensable injury;
17. “Drive-away operations” includes every person engaged in
the business of transporting and delivering new or used vehicles by
driving, either singly or by towbar, saddle-mount or full-mount
method, or any combination thereo f, with or without towing a
privately owned vehicle;
18. a. “Employee” means any person, including a minor, in the
service of an employer under any contract of hire or
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apprenticeship, written or o ral, expressed or implied,
but excluding one whose employmen t is casual and not
in the course of the trade, business, profession, or
occupation of his or her e mployer and excluding one
who is required to perform work for a municipality or
county or the state or federal government on havi ng
been convicted of a crimi nal offense or while
incarcerated. “Employee” shall also include a m ember
of the Oklahoma National Guard while in the
performance of duties only while in response to state
orders and any authoriz ed voluntary or uncompensated
worker, rendering services as a firefighter, law
enforcement officer or emergency management worker .
Travel by a police officer, fireman, or a member of a
first aid or rescue squad, in responding to and
returning from an emer gency, shall be deemed to be in
the course of employment.
b. The term “employee” shall not include:
(1) any person for whom an em ployer is liable under
any Act of Congress for providing compensation to
employees for injuries, disease or death arising
out of and in the course of employmen t including,
but not limited to, the Federal Employees ’
Compensation Act, the Federal Employers ’
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Liability Act, the Longshore a nd Harbor Workers’
Compensation Act and the Jones Act, to the extent
his or her employees are sub ject to such acts,
(2) any person who is employed in agricul ture,
ranching or horticulture by an employer who had a
gross annual payroll in the preceding calen dar
year of less than One Hundred Thousand Dollars
($100,000.00) wages for agricultural, ranching or
horticultural workers, or an y person who is
employed in agriculture, ranching or horticulture
who is not engaged in operation of motorized
machines. This exemption applies to any period
of time for which such employment exists,
irrespective of whether or not the person is
employed in other activities for which the
exemption does not apply. If the person is
employed for part of a year in exempt activities
and for part of a year in nonexempt activities,
the employer shall be responsible for providing
workers’ compensation only for the period of time
for which the person is employed in nonexempt
activities,
(3) any person who is a licensed real estate sales
associate or broker, paid on a commission basis,
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(4) any person employed by an employer with five o r
fewer total employees, all of whom are related
within the second degree by blood or marriage to
the employer, all of whom are d ependents living
in the household of the employer, or all of whom
are a combination of such relatives and
dependents. If the e mployer is not a natural
person such relative shall be relat ed within the
second degree by blood or marriage to a person
who owns fifty percent (50%) or more o f the
employer, or such dependent shall be in the
household of a person who owns fifty percent
(50%) or more of the employer,
(5) any person employed by an e mployer which is a
youth sports league which qualifies for exemption
from federal income taxation p ursuant to federal
law,
(6) sole proprietors, members of a partnership,
individuals who are party to a franchise
agreement as set out by the Federal Trade
Commission franchise disclosure rule, 16 CFR
436.1 through 436.11, memb ers of a limited
liability company who own at least ten percent
(10%) of the capital of the limited liability
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company or any stockholder-employees of a
corporation who own ten percent (10 %) or more
stock in the corporation, unless they elect to be
covered by a policy of insurance cover ing
benefits under the Administrative Workers ’
Compensation Act,
(7) any person providing or perf orming voluntary
service who receives no wages for the servi ces
other than meals, drug or alcohol rehabilitative
therapy, transportation, lodging or reimbursem ent
for incidental expenses except for volunteers
specifically provided for in subparagraph a of
this paragraph,
(8) a person, commonly referred to as an own er-
operator, who owns or leases a truck -tractor or
truck for hire, if the owner-operator actually
operates the truck-tractor or truck and if the
person contracting with the owner -operator is not
the lessor of the truck-tractor or truck.
Provided, however, an owner-operator shall not be
precluded from workers ’ compensation coverage
under the Administrat ive Workers’ Compensation
Act if the owner-operator elects to participate
as a sole proprietor,
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(9) a person referred to as a dri ve-away owner-
operator who privately owns and utilizes a tow
vehicle in drive-away operations and operates
independently for hi re, if the drive-away owner-
operator actually utilizes the tow vehicle and if
the person contracting with the drive-away owner-
operator is not the lessor of the tow vehicle.
Provided, however, a drive -away owner-operator
shall not be precluded from worker s’ compensation
coverage under the Administrative Workers ’
Compensation Act if the drive -away owner-operator
elects to participat e as a sole proprietor, and
(10) any person who is employed as a domestic servant
or as a casual worker in and about a private home
or household, which private home or household had
a gross annual payroll in the preceding ca lendar
year of less than Fifty T housand Dollars
($50,000.00) for such workers;
19. “Employer” means a natural person, partnershi p,
association, limited liabil ity company, corporation, and the legal
representatives of a deceased employer, or the receiver o r trustee
of a person, partnersh ip, association, corporation , or limited
liability company, departments, instrumentalities and in stitutions
of this state and divisions thereof, counties and divisions thereof,
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public trusts, boards of education and incorpor ated cities or towns
and divisions thereof, employing a pers on included within the term
“employee” as defined in this section. E mployer may also mean the
employer’s workers’ compensation insurance carrier, if applicable.
Except as provided otherwise, this act the Administrative Workers ’
Compensation Act applies to all public and private entities and
institutions;
20. “Employment” includes work or labor in a t rade, business,
occupation or activity carried on by an employer or any authorized
voluntary or uncompensated worker rendering services as a
firefighter, peace officer or eme rgency management worker;
21. “Evidence-based” means expert-based, literature-supported
and outcomes validated by well-designed randomized trials when such
information is availab le and which uses the best available evidence
to support medical decision mak ing;
22. “Gainful employment” means the capacity to perform
employment for wages for a period of time that is not part-time,
occasional or sporadic;
23. “Idiopathic” means an injury or condition, where neither the
cause, nor the resulting injury bears an y special relation to the
work or to the conditions under which the act was being performed and
though it occurs in the course of the employment, does not arise out
of the employment;
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24. “Impaired self-insurer” means a private self -insurer or
group self-insurance association that fails to pay its workers ’
compensation obligations, or is financially unable to do so and is
the subject of any proceeding under the Federal federal Bankruptcy
Reform Act of 1978, and any subseq uent amendments or is the subject
of any proceeding in which a receiver, custodian, liquidator,
rehabilitator, truste e or similar officer has been appointed by a
court of competent jurisdiction to act in lieu of or on behalf of
the self-insurer;
24. 25. “Incapacity” means inadequate strength or ab ility to
perform a work-related task;
25. 26. “Insurance Commissioner ” means the Insurance
Commissioner of the State of Oklahom a;
26. 27. “Insurance Department ” means the Insurance Department
of the State of Oklah oma;
27. 28. “Intentional act” means an injury occurring only when
the employee is injured as a result of a willfu l, deliberate, and
specific intent to cause such injury and only when the act that was
the proximate cause of the injury was not normally within the
employer-employee relationship and was not an employment risk related
to the business of the employer. Knowledge that the injury was
substantially certain to result from the conduct shall not constitute
an intentional act;
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29. “Major cause” means more than fifty per cent (50%) of the
resulting injury, disease or illness. A finding of major cause
shall be established by a preponderance of the evidence. A finding
that the workplace was not a major cause o f the injury, disease or
illness shall not adversely affect the exclusive remedy provi sions
of this act the Administrative Workers ’ Compensation Act and shall
not create a separate cause of action outside this act the
Administrative Workers ’ Compensation Act;
28. 30. “Maximum medical improvement” means that no further
material improvement would reasonably be expected from medical
treatment or the passage o f time;
29. 31. “Medical services” means those services specified in
Section 50 of this title;
30. 32. “Misconduct” shall include the following:
a. unexplained absenteeism or tardiness,
b. willful or wanton indifference to or neglect of the
duties required,
c. willful or wanton breach of any duty required by the
employer,
d. the mismanagement of a positi on of employment by
action or inaction,
e. actions or omissions that place in jeopardy the
health, life, or property of self or others,
f. dishonesty,
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g. wrongdoing,
h. violation of a law, or
i. a violation of a policy or rule adopted to ensure
orderly work or the safety of self or others;
31.
33. a. (1) “Objective findings” are those findings which
cannot come under the voluntary control of the
patient.
(2) (a) When determining permanent disability, a
physician, any other medical provider, an
administrative law judge, the Commission or
the courts shall not consider complaints of
pain.
(b) For the purpose of making permanent
disability ratings to the spine, physicians
shall use criteria established by the Sixth
Edition of the American Medical Association
“Guides to the Evaluation of Permanent
Impairment”.
(3) (a) Objective evidence necessary to prove
permanent disability in occupational hearing
loss cases may be established by medically
recognized and accepted clinical diagnostic
methodologies, including, but not limited
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to, audiological tests that measur e air and
bone conduction thresholds and speech
discrimination ability.
(b) Any difference in the baseline hearing
levels shall be confirmed by subsequent
testing; provided, however, such test shall
be given within four (4) weeks of the
initial baseline hearing level test but not
before five (5) days after being adjusted
for presbycusis.
b. Medical opinions addressing compensability and
permanent disability shall be stated within a
reasonable degree of medical certainty;
32. 34. “Official Disability Guidel ines” or “ODG” means the
current edition of the Official Disability Guidelines and the ODG
Treatment in Workers’ Comp Compensation as published by the Work
Loss Data Institute;
33. 35. “Permanent disability ” means the extent, expressed a s a
percentage, of the loss of a portion of the total physiological
capabilities of the human body as established by competent med ical
evidence and based on the Sixth Edition of the American Medical
Association “Guides to the Evaluation of Permanent Impair ment”, if
the impairment is con tained therein;
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34. 36. “Permanent partial disability ” means a permanent
disability or loss of use after maximum medical improvement has been
reached which prevents the injured employee, who has been released
to return to work by the treating physician, f rom returning to his
or her pre-injury or equivalent job . All evaluations of permanent
partial disability must be supported by objective findings;
35. 37. “Permanent total disability ” means, based on objective
findings, incapacity, based upon accidental injury or occupational
disease, to earn wages in any employment for which the employee may
become physically suited and reasonably fitted by education,
training, experience or vocational rehabilit ation provided under
this act the Administrative Workers ’ Compensation Act. Loss of both
hands, both feet, both legs, or both eyes, or any two thereof, shall
constitute permanent total disability;
36. 38. “Preexisting condition” means any illness, injury ,
disease, or other physical or mental condition, whether or not work -
related, for which medical advice, diagnosis, care or treatment was
recommended or receiv ed preceding the date of injury;
37. 39. “Pre-injury or equivalent job” means the job that the
claimant was working for the employer at the time the injury
occurred or any other employment offered by t he claimant’s employer
that pays at least one hundred percent (100%) of the employee ’s
average weekly wage;
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38. 40. “Private self-insurer” means a private employer that
has been authorized to self -insure its workers’ compensation
obligations pursuant to this act the Administrative Workers ’
Compensation Act, but does not include group self -insurance
associations authorized by this act the Administrative Workers’
Compensation Act, or any public empl oyer that self-insures pursuant
to this act the Administrative Workers ’ Compensation Act;
39. 41. “Prosthetic” means an artificial device used to replace
a part or joint of the body that is lost or injured in an accident
or illness covered by this act the Administrative Workers ’
Compensation Act;
40. 42. “Scheduled member” or “member” means hands, fingers,
arms, legs, feet, toes, and eyes. In addition, for purposes of the
Multiple Injury Trust Fund only, “scheduled member” means hearing
impairment;
41. 43. “Scientifically based ” involves the application of
rigorous, systematic, and objective procedures to obtain reliable
and valid knowledge relevant to medical testing, diagnoses and
treatment; is adequate to justify the general conclusion s drawn; and
has been accepted by a peer -review journal or approved by a panel of
independent experts thro ugh a comparably rigor ous, objective, and
scientific review;
42. 44. “State average weekly wage ” means the state avera ge
weekly wage determined by th e Oklahoma Employment Security
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Commission in the preceding calendar year. If such determination is
not available, the Commissio n shall determine the wage annually
after reasonable investigation;
43. 45. “Subcontractor” means a person, firm, corporation o r
other legal entity hired by the general or prime contractor to
perform a specific task for the completio n of a work-related
activity;
44. 46. “Surgery” does not include an injection, or the forcing
of fluids beneath the sk in, for treatment or diagnosis;
45. 47. “Surviving spouse” means the employee’s spouse by
reason of a legal marriage recognized by the S tate of Oklahoma or
under the requirements of a common law marriage in this state, as
determined by the Oklahoma Workers’ Compensation Commission;
46. 48. “Temporary partial disability ” means an injured
employee who is temporarily unable to perform his or her job, but
may perform alternative work offered by the employer;
47. 49. “Time of accident” or “date of accident” means the time
or date of the occurrence of the accidental incident from which
compensable injury, disability, or death results; and
48. 50. “Wages” means money compensation received for
employment at the time of the accident, including the reasonable
value of board, rent, housing, lodging, or s imilar advantage
received from the employer and includes the amount of tips required
to be reported by the employer under Section 6053 of the Internal
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Revenue Code and the regulations promulgated pursuant thereto or th e
amount of actual tips reported, whic hever amount is greater.
SECTION 2. AMENDATORY 85A O.S. 2021, Section 3, is
amended to read as follows:
Section 3. A. Every employer and every employee, unless
otherwise specifically provide d in this act the Administrative
Workers’ Compensation Act, shall be subject and bo und to the
provisions of the Administr ative Workers’ Compensation Act and ev ery
employer shall pay or prov ide benefits according to the provisions
of this act for the accidental compensable injury or death of an
employee arising out of and in the course of his or her employment,
without regard to fault for such injury, if the empl oyee’s contract
of employment was made or if the inj ury occurred within this state.
If an employee makes a claim for an injury in another jurisdicti on,
the employee is precluded f rom his or her right of action under t he
Administrative Workers ’ Compensation Act unless the Oklahoma
Workers’ Compensation Commission de termines that there is a change
in circumstances that creates a good cause to bring the claim und er
the Administrative Workers ’ Compensation Act; provided, however,
that the employee may not rece ive duplicate benefits to those
received in the foreign juris diction and the employee ’s right to
bring a claim under this act shall be subject to the limitati ons
period for bringing a claim pursuant to paragraph 1 of subsection A
of Section 69 of this titl e. Nothing in this act the Administrative
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Workers’ Compensation Act shall be construed to conflict with any
valid Act of Congress governing the liability of employers for
injuries received by their empl oyees.
B. The State of Oklahom a accepts the provisions of the Acts of
Congress designated as 40 U.S.C., Section 3172, formerly 40 U.S.C. ,
Section 290, and hereby extends the territorial jurisdiction of the
Administrative Workers ’ Compensation Act of this state to all lands
and premises within the exterior boundaries of this state which the
Government of the United States of America owns or holds by deed or
act of cession, and to all purchases, projects, buildings,
constructions, improvements and property w ithin the exterior
boundaries of this state belonging to the Government of the United
States of America, in the same manner and to the sa me extent as if
the premises were under the exclusive jurisdiction of this state,
subject only to the limitations place d thereon by the Acts of
Congress.
C. The Administrative Workers’ Compensation Act shall apply
only to claims for injuries and death based on accidents which occur
on or after February 1, 2014.
D. The Workers’ Compensation Code in effect before February 1,
2014, shall govern all right s in respect to claims for injuries and
death based on accidents occurring before February 1, 2014.
SECTION 3. AMENDATORY 85A O.S. 2021, Section 5, is
amended to read as follows:
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Section 5. A. The rights and remedies granted to an employee
subject to the provisions of the Administrative Workers ’
Compensation Act shall be exclusive o f all other rights and remedies
of the employee, his legal representative, dependents, next of kin,
or anyone else claiming rights to recovery on beha lf of the employee
against the employer, or any principal, officer, director, employee,
stockholder, partner, or prime contractor of the employer on account
of injury, illness, or death. Negligent acts of a co -employee may
not be imputed to the employer. No role, capacity, or persona of
any employer, principal, officer, director, employee, or stockholder
other than that existing in the role of employer of the employee
shall be relevant for consideration for purposes of this act the
Administrative Workers ’ Compensation Act, and the remedies and
rights provided by this act the Administrative Workers ’ Compensation
Act shall be exclusive regardless of the multiple roles, capacities,
or personas the employer may be deemed t o have.
B. Exclusive remedy shall not apply if:
1. An employer fails to secure the payment of compensation due
to the employee as required by this act the Administrative Workers ’
Compensation Act. An injured employee, or his or her legal
representative in case death results f rom the injury, may, a t his or
her option, elect to claim compensation under this act the
Administrative Workers ’ Compensation Act or to maintain a legal
action in court for damages on account of the injury or death; or
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2. The injury was caused by an intentional tort act committed
by the employer. An intentional tort act shall exist only when the
employee is injured as a result of will ful, deliberate, specific
intent of the employer to cause suc h injury. Allegations or proof
that the employer had knowledge that the injury was substa ntially
certain to result from the employer’s conduct shall not constitute
an intentional tort. The empl oyee shall plead facts that sh ow it is
at least as likely as it is not that the employer acted with the
purpose of injuring the employee an employer who owns at least ten
percent (10%) of the business engages in or specifically directs the
act that is the proximate cause of the injury to the employee. An
employee or owner of less than ten percent (10%) of the business
shall not be released from liability pursua nt to this section if he
or she engaged in an intentional act that was the proximate cause of
the injury or death. The issue of whether an act is an intentional
tort shall be a question of law.
C. The immunity from civil liability described in subsection A
of this section shall apply regardless of whether the injured
employee is denied compensation or deemed ineligible to receiv e
compensation under this act the Administrative Workers ’ Compensation
Act.
D. If an employer has failed to secure the payment o f
compensation for his or her injured employee as pro vided for in this
act the Administrative Wor kers’ Compensation Act, an injured
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employee, or his or her legal representative if death results from
the injury, may maintain an action in the distric t court for damages
on account of such injury.
E. The immunity created by the provisions of this section shall
not extend to action against another employer, or its employees, on
the same job as the injured or deceased worke r where such other
employer does not stand in the position of an intermediate or
principal employer to the immediate employer of the inj ured or
deceased worker.
F. The immunity created by the provisions of this section shall
not extend to action against a nother employer, or its employe es, on
the same job as the injured or deceased worker even though such
other employer may be considered a s standing in the position of a
special master of a loaned servant where such special master neither
is the immediate employer of the injured or deceas ed worker nor
stands in the position of an intermediate or principal employer to
the immediate employer o f the injured or deceased worker.
G. This section shall not be construed to abrogate the loaned
servant doctrine in any respect other than that descri bed in
subsection F of this section. Nothing in this act the
Administrative Workers ’ Compensation Act shall be construed to
relieve the employer from any other penalty provided for in this act
the Administrative Workers ’ Compensation Act for failure to secure
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the payment of compensation under this act the Administrative
Workers’ Compensation Act.
H. For the purpose of extending the immu nity of this section,
any architect, professional engineer, or land surveyor shall be
deemed an intermedia te or principal employer for services performed
at or on the site of a construction project, but this immunity shall
not extend to the negligent prepa ration of design plans and
specifications.
I. If the employer has failed to secure the payment of
compensation as provided in this act the Administrative Workers ’
Compensation Act or in the case of an intentional tort act, the
injured employee or his or her legal represent ative may maintain an
action either before the Commission or in the district court, but
not both.
SECTION 4. AMENDATORY 85A O.S. 2021 , Section 13, is
amended to read as follows:
Section 13. A. 1. A mental injury or illness is n ot a
compensable injury unless caused by a physical injury to the
employee, and shall not be considered an inju ry arising out of and
in the course and scope of employment or compensable unless
demonstrated by a preponderance of the evidence; provided, howe ver,
that this physical injury limitation shall not apply to any victim
of a crime of violence .
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2. No mental injury or illness under this section shall be
compensable unless it is also diagnosed by a license d psychiatrist
or psychologist and unless the dia gnosis of the condition meets the
criteria established in the most current issue of the Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).
B. 1. Notwithstanding any other provisi on of this act the
Administrative Workers ’ Compensation Act, where a claim is for
mental injury or illness, the employee sha ll be limited to twenty -
six (26) weeks of disability benefits unless it is shown by clear
and convincing evidence that benefits should continue for a set
period of time, not to exceed a total of fifty -two (52) weeks.
2. a. In cases where death results direc tly from the mental
injury or illness within a period of one (1) year,
compensation shall be paid the d ependents as provided
in other death cases under this act the Administrative
Workers’ Compensation Act.
b. Death directly or indirectly related to the mental
injury or illness occurring one (1) year or more from
the incident resulting in the mental injury or illness
shall not be a compensable injury.
SECTION 5. AMENDATORY 85A O.S. 2021, Section 30, is
amended to read as follows:
Section 30. A. For the purposes o f Sections 31 through 35 of
this title, the term “physically impaired person ” means a person
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who, as a result of accident, disease, birth, military action, or
any other cause, has suffered:
1. The loss of the sight of one eye;
2. The loss by amputation o f the whole or a part of a member of
the body, or loss of use of more than thirty-five percent (35%) of a
member of the body proven by objective medical evidence; or
3. Any previous adjudications of compensable permanent partial
disability adjudged and de termined by the Workers’ Compensation
Court, the Workers’ Compensation Court of Existing Claims o r the
Oklahoma Workers’ Compensation Commission.
B. This section shall apply to all adjudications of Multiple
Injury Trust Fund claims in which the last injur y occurred on or
after July 1, 2019.
SECTION 6. AMENDATORY 85A O.S. 202 1, Section 32, is
amended to read as follows:
Section 32. A. If an employee who is a “physically impaired
person” receives an accidental personal injury comp ensable under the
Administrative Workers ’ Compensation Act which results in additional
permanent disability so that the degree of disability caused by the
combination of both disabilities results in disability materially
greater than that which would have resulted from the subsequent
injury alone, the employee may proceed against the Multiple Injury
Trust Fund for permanent total disability. Only disability due to
an injury to the body as a whole at a subsequent employer shall be
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combinable with a prior bo dy disability, except that disability to a
member may be combined with disability to the body as a whole. If
such combined disabilities constitute permanent total disability, as
defined in Section 2 of this title, the employee shall receive full
compensation as provided by law for the disability resulting
directly and specifically from the subsequent injury. In addition,
the employee shall receive c ompensation for permanent total
disability if the combination of injuries renders the employee
permanently and totally disabled. The employer shall be liable only
for the degree of percent of disability w hich would have resulted
from the subsequent injury if there had been no preexisting
impairment. The compensation rate for permanent total disability
awards from the Multiple Injury Trust Fund shall be the compensation
rate for permanent partial disabilit y paid by the employer in the
last combinable compe nsable injury.
B. Permanent total disability awards from the Multiple Injury
Trust Fund shall be payable in periodic installments for a period of
eight (8) years or until the employee reaches sixty -five (65) years
of age, whichever period is longer.
C. Permanent total disability awards from the Multiple Injury
Trust Fund shall accrue from the file date of the order of the
Oklahoma Workers’ Compensation Commission finding the claimant to be
permanently and totally disabled.
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D. Before a physically impaired person c an proceed against the
Multiple Injury Trust Fund, the previously adjudicated compensable
permanent partial disability adjudged and determined by the Workers ’
Compensation Court, the Workers ’ Compensation Court of Exis ting
Claims or the Oklahoma Workers’ Compensation Commission and the
permanent partial disability from the last injury must exceed fifty
percent (50%) to the body as a whole. However, amputations and loss
of use of a scheduled member qualifying as previous impairm ent under
paragraph 2 of subsection A of Section 30 of this title shall be
considered in lieu of previously adjudicated compensa ble permanent
partial disability.
E. Awards under this section shall abate upon the death, from
any cause, of the employee.
F. Reopening any prior claim other than the last injury claim
against the employer shall not give a claimant the right to
additional Multiple Injury Trust Fund benefits.
G. The Multiple Injury Trust Fund shall have authority t o
compromise a claim for less t han the indicated amount of permanent
total disability. Orders shall be paid in periodic installments
beginning on the date of the award, unless commuted to a lump -sum
payment or payments, by agreement of the claimant and th e Multiple
Injury Trust Fund. All offers made by the Multiple Injury Trust
Fund pursuant to this section shall be conveyed by the claimant ’s
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attorney to the claimant within five (5) days of receipt of the
offer.
H. If an order is entered finding an emplo yee to be permanently
totally disabled as a result of combined disabi lity, and such order
is the result of a compromised settlement, the employee is
thereafter prohibited from making an additional claim against the
Multiple Injury Trust Fund. An attorney for a claimant against the
Multiple Injury Trust Fund shall be entitl ed to a fee equal to
twenty percent (20%) of permanent disability benefits awarded. The
attorney fee shall be paid in periodic installments by the attorney
receiving every fifth check. All benefits awarded to the att orney
shall be vested at the time the award becomes final.
I. In the event a claimant receiving benefits for permanent and
total disability from the Multiple Injury Trust Fund dies as a
result of his or her injury before the award has been fully paid,
payments shall continue to the surviving spouse for five (5) years
or upon remarriage, whichever occurs first. In no event shall
payments to the surviving spouse extend beyond the period of
benefits awarded to the claimant.
SECTION 7. AMENDATORY 85A O.S. 2021, Section 3 5, is
amended to read as follows:
Section 35. A. 1. Every employer shall secu re compensation as
provided under this act the Administrative Workers ’ Compensation Act
to its employees for compensable injuries without rega rd to fault.
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2. There shall be no liability for compe nsation under this act
the Administrative Workers ’ Compensation Act where the injury or
death was substantially occasion ed by the willful intention as a
result of an intentional act of the injured employee to bring about
such compensable injury or death.
B. The primary obligation to pay compensation is on the
employer, and the procurement of a policy of insurance by an
employer to cover the obligation in respect to this act the
Administrative Workers ’ Compensation Act shall not relieve the
employer of the obligation.
SECTION 8. AMENDATORY 85A O.S. 2 021, Section 40, is
amended to read as follow s:
Section 40. A. 1. Any employer who fails to secure
compensation required under the Administrative Workers ’ Compensation
Act, upon conviction, shall be guilty of a misdemeanor and subjec t
to a fine of up to Ten Thousand Dollars ($10,000.00) to be deposited
in the Workers’ Compensation Commission Revolving Fund.
2. This subsection shall not affect any other liability of the
employer under the Administrative Workers ’ Compensation Act.
B. 1. Whenever the Oklahoma Workers’ Compensation Commission
has reason to believe that any employer required to secure the
payment of compensati on under the Administrative Workers ’
Compensation Act has failed to do so, the Commission shall serve on
the employer a propos ed judgment declaring the employer to be in
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violation of the Administrative Workers’ Compensation Act and
containing the amount, i f any, of the civil penalty to be assessed
against the employer under pa ragraph 5 of this subsection.
2. a. An employer may contest a proposed judgment of the
Commission issued under paragraph 1 of this subsection
by filing with the Commission, within twen ty (20) days
of receipt of the proposed judgment, a written request
for a hearing.
b. The request for a hearing does not need to be in any
particular form but shall specify the grounds on which
the person contests the proposed jud gment, the
proposed assessment, or both.
c. If a written request for hearing is not filed with the
Commission within the time specified in subp aragraph a
of this paragraph, the proposed judgment, the proposed
penalty or both, shall be a final judgment of the
Commission and shall not be subject to further review
by any court, except if the employer sho ws good cause
why it did not timely contest t he judgment or penalty
and terms of the proposed judgment shall be reflected
in an order signed by an administrati ve law judge of
the Commission.
d. A proposed judgment by the Commis sion under this
section shall be prima facie correct, and the burden
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is on the employer to prove that the proposed judgment
is incorrect If the employer objects to the proposed
judgment and requests a hearing, the Commission shall
prove by a preponderance of evidence each and every
allegation of law and fact contained in the proposed
judgment. The administrative law judge shall make
specific findings of fact and law.
3. a. If the employer alleges that a carrier has contracte d
to provide it workers’ compensation insurance coverage
for the period in question, the employer shall include
the allegation in its request for hearing and shall
name the carrier.
b. The Commission shall promp tly notify the carrier of
the employer’s allegation and of the date of hearing.
c. The carrier shall promptly, and no later than five (5)
days before the hear ing, respond in writing to the
employer’s allegation by providing evidence of
coverage for the per iod in question or by
affirmatively denying t he employer’s allegation.
4. Hearings under this sectio n shall be procedurally conducted
as provided in Sections 69 through 78 of this title.
5. The Commission may assess a fine against an employer who
fails to secure the payment of compensation in an am ount up to One
Thousand Dollars ($1,000.00) per day of violation payable to the
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Workers’ Compensation Commission Revolving Fund, not to exceed a
total of Fifty Thousand Dollars ($50,000.00) for the first
violation.
6. If an employer fails to secure the pa yment of compensation
or pay any civil penalty assesse d against the employ er after a
judgment issued under this s ection has become final by operation of
law or on appeal, the Commission may petition the Oklahoma County
District Court or the district court of the county where the
employer’s principal place of business is located for an order
enjoining the employer fro m engaging in further employment until
such time as the employer secures the payment of compensati on or
makes full payment of all civil penalti es.
7. Upon any penalty becoming final under this se ction, the
Commission may institute collection proceedings a gainst any assets
of the employer independently or in district court including, but
not limited to, an asset hearing, garnishment of income and wages,
judgment lien or an intercept of an income ta x refund consistent
with Section 205.2 of Title 68 of the O klahoma Statutes. The
collection proceedings shall be f iled in the county in which the
principal office of the employer is located. The clerk of the
Commission shall have the auth ority to certify a final order in
which a penalty has been assessed. Such certification shall be
necessary to invoke the jurisdictio n of the district court.
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8. Information subject to subsection A or B of Section 4 -508 of
Title 40 of the Oklahoma Statutes may be disclosed to the em ployees
of the Commission for purposes of investigati on and enforcement of
workers’ compensation coverage requirements pursuant to this tit le,
and such information shall be admissible in any hearing before an
administrative law judge of the Commission.
9. Litigation files and investigatory reports of the Commission
arising from enforcement of the provisions of this section shall be
confidential pursuant to Section 24A.12 of Title 51 of the Oklahoma
Statutes.
SECTION 9. AMENDATORY 85A O.S. 2021, Section 45, is
amended to read as follows:
Section 45. A. Temporary Total Disability.
1. If the injured employee is t emporarily unable to perform his
or her job or any alternative work offered by the employer, he or
she shall be entitled to receive compensation equal to seventy
percent (70%) of the injured employee’s average weekly wage, but not
to exceed the state avera ge weekly wage, for one hundred fifty-six
(156) weeks. Provided, there shall be no payment for the first
three (3) days of the initial period o f temporary total disability.
If an administrative law judge finds that a consequ ential injury has
occurred and that additional time is needed to reach maximum medical
improvement, temporary total disability may continue for a period of
not more than an additional fifty-two (52) weeks. Suc h finding
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shall be based upon a showing of med ical necessity by clear and
convincing evidence. An employer shall have the right to recover
any overpayment of temporary total disability payments from a
subsequent permanent partial disability award if the o ffset is
deemed justified by the Oklahoma Workers’ Compensation Commission.
2. When the injured employee is released from active medical
treatment by the treating physician for all body parts found by the
Commission to be injure d, or in the event that the employee, without
a valid excuse, misses three consecu tive medical treatment
appointments, fails to comply with medical orders of the treating
physician, or otherwise abandons medical care, the employer shall be
entitled to terminate temporary total disab ility by notifying the
employee, or if represented, his or her counsel. If, however, an
objection to the termination is filed by the employee within ten
(10) days of termination, the Commission shall set the matter within
twenty (20) days for a determinat ion if temporary total disability
compensation shall be reinstated. The temporary to tal disability
shall remain terminated until such time as the employee complies
with medical orders of the treating physician. Notwithstanding the
provisions of this para graph, benefits under this subsection shall
be permanently terminated by order of the Commission if the employee
is noncompliant or abandons treatment for sixty (60) days, or if
benefits under this subsection have been suspended under this
paragraph at least two times. The administrative law judge may
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appoint an independent medical examin er to determine if further
medical treatment is reasonable and necessary. The independent
medical examiner shall not provide treatment to the i njured worker,
unless agreed upon by the parties.
B. Temporary Partial Disability .
1. If the injured employee is temporarily unable to perform his
or her job, but may perform alternative work offered by the
employer, he or she shall be entitled to receiv e compensation equal
to seventy percent (70%) of the difference between the injure d
employee’s average weekly wage before the injury and his or her
weekly wage for performing alternative work after the injury, but
only if his or her weekly wage for perform ing the alternative work
is less than the temporary total disability rate. The in jured
employee’s actual earnings plus temporary partial disability
compensation shall not exceed the temporary total disability rate.
2. Compensation under this subsection m ay not exceed fifty-two
(52) weeks.
3. If the employee refuses to perform the alt ernative work
offered by the employee, he or she shall not be entitled to benefits
under subsection A of this section or under this section.
C. Permanent Partial Disability.
1. A permanent partial di sability award or combination of
awards granted an inju red worker may not exceed a pe rmanent partial
disability rating of one hundred percent (100%) to any body part or
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to the body as a whole. The determination of permanent part ial
disability shall be the responsibility of the Commission through its
administrative law judges. Any claim b y an employee for
compensation for permanent partial disability must be supported by
competent medical testimony of a medical doctor, osteopathi c
physician, or chiropracto r, and shall be supported by objective
medical findings, as defined in this act the Administrative Workers’
Compensation Act. The opinion of the physician shall include
employee’s percentage of permanent partial disability and whether or
not the disability is job-related and caused by the accidental
injury or occupational disease . A physician’s opinion of the nature
and extent of permanent partial disability to parts of the body
other than scheduled members must be based solely on criteria
established by the Sixth Edition of the American Medical
Association’s “Guides to the Evaluation of Permanent Im pairment”. A
copy of any written evaluation shall be sent to both parties within
seven (7) days of issuance. Medical opinions addressing
compensability and p ermanent disability must be stated within a
reasonable degree of medical cer tainty. Any party ma y submit the
report of an evaluat ing physician.
2. Permanent partial disability shall not be allowed to a part
of the body for which no medical treatment has been received. A
determination of permanent partial disability made by the Commission
or administrative law judge which is not su pported by objective
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medical findings provided by a treating physician who is a medical
doctor, doctor of osteopathy, chiropra ctor or a qualified
independent medical examiner shall be considered an abus e of
discretion.
3. The examining physician shall not deviate from the Guides
except as may be specifically provided for in the Guides.
4. In cases of permanent partial disabilit y, the compensation
shall be seventy percent (70%) of the employee ’s average weekly
wage, not to exceed Three Hundred Fifty Dollar s ($350.00) per week
which shall increase to Three Hundred Sixty Dollars ($360.00) per
week on July 1, 2021 ,. Beginning on or after January 1, 2024,
compensation for permanent partial disabi lity shall be seventy
percent (70%) of the employee’s average weekly wage, not to exceed an
amount equal to forty percent (40%) of the state ’s average weekly
wage, rounded to the nearest doll ar. Rates are to be subsequently
adjusted January 1, annually for injuries occurring on or a fter the
date of the adjustmen t. Rates shall be established for each claim
based upon the date of injury for a term not to exceed a total of
three hundred sixty ( 360) weeks for the body as a whole.
5. Assessments pursuant to Sections 3 1, 98 and 122 of this
title shall be calculated based upon the amount of the permanent
partial disability award.
6. Previous Disability: The fact that an employee has suffered
previous disability or received compensation therefor shall not
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preclude the employee from compensati on for a later accidental
personal injury or occupational disease. In the event there exists
a previous permanent partial disability, including a previous non -
work-related injury or condition which produced permanent partial
disability and the same is agg ravated or accelerated by an
accidental personal injury or occupational disease, compensation for
permanent partial disability shall be only for such amount as was
caused by such accidental personal injury or occupational disease
and no additional compensa tion shall be allowed for the p reexisting
disability or impairment. Any such reduction shall not apply to
temporary total disability, nor shall it apply to co mpensation for
medical treatment. If workers ’ compensation benefits have
previously been awarded through settlement or judicial or
administrative determination in Oklahoma, the percentage basis of
the prior settlement or award shall conclusively establish the
amount of permanent partial disability determined to be preexisting.
If workers’ compensation benefits have not previously been awarded
through settlement or judicial or administrative determination in
Oklahoma, the amount of preexisting permanent pa rtial disability
shall be established by competent evidence and determined by the
Commission.
7. No payments on any permanent p artial disability order shall
begin until payments on any preexisting permanent partial disability
orders have been completed.
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8. The whole body shall represent a maximum of three hundred
sixty (360) weeks.
9. The permanent partial disability rate of com pensation for
amputation or permanent total loss of use of a scheduled member
specified in Section 46 of this title shall be sev enty percent (70%)
of the employee’s average weekly wage, not to exceed Th ree Hundred
Fifty Dollars ($350.00), with an increase to Three Hundred Sixty
Dollars ($360.00) on July 1, 2021,. Beginning on or after January 1,
2024, compensation for permanent pa rtial disability shall be seventy
percent (70%) of the employee’s average weekly wage, not to exceed an
amount equal to forty pe rcent (40%) of the state’s average weekly
wage, rounded to the nearest dollar. Rates are to be subsequently
adjusted January 1, annually for injuries occurring on or after the
date of the adjustment. Rates shall be established for each claim
based upon the date of injury and multiplied by the number of weeks
set forth for the member in Section 46 of this title, regardless of
whether the injured employee is able to return to his or her pre -
injury or equivalent job.
10. An injured employee who is eligible for p ermanent partial
disability under this subsection shall be entitled to receive
vocational rehabilitation services provided by a technology center
or public secondary school offering vocational -technical education
courses, or a member institution of The Okl ahoma State System of
Higher Education, which shall include retraining and job placement
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to restore the employee to gainful employment. Vocational
rehabilitation services or training shall not extend f or a period of
more than fifty-two (52) weeks.
D. Permanent Total Disability.
1. In case of total disability adjudged to be permanent,
seventy percent (70%) of the employee ’s average weekly wages, but
not in excess of the state ’s average weekly wage, sha ll be paid to
the employee during the continuance of t he disability until such
time as the employee reaches the age of maximum Social Security
retirement benefits or for a perio d of fifteen (15) years, whichever
is longer. In the event the claimant dies o f causes unrelated to
the injury or illness, benefits shall cease on the date of death.
Provided, however, any person entitled to revive the action shall
receive a one-time lump-sum payment equal to twenty-six (26) weeks
of weekly benefits for permanent t otal disability awarded the
claimant. If more than on e person is entitled to revive the claim,
the lump-sum payment shall be evenly divided between or among such
persons. In the event the Commission awards both permanent partial
disability and permanent total disability benefits, the permanent
total disability award shall not be due until the permanent partial
disability award is paid in full. If otherwise qualified according
to the provisions of this act the Administrative Workers ’
Compensation Act, permanent total disab ility benefits may be award ed
to an employee who ha s exhausted the maximum period of temporary
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total disability even though the employee has not reached maximu m
medical improvement.
2. The Oklahoma Workers’ Compensation Commission shall annually
review the status of any employee receiving b enefits for permanent
total disability against the las t employer. The Commission shall
require the employee to annually fi le an affidavit under penalty of
perjury stating that he or she is not and has not been gainfully
employed and is not capable of gain ful employment. Failure to file
such affidavit shall result in suspension of benefits; provided,
however, reinstatement of benefits may occur after proper hearing
before the Commission.
E. 1. The Oklahoma Workers’ Compensation Commission may hire
or contract for a Vocational Rehabilita tion Director to oversee the
vocational rehabilitation program of the Commission.
2. Upon the request of either party, an administrative law
judge shall determine if it is appropriate fo r a claimant to receive
vocational rehabilita tion training or service s. If appropriate, the
administrative law judge shall refer the employee to a qualified
expert for evaluation of the practicability of, need for and kind of
rehabilitation services or tr aining necessary and appropriate in
order to restore the employee to gainful employment. The cost of
the evaluation shall be paid by the employer.
3. Upon receipt of such report, and after affording all parties
an opportunity to be heard, the administrat ive law judge shall order
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that any rehabilitation services or trainin g, recommended in the
report, or such other rehabilitation services or training as the
administrative law judge may deem necessary, provided the employee
elects to receive such services, shall be provided at the expense of
the employer. Except as otherwis e provided in this subsection,
refusal to accept rehabilitation services by the employee s hall in
no way diminish any benefits allowable to an employee.
4. The administrative law judge m ay order vocational
rehabilitation before the injured employee reache s maximum medical
improvement, if the treating physician believes that it is likely
that the employee’s injury will prevent the employee from returning
to his or her former employment. I n granting early benefits for
vocational rehabilitation, the Commissi on shall consider temporary
restrictions and the likelihood that such rehabilitation will return
the employee to gainful employment earlier than if such benefits are
granted after the per manent partial disability hearing in the clai m.
5. Vocational rehabi litation services or training shall not
extend for a period of more than fifty-two (52) weeks. A request
for vocational rehabilitation services or training shall be filed
with the Commission by an interested party not later than si xty (60)
days from the date of receiving permanent dis ability that prevents
the injured employee from returning to his or her pre-injury or
equivalent position.
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6. If rehabilitation requires residence at or nea r the facility
or institution which is away f rom the employee’s customary
residence, reasonable cos t of the employee’s board, lodging, travel,
tuition, books and necessary equipment in training shall be paid for
by the insurer in addition to weekly compens ation benefits to which
the employee is other wise entitled under the Administrative Workers ’
Compensation Act.
7. During the period when an employee is active ly and in good
faith being evaluated or participating in a retraining or job
placement program fo r purposes of evaluating permanent total
disability status, the emplo yee shall be entitled to recei ve
benefits at the same rate as the employee’s temporary total
disability benefits for an additional fifty -two (52) weeks. All
tuition related to vocational rehabilitation services shall be paid
by the employer or the employe r’s insurer on a periodic basi s
directly to the facility providing the vocational rehabili tation
services or training to the employee.
F. Disfigurement.
1. If an injured employee incurs serious and permanent
disfigurement to any p art of the body, the Com mission may award
compensation to the injured employee in an amount not to exceed
Fifty Thousand Dollars ($50,000.00).
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2. No award for disfigurement shall be entered until twelve
(12) months after the injury unless the treating phy sician deems the
wound or incision to be fully healed.
3. An injured employee shall not be entitled to compensati on
under this subsection if he or she receives an award for permanent
partial disability to the s ame part of the body.
G. Benefits for a sing le-event injury shall be determined by
the law in effect at the time of injury. Benefits for a cumulative
trauma injury or occupational disease or illness shall be determined
by the law in effect at the time th e employee knew or reasonably
should have known that the injury, occu pational disease or illness
was related to work activity. Benefits for death shall be
determined by the law in effect at the time of death.
SECTION 10. AMENDATORY 85A O.S. 2021, Section 46, is
amended to read as follows:
Section 46. A. An injured employee wh o is entitled to receive
permanent partial disability compen sation under Section 45 of this
title shall receive compensation for each part of the body in
accordance with the number of weeks for the sche duled loss set forth
below.
1. Arm amputated at the e lbow, or between the elbow and
shoulder, two hundred seventy -five (275) weeks;
2. Arm amputated between the elbow and wrist, two hundred
twenty (220) weeks;
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3. Leg amputated at the knee, or between th e knee and the hip,
two hundred seventy-five (275) weeks;
4. Leg amputated between the knee and the ankle, two hu ndred
twenty (220) weeks;
5. Hand amputated, two hundred twenty (220) weeks;
6. Thumb amputated, sixty-six (66) weeks;
7. First finger ampu tated, thirty-nine (39) weeks;
8. Second finger amput ated, thirty-three (33) weeks;
9. Third finger amputated, t wenty-two (22) weeks;
10. Fourth finger amputated, seventeen (17) weeks;
11. Foot amputated, tw o hundred twenty (220) weeks;
12. Great toe amputated, thirty-three (33) weeks;
13. Toe other than great toe amputated, eleven (11) weeks;
14. Eye enucleated, in which there was useful vision, two
hundred seventy-five (275) weeks;
15. Loss of hearing o f one ear, one hundred ten (110) weeks;
16. Loss of hearing of both ears, three hundred thirty (33 0)
weeks; and
17. Loss of one testicle, fifty -three (53) weeks; loss of both
testicles, one hundred fifty -eight (158) weeks.
B. The permanent partial disab ility rate of compensation for
amputation or permanent total loss of use of a scheduled member
specified in this section shall be seventy percent (70%) of the
employee’s average weekly wage, not to exceed Three Hundred Fifty
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Dollars ($350.00) with an incre ase to Three Hundred Sixty Dollars
($360.00) on July 1, 2021,. Beginning on or after January 1, 2024,
compensation for permanent partial disability shall be s eventy
percent (70%) of the employee’s average weekly wage, not to exceed
an amount equal to fort y percent (40%) of the state ’s average weekly
wage, rounded to the nearest dollar. Rates are to be subsequently
adjusted January 1, annually for injuries occu rring on or after the
date of the adjustment. Rates shall be established for each claim
based upon the date of injury and multiplied by the number of weeks
as set forth in this section, regardless of whether or not the
injured employee is able to return t o his or her pre-injury job.
C. Other cases: In cases in which the Oklahoma Workers’
Compensation Commission finds an injury to a part of the body not
specifically covered by the fore going provisions of this secti on,
the employee may be entitled to compe nsation for permanent part ial
disability. The compensation ordered paid shall be seventy percent
(70%) of the employee ’s average weekly wage, not to exceed Thr ee
Hundred Fifty Dollars ($350.00) with an increase to Three Hundred
Sixty Dollars ($360.00) on July 1, 2021,. Beginning January 1,
2024, an amount equal to forty percent (40%) of the state ’s average
weekly wage, rounded to the nearest whole dollar. Rate s are to be
subsequently adjusted January 1, annually, for injuries occurring on
or after the date of the adjustment for the number of weeks which
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the partial disability of the employee bears t o three hundred fifty
(350) three hundred sixty (360) weeks.
D. 1. Compensation for amputat ion of the first phalang e of a
digit shall be one-half (1/2) of the compensation for the amputati on
of the entire digit.
2. Compensation for amputation of more th an one phalange of a
digit shall be the same as for amputation of th e entire digit.
E. 1. Compensation for the perm anent loss of eighty percent
(80%) or more of the vision of an eye shall be the same as for the
loss of an eye.
2. In all cases of permane nt loss of vision, the use of
corrective lenses may be taken into co nsideration in evaluating the
extent of loss of vision.
F. Compensation for amputation or loss of use of two or more
digits or one or more phalanges of two or more digits of a hand or a
foot may be proportioned to the total loss of use of the hand or the
foot occasioned thereby b ut shall not exceed the compen sation for
total loss of a hand or a foot.
G. Compensation for per manent total loss of use of a member
shall be the same as for ampu tation of the member.
H. The sum of all permanent partial disabilit y awards,
excluding awards against the Multiple Injury Trust Fund, shall not
exceed three hundred fifty (350) three hundred sixty (360) weeks.
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SECTION 11. AMENDATORY 85A O.S. 2021, Section 47, is
amended to read as follows:
Section 47. A. Time of death. If death does not result within
one (1) year from the date of the accident or within the first t hree
(3) years of the period for compensation payments fixed by th e
compensation judgment, a rebuttable presumption shall arise that t he
death did not result f rom the injury.
B. Common law spouse. A common law spouse shall not be
entitled to benefits und er this section unless he or she obtains an
order from the Oklahoma Workers’ Compensation Commission ruling that
a common law marriage existed between the decedent and the surviving
spouse. The ruling by the Commission shall be exclusive in regard
to benefits under this section regardless of any district court
decision regarding the probate of the decedent ’s estate.
C. Beneficiaries - Amounts. If an injury or occupati onal
illness causes death, weekly income benefits shall be payable as
follows:
1. If there is a surviving spouse, a lump -sum payment of One
Hundred Thousand Dollars ($100,000.00) and seventy percent (70%) of
the lesser of the dece ased employee’s average weekly wage and the
state average weekly wage. In addition to the benefits theretofore
paid or due, two (2) years ’ indemnity benefit in one lump sum shall
be payable to a surviving spouse upon remarriage;
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2. If there is a survivin g spouse and a child or c hildren, a
lump-sum payment of Twenty-five Thousand Dollars ($25,000.00) and
fifteen percent (15%) of the lesser of the deceased employee ’s
average weekly wage and the state average weekly wage to each child.
If there are more tha n two children, each chil d shall receive a pro
rata share of Fifty Thousand Dollars ($50,000.00) and thirty perce nt
(30%) of the deceased employee ’s average weekly wage;
3. If there is a child or children and no surviving spouse, a
lump-sum payment of Twenty-five Thousand Dollars ($25,000.00) and
fifty percent (50%) of the lesser of the deceased employee’s average
weekly wage and the state average weekly wage to each child. If
there are more than two children, each child shall receive a pro
rata share of one hundred percent (100% ) of the lesser of the
deceased employee’s average weekly wage and the state average wee kly
wage. With respect to the lump -sum payment, if there are more than
six children, each child shall receive a pro rata share of One
Hundred Fifty Thousand Dollars ($ 150,000.00);
4. If there is no surviving spouse or children, each legal
guardian, if financially dependent on the employee at the time of
death, shall receive twenty-five percent (25%) of the lesser of the
deceased employee’s average weekly wage and the s tate average weekly
wage until the earlier of death, becoming eligible for Social
Security, obtaining full-time employment, or five (5) years from the
date benefits under this section begin If there is no surviving
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spouse or children, Five Thousand Dollars ($5,000.00) shall be paid
to the parents and shall be divided to share and share alike;
5. If there is no surviving spouse, children , or parents, to
the brothers, sisters, grandparents, and grandchildren shall be paid
Five Thousand Dollars ($5,000.00). If there should be more than one
of such dependents, the total benefits payable for the benefit of
such dependents shall be divided to share and share ali ke;
6. If there is no surviving spouse, children, parents,
brothers, sisters, grandparents, or grandchildren, to each legal
guardian, if financially dependent on the employee at the time of
death and upon proof of pecuniary loss shall receive an amount no t
to exceed Five Thousand Dollars ($5 ,000.00); and
5. 7. The employer shall pay the actual funeral expen ses, not
exceeding the sum of Ten Thousand Dollars ($10,000.00).
D. The weekly income benefits payable to the surviving spouse
under this section shal l continue while the surviving spouse remains
unmarried. In no event shall this spousal weekly income be nefit be
diminished by the awa rd to other beneficiaries. The weekly income
benefits payable to any child under this section shall terminate on
the earlier of death, marriage, or reaching the age of eighteen
(18). However, if the child turns eighteen (18) and is:
1. Enrolled as a ful l-time student in high school or is being
schooled by other means pursuant to the Oklahoma Constitution;
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2. Enrolled as a full-time student in any accredited
institution of higher education or vocatio nal or technology
education; or
3. Physically or menta lly incapable of self-support,
then he or she may co ntinue to receive weekly income benefits under
this section until the earlier of reaching the age of twenty -three
(23) or, with respect to paragraphs 1 and 2 of this subsecti on, no
longer being enrolled a s a student, and with respect to paragraph 3
of this subsection, becoming capable of self -support.
E. If any member of t he class of beneficiaries who receive a
pro rata share of weekly income benefits becomes ineligible to
continue to receive benefits, th e remaining members of the class
shall receive adjusted weekly income benefits equal to the new class
size.
F. To receive benefits under this section, a beneficiary or his
or her guardian, if applicab le, shall file a proof of loss form with
the Commission. All questions of dependency shall be determined a s
of the time of the injury. The employer shall initiate payment of
benefits within fifteen (15) days of the Commission ’s determination
of the proper beneficiaries. The Com mission shall appoint a
guardian ad litem to represent known and unknown minor chi ldren and
the guardian ad litem shall be paid a reasonable fee for hi s or her
services.
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SECTION 12. AMENDATORY 85A O.S. 2021 , Section 50, is
amended to read as follows:
Section 50. A. The employer shall promptly provide an injured
employee with medical, surgical, hospital, optometric, podiatric,
chiropractic and nursing services, along with any medicine,
crutches, ambulatory devices, artificial limbs , eyeglasses, contact
lenses, hearing aids, and other apparatus as may be reasonably
necessary in connection with the injury received by the employee.
The employer shall have the right to choose the treating physician
or chiropractor.
B. If the employer fails or neglects to provide m edical
treatment within five (5) days after actual know ledge is received of
an injury, the injured employee may select a physician or
chiropractor to provide medical treatment at the expense of the
employer; provided, however, that the injured employee, or another
in the employee’s behalf, may obtain emergency treatment at the
expense of the employer where such emergency tre atment is not
provided by the employer.
C. Diagnostic tests shall not be repeat ed sooner than six (6)
months from the date of the test unless agreed to by the parties or
ordered by the Commission for good cause shown.
D. Unless recommended by the treatin g doctor or chiropractor at
the time claimant reaches maximum medical improvemen t or by an
independent medical examiner, continuing med ical maintenance shall
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not be awarded by the Commission . The employer or insurance carrier
shall not be responsible for continuing medical maintenance or pain
management treatment that is outside the parameters established by
the Physician Advisory Commit tee or ODG. The employer or insurance
carrier shall not be responsible for continuing medical maintenance
or pain management treatment not previously ordered by the
Commission or approved in advance b y the employer or insuran ce
carrier.
E. An employee claiming or entitled to benefits under the
Administrative Workers’ Compensation Act this act, shall, if ordered
by the Commission or requested by the employer or insurance carrier,
submit himself or hers elf for medical examinati on. If an employee
refuses to submit himself or herself to examination, his or her
right to prosecute any proceeding under the Administrative Workers ’
Compensation Act this act shall be suspended, and no compensation
shall be payable for the period of suc h refusal.
F. For compensable injuries resulting in the use of a medical
device, ongoing service for the medical device shall be provided in
situations including, but not limited to, medical device battery
replacement, ongoing med ication refills related t o the medical
device, medical device repair, or medical device replacement.
G. The employer shall reimburse the employee for the actual
mileage in excess of twenty (20) miles round trip to and from the
employee’s home to the location of a medical service provider for
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all reasonable and necessary treatment, for an evaluation of an
independent medical examiner and for any evaluation made at the
request of the employer or insurance carrier. The rate of
reimbursement for such travel e xpense shall be the offic ial
reimbursement rate as esta blished by the State Travel Reimbursement
Act. In no event shall the reimbursement of travel for medical
treatment or evaluation exceed six hundred (600) miles round trip.
H. Fee Schedule.
1. The Commission shall conduct a review and update of the
Current Procedural Terminology (CPT) in the Fee Schedule eve ry two
(2) years pursuant to the provisions of paragraph 14 of thi s
subsection. The Fee Schedule shall establish the maximum rates that
medical providers shall be reimbur sed for medical care provided to
injured employees including, but not limited to, cha rges by
physicians, chiropractors, dentists, counselors, hospitals ,
ambulatory and outpatient facilities, clinical laboratory services,
diagnostic testing services, and am bulance services, and charges for
durable medical equipment, prosthetics, orthotics, and supplies.
The most current Fee Schedule established by the Ad ministrator of
the Workers’ Compensation Court prior to February 1, 2014, shall
remain in effect, unless or until the Legislature appro ves the
Commission’s proposed Fee Schedule.
2. Reimbursement for medical care shall be prescribed and
limited by the Fee Schedule. The director of the Employees Group
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Insurance Division of the Office of Management and Enterp rise
Services shall provide th e Commission such information as may be
relevant for the development of the Fee Schedule. The Commission
shall develop the Fee Schedule in a manner in which quality of
medical care is assured and main tained for injured employ ees. The
Commission shall giv e due consideration to additional requirements
for physicians treating an injured worker under the Administrative
Workers’ Compensation Act, including, but not limited to,
communication with claims rep resentatives, case manage rs, attorneys,
and representatives of employers, and the additional time required
to complete forms for the Commission, insurance carriers, and
employers.
3. In making adjustments to the Fee Schedule, the Commission
shall use, as a benchmark, the reimburs ement rate for each Current
Procedural Terminology (CPT) code provided for in the fee schedule
published by the Centers for Medicare and Medicaid Servi ces of the
U.S. Department of Health and Human Services for use in Oklahoma
(Medicare Fee Schedule) on th e effective date of this secti on,
workers’ compensation fee schedules employed by nei ghboring states,
the latest edition of “Relative Values for Physic ians” (RVP), usual,
customary and reasonable medical payments to workers ’ compensation
health care providers in the same trade area for comparable
treatment of a person with similar injuries , and all other data the
Commission deems relevant. For services not valued by CMS, the
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Commission shall establish values based on the usual, cus tomary and
reasonable medical payments to health care p roviders in the same
trade area for comparable treatmen t of a person with similar
injuries.
a. No reimbursement shall be allowed for any magnetic
resonance imaging (MRI) unless the MRI is provided by
an entity that meets Medic are requirements for the
payment of MRI services or is accredited by the
American College of Radiology, the Intersocietal
Accreditation Commission or t he Joint Commission on
Accreditation of Healthcare Organizations . For all
other radiology procedures, th e reimbursement rate
shall be the lesser of the reimbursement rate allowed
by the 2010 Oklahoma Fee Schedule and two hundred
seven percent (207%) of th e Medicare Fee Schedule.
b. For reimbursement of medical services for Evaluation
and Management of injure d employees as defined in the
Fee Schedule adopted by the Commission, the
reimbursement rate shall not be less than one hundred
fifty percent (150%) of the Medicare Fee Schedule.
c. Any entity providing durable medical equipment,
prosthetics, orthotics or supplies shall be accredited
by a CMS-approved accreditation organization. If a
physician provides durable medical equipment,
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prosthetics, orthotics, prescription drugs, or
supplies to a patient ancillary to the patient ’s
visit, reimbursement shall be no more than ten percent
(10%) above cost.
d. The Commission shall develop a reasonable stop-loss
provision of the Fee Schedule to provide for adequate
reimbursement for treatment for major burns, severe
head and neurological injuries , multiple system
injuries, and other catastrophic inju ries requiring
extended periods of intensive care. An employer or
insurance carrier shall have the right to audit the
charges and question the reasonableness and necessity
of medical treatment contain ed in a bill for treatmen t
covered by the stop-loss provision.
4. The right to recover charges for every type of medical care
for injuries arising out of and in the course of covered employment
as defined in the Administrative Workers ’ Compensation Act shall lie
solely with the Commission. When a medical car e provider has
brought a claim to the Commission to obt ain payment for services, a
party who prevails in full on the clai m shall be entitled to
reasonable attorney fees.
5. Nothing in this section sha ll prevent an employer, i nsurance
carrier, group self-insurance association, or certified workplace
medical plan from contracting with a provider of medical care for a
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reimbursement rate that is greater than or less than limits
established by the Fee Sched ule.
6. A treating physi cian may not charge more than Four Hundred
Dollars ($400.00) per hour for preparation for or testimony at a
deposition or appearance before the Commiss ion in connection with a
claim covered by the Administrative Workers ’ Compensation Act.
7. The Commission’s review of medical and trea tment charges
pursuant to this section shall be conduct ed pursuant to the Fee
Schedule in existence at the time the medic al care or treatment was
provided. The judgment approving the medical and treat ment charges
pursuant to this section shall be enforcea ble by the Commission in
the same manner as provided in the Administrative Workers ’
Compensation Act for the enforcement of other compensation payments.
8. Charges for prescription drugs dispensed by a pharmacy shall
be limited to ninety percent (90%) of the average wholesale price of
the prescription, plus a dispensing fee of Five Dollars ($5.00) per
prescription. “Average wholesale price” means the amount determined
from the latest publication desig nated by the Commission.
Physicians shall prescribe an d pharmacies shall dispense generic
equivalent drugs when available. If the National Drug Code, or
“NDC”, for the drug product dispensed is for a repackaged drug, then
the maximum reimbursement shall be the lesser of the orig inal
labeler’s NDC and the lowest-cost therapeutic equivalent drug
product. Compounded medications shall be billed by the compounding
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pharmacy at the ingredient level, with each ingredient identified
using the applicable NDC of th e drug product, and the c orresponding
quantity. Ingredients with no NDC area are not separately
reimbursable. Payment shall be based on a sum of the allowable fee
for each ingredient plus a dispensing fee of Five Dollars ($5.00)
per prescription.
9. When medical care includes p rescription drugs dispensed by a
physician or other medical care provider and the NDC for the drug
product dispensed is for a repackaged drug, then the maximum
reimbursement shall be the lesser of the original labeler ’s NDC and
the lowest-cost therapeutic equivalent drug product. Paym ent shall
be based upon a sum of the allowable fee for each ingredient plus a
dispensing fee of Five Dollars ($5.00) per prescription. Compounded
medications shall be billed by the compounding pharmac y.
10. Implantables are paid in addition to procedural
reimbursement paid for medical or surgical services. A
manufacturer’s invoice for the actual cost to a physician, hospi tal
or other entity of an implantable device shall be adjusted by the
physician, hospital or other entity to reflect, at the time
implanted, all applicable discounts, rebates, considerations and
product replacement programs and shall be provided to the pay er by
the physician or hospital as a condition of payment for the
implantable device. If the physician, or an entity in which the
physician has a financial interest other than an ownership interest
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of less than five percent (5%) in a publically publicly traded
company, provides implantable devices, this relationship shall be
disclosed to patient, employer, i nsurance company, third -party
commission, certified workplace medical plan, case mana gers, and
attorneys representing claimant and defendant. If the p hysician, or
an entity in which the physician has a financial interest other tha n
an ownership interest o f less than five percent (5%) in a publicly
traded company, buys and resells implanta ble devices to a hospital
or another physician, the markup shall b e limited to ten percent
(10%) above cost.
11. Payment for medical care as requ ired by the Administrativ e
Workers’ Compensation Act shall be due within forty-five (45) days
of the receipt by the employer or insurance carrier of a complete
and accurate invoice, unless the employer or insurance carrier has a
good-faith reason to reques t additional information about such
invoice. Thereafter, the Commission may assess a penalty up to
twenty-five percent (25%) for any amount due under the Fee Schedule
that remains unpaid on the finding by the Commission that no good -
faith reason existed f or the delay in payment. If the Commission
finds a pattern of an employer or insurance carrier willfully and
knowingly delaying payments for medical care, the Commission may
assess a civil penalty of not more than Five Thousand Dollars
($5,000.00) per occurrence.
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12. If an employee fails to appear for a sche duled appointment
with a physician or chiropractor, the employer or insurance company
shall pay to the physician or chiro practor a reasonable charge, to
be determined by the Commission, for the missed appointment. In the
absence of a good-faith reason for missing the appointment, the
Commission shall order th e employee to reimburse the employer or
insurance company for the charge.
13. Physicians or chiropractors providing treatment under the
Administrative Workers’ Compensation Act shall disclose under
penalty of perjury to the Commission, on a form prescribe d by the
Commission, any ownership or interest in any health care facility,
business, or diagnostic center that is not the physician ’s or
chiropractor’s primary place of b usiness. The disclosure shall
include any employee leasing arrangement between the p hysician or
chiropractor and any health care facility that is not the
physician’s or chiropractor’s primary place of business. A
physician’s or chiropractor’s failure to disclose as required by
this section shall be grounds for the Commission to disqualif y the
physician or chiropractor from providing treatment under the
Administrative Workers’ Compensation Act.
14. a. Beginning on May 28, 2019, the Commission shall
conduct an evaluation of the Fee Sche dule, which shall
include an update of the list of Curr ent Procedural
Terminology (CPT) codes, a line item adjustment or
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renewal of all rates, and amendment as needed to the
rules applicable to the Fee Schedule.
b. The Commission shall contract with an ext ernal
consultant with knowledge of workers’ compensation fee
schedules to review regional and nationwide
comparisons of Oklahoma’s Fee Schedule rates and date
and market for medical services. The cons ultant shall
receive written and oral comment from empl oyers,
workers’ compensation medical service and insura nce
providers, self-insureds, group self -insurance
associations of this state and the public. The
consultant shall submit a report of its finding s and a
proposed amended Fee Schedule to the Commission .
c. The Commission shall adopt the proposed amended Fe e
Schedule in whole or in part and make any additional
updates or adjustments. The Commission shall submit a
proposed updated and adjusted Fee Sc hedule to the
President Pro Tempore of the Senate, the Speaker of
the House of Representatives and the Governo r. The
proposed Fee Schedule shall become effective on July 1
following the legislative session, if approved by
Joint Resolution of the Legislatu re during the session
in which a proposed Fee Schedule is submitted.
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d. Beginning on May 28, 2019, an external evaluation
shall be conducted and a proposed amended Fee Schedule
shall be submitted to the Legislature for approval
during the 2020 legislative session. Thereafter, an
external evaluation shall be c onducted and a proposed
amended Fee Schedule shall be s ubmitted to the
Legislature for approval every two (2) years.
I. Formulary. The Commission by rule shall adopt a closed
formulary. Rules adopte d by the Commission shall allow an appeals
process for claims in which a treating doctor determines and
documents that a drug not included in the formulary is necessary to
treat an injured employee’s compensable injury. The Commission by
rule shall require the use of generic phar maceutical medications and
clinically appropriate over-the-counter alternatives to pr escription
medications unless otherwise specified by the prescribi ng doctor, in
accordance with applicable state law.
SECTION 13. AMENDATORY 85A O.S. 2021, Section 67, is
amended to read as follows:
Section 67. A. Except as otherwise provided in this section,
notice of disability resulting from an occupational disease or
cumulative trauma shall be the same as in cases of accidental
injury.
B. Written notice shall be given to the employer of an
occupational disease or cumulative trauma by the employee, or a
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representative of the employee in the case of incapacity or death,
within six (6) months after the first distinct manifestation of the
disease or cumulative trauma or within six (6) months after de ath.
C. The date of injury for cumulative trauma shall be the last
date of injurious exposure prior to the filing date of the
Employee’s First Notice of Claim for Compensation.
SECTION 14. AMENDATORY 85A O .S. 2021, Section 69, is
amended to read as follows:
Section 69. A. Time for Filing. 1. A claim for benefits
under this act the Administrative Workers ’ Compensation Act, other
than an occupational disease, shall be barred unless it is filed
with the Oklahoma Workers’ Compensation Commission within one (1)
year from the date of the inju ry or, if the employee has received
benefits under this title for the injury, six (6) months from the
date of the last issuance of such benefits payment of indemnity
benefits or date of service fo r medical treatment, whichever is
later. For purposes of th is section, the date of the injury shall
be defined as means the date an injury is caused by an accident as
set forth in paragraph 9 of Section 2 of this title , and date of
issuance of medical benefits means the date of service of the
medical benefit.
2. a. A claim for compensation for disabi lity on account of
injury which is either an occupational di sease or
occupational infection shall be barred unless filed
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with the Commission within two (2) yea rs from the date
of the last injurious exposure to the hazards of the
disease or infection.
b. A claim for compensation for dis ability on account of
silicosis or asbestosis shall be filed with the
Commission within one (1) year after the time of
disablement, and the disablement shall occur within
three (3) years from the date of the last injurious
exposure to the hazard of silicos is or asbestosis.
c. A claim for compensation for disability on account of
a disease condition caused by exposure to X -rays,
radioactive substances, or ionizing radiation only
shall be filed with the Commission within two (2)
years from the date the condit ion is made known to an
employee following examination and diagnosis by a
medical doctor.
3. A claim for compensation on account of death shall be barred
unless filed with the Commission within two (2) years of the date of
such a death.
4. If a claim for benefits has been timely file d under
paragraph 1 of this subsection and the employee claimant does not:
a. make a good-faith request for a hearing to resolve a
dispute regarding the right to receive benefits,
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including medical treatment, under this title within
six (6) months of the d ate the claim is filed, or
b. receive or seek benefits, including medical treatment,
under this title for a period of six (6) months ,
then on motion by the employer, the claim shall be dismissed with
without prejudice.
B. Failure to File. Failure to file a claim within the period
prescribed in subsection A of this section shall not be a bar to the
right to benefits hereunder unless objection to the failure is made
at the first hearing on the clai m in which all parties in inter est
have been given a reasonab le notice and opportunity to be heard by
the Commission.
C. Persons under Disability.
1. Notwithstanding any statute of limitation provid ed for in
this act, when it is established that failure to file a claim by an
injured employee or his or her dependen ts was induced by fraud, the
claim may be filed within one (1) year from the time of the
discovery of the fraud.
2. Subsection A of this s ection shall not apply to a mental
incompetent or minor so long as the person has no gu ardian or
similar legal repres entative. The limitations prescribed in
subsection A of this section shall apply to the mental in competent
or minor from the date of the a ppointment of a guardian or similar
legal representative for that person, and when no g uardian or
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similar representative has been appointed, to a minor on reaching
the age of majority.
D. A latent injury or conditi on shall not delay or toll the
limitation periods specified in this section. This subsection sha ll
not apply to the limitation period for occupational diseas es
specified in paragraph 2 of subsection A of this section.
SECTION 15. AMENDATORY 85A O.S. 2021, Section 80, is
amended to read as follows:
Section 80. A. A final order for permanent disability is a
final adjudication of all is sues pending in the claim unless
reserved in the order or by operation of law. Except where a joi nt
petition settlement has been approved, the Oklahoma Workers’
Compensation Commission may revie w any compensation judgment, award,
or decision.
1. Such review may be done upon application for a change of
condition for the worse at any time within six (6 ) months from the
date of the last order in which monetary benefits were awarded or
active medical treatment was provided, on the Commission’s own
motion or on the application of any party in interest, and unless
filed within such period of time shall be f orever barred. On
review, the Commission may make a judgment or award terminating,
continuing, decreasing, or increasing for the future the
compensation previously awarded, subject to the maximum limits
provided for in this title. An order denying an app lication to
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reopen a claim shall not extend the period of time set out in this
title for reopening the claim. A failure to comply with a medical
treatment plan ordered by the Commission shall bar the reopening of
a claim.
2. The Oklahoma Workers’ Compensation Commission may review any
compensation judgment, award, or decision at any time and without
limitation upon a filing of an application for a finding of a change
of condition for the better. Such review may be filed for good
cause shown. On review, the Commission may make a judgment or award
terminating, continuing , or decreasing for the future the
compensation previously awarded, subject to the limits provided for
in this act.
B. The review and subsequent award shall be made in accordance
with the procedure prescribed in Sections 69 through 78 of this
title. No review shall affect any compens ation paid under a pri or
order, judgment or award.
C. The Commission may correct any clerical error in any
compensation judgment or award within one (1) year from the date of
its issuance.
D. Aging and the effects of aging on a compensable injury are
not to be considered in d etermining whether there has been a change
in physical conditio n. Aging or the effect of aging on a
compensable injury shall not be cons idered in determining permanent
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disability under this section or any other section in this act the
Administrative Workers ’ Compensation Act.
SECTION 16. AMENDATORY 85A O.S. 2021, Section 112, is
amended to read as follows:
Section 112. A. The Oklahoma Workers’ Compensation Commission
shall create, maintain and review a list of licensed physicians who
shall serve as independent medical examiners from a list of licensed
physicians who have completed such course s tudy as the Commission
may require. An independent medical examiner must agree to examine
an employee within forty -five (45) days of appointment. T he
Commission shall, to the best of its ability, include the most
experienced and competent physicians in t he specific fields of
expertise utilized most often in the treatment of injured employees.
The period of qualificati on shall be two (2) years. Phys icians may
be qualified for successive two-year periods. Physicians s erving as
independent medical examine rs on the effective date of this act
February 1, 2014, shall serve the remainder of their respective two -
year qualification periods and may reapply for successive
qualification periods. The Commission may remov e an independent
medical examiner from the list for cause.
B. An administrative law judge may appoint an independent
medical examiner to assist in determining an y issue before the
Commission. In the event surgery is reco mmended by a treating
physician, upon request of the employe r or employee, an independent
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medical examiner shall be appointed to determine the reasonableness
and necessity of the recommended surge ry. The request of the
employer or employee for an in dependent medical examiner , and a
request for a deposition of the treating physician, shall be filed
within fifteen (15) days of the receipt of the recommendation for
surgery, or the recommended surgery shall be approved by the
Commission. The Commission shall set a request for an independent
medical examiner that is ti mely filed on an accelerated prehearing
docket within ten (10) days of the filing of the request. The
appointment with the independent medical examiner regarding the
reasonableness and necess ity of a recommended surgery shall occ ur
within thirty (30) days of the appointment. Such independent
medical examiner shall be qualified to perform the type of surgery
recommended. In the event the independent medical examiner a grees
with the treating phy sician’s recommendation for surgery, the
employer shall pay to the employee the sum of One Thousand D ollars
($1,000.00) for the delay in medical treatment in addition to other
benefits provided for in this act. If the employer fails to
schedule a requested deposition of either the treating physician or
the independent medical examiner within twenty (20) days of filing a
request for deposition, the employer shall pay to the employee the
sum of One Thousand Dollars ($1,000.00) for the delay in medical
treatment in addition to other benefits prov ided for in this act.
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C. An independent medical examiner shall be selected from the
list of independent medical examiners within ten (10) da ys when the
employer or the employee petitions the Commission for the selection
of an independent medical examiner. The independent medical
examiner shall be certified by a reco gnized specialty board in the
area or areas appropriate to the condition under review.
D. The Commission shall, to the best of its ability, maintain a
geographic balance of independent medical examiners.
E. Counsel for the employee and employer are respo nsible for
transmittal of the employee ’s medical records to the independent
medical examiner within ten (10) days of appointment.
F. After a physical examination and review of medical records
and other appropriate information, including depositions and
surveillance video, the independent medical examiner shall submit a
verified written report to the Commission and to the parties. In
the event the independent medical examiner determines that mo re
medical treatment is necessary, the employer shall designate a
treating physician to provide the indicated treatment.
G. Any independent medical examiner selected pursuant to the
provisions of this section shall be reimbursed for the medical
examination, reports and fees in a reasonable and customary amount
set by the Commission, and these costs shall be borne by the
employer.
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H. The Commission shall create a review process to oversee on a
continuing basis the quality of performance and the timeliness of
the submission of medical findings by independent medical ex aminers.
I. If the Commission does not follow the opinion of the
independent medical examiner on any issue, the administrative law
judge or member of the Board of Review shall set out its reas ons for
deviating from the opinion of the independent medical e xaminer. The
opinion of the independent medical examiner shall be followed un less
there is clear and convincing evidence to the contrary.
J. Upon receipt of an independent medical examiner ’s report,
any party shall have the right to object to the introdu ction of the
report into evidence. The objection and any request for a
deposition of the independent medical examiner must be made by
giving written notification to all parties and to the Commission
within ten (10) days after receipt of the report , subject to the
limitations set forth in subsection B of this section. The employer
shall be responsible for the reasonable charges of the physician for
such testimony, preparation time, and the expe nse of the deposition.
SECTION 17. AMENDATORY 85A O.S. 2021, Section 400, is
amended to read as follows:
Section 400. A. The Workers’ Compensation Court shall be
renamed the Workers’ Compensation Court of Existing Claims for the
purpose of hearing disputes relating to claims that arise arose
before February 1, 2014. The Court shall consist of the existing
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judges for the remain der of his or her term. Each judge of the
Court shall continue to serve as the appointment to a designated
position on the Court. The terms of the judges by position number
shall expire on the following dates:
Position 4 shall expire 7-1-20.
Position 5 shall expire 7-1-20.
Position 8 shall expire 7-1-20.
Position 9 shall expire 7-1-20.
B. Effective July 1, 2020, the Workers’ Compensation Court of
Existing Claims shall consist of one judge to be appointed by the
Governor, with confir mation by the Senate. The term of the judge
shall be appointed for a term to expire serving on July 1, 2022, is
hereby extended to July 1, 2027 . The Governor shall select the
judge from a list of three applicants submitted to the Governor by
the Judicial Nominating Commission. If the list is not acceptable
to the Governor, the G overnor may request from the Judici al
Nominating Commission a list of names of three additional
applicants. Any present judge of the Court of Existing Claims may
apply to the Judicial Nominating Commission for appointment to fill
any position authorized b y this section.
C. A The judge may be removed for cause by the Court on the
Judiciary prior to the expiration of his or her term.
D. Each The judge shall receive a salary equal to that paid to
a district judge of this state, and shall devote full time to his or
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her duties and shall not engage i n the private practice of law
during the term in office.
E. If a vacancy occurs on the Court of Existing Claims, the
Governor shall appoint a judge to serve the remainder of the term
from a list of three applicants submitted to the Governor by the
Judicial Nominating Commission, with confirmation of the State
advice and consent of the Senate. If the list is not acceptable to
the Governor, the Governor may request from the Judicial Nominating
Commission a list of the names of three additional applicants.
F. 1. Effective January 1, 2020, the The Governor shall
appoint an Administrator of the Court of Existing Claims, who shall
serve at the pleasure of the Governor. The Administrator shall be
appointed by the Governor with the advice and consent of the Senate.
The compensation for t he Administrator shall be set at ninet y
percent (90%) of the compensation of a district court judge.
2. The Administrator shall employ and supervise the work of
employees of the Court and shall have the authority to expend funds
and contract on behalf of the Court. The Administrator may cont ract
with the Oklahoma Workers’ Compensation Commission to provide
support services or personnel needs necessary to carry out the
purposes of the Court and shall supervise the work of any such
personnel as necessary to maintai n the Court as a Court of Record.
G. The Court of Existing Claims shall contract with the
Oklahoma Workers’ Compensation Commission to integrate its case
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management and records Information Technology System into the system
of the Oklahoma Workers’ Compensation Commission with such
integration to be completed on or before July 1, 2022. The Court
shall be entitled to a ny fees generated for the retrieval of such
data.
H. The Court shall operate by the rules adopted by the Workers’
Compensation Court prior to February 1, 2014.
I. The Court is hereby designated and confirmed as a court of
record, with respect to any matter within the limits of its
jurisdiction, and within such limits the judges thereof shall
possess the powers and prerogatives of the judges of the other
courts of record of this state including the power to punish for
contempt those persons who disobey a s ubpoena, or refuse to be sworn
or to answer as a witness, when lawfully ordered to do so.
J. The principal office of the Court shall be situated in the
City of Oklahoma City in quarters assigned by the Office of
Management and Enterprise Services. The Co urt may hold hearings in
any city of this state.
K. All county commissioners and presiding district judges of
this state shall make quarters available for the conducting of
hearings by a judge of the Court upon request by the Court.
L. Judges of the Work ers’ Compensation Court of Existing Claims
may punish for direct contempt pursuant to Sections 565, 565.1 and
566 of Title 21 of the Oklahoma Statutes.
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M. The Court shall be vested with jurisdiction over all claims
filed pursuant to the Workers’ Compensation Code or previous statute
in effect on the date of an injury that occurred before February 1,
2014. All claims so filed shall be heard by the judge sitting
without a jury. The Court shall have full power and authority to
determine all questions in rel ation to payment of claims for
compensation under the provisions of the Workers’ Compensation Code
or previous statute in effect on the date of an injury that occurred
before February 1, 2014. The Court, upon application of either
party, shall order a hea ring. Upon a hearing, either party may
present evidence and be represented by counsel. The decision of the
Court shall be final as to all questions of fact a nd law; provided,
the decision of the Court may be appealed to the Court en banc or
the Supreme Court as provided by the Workers’ Compensation Code or
previous statute in effect on the date of an injury that occurred
before February 1, 2014. In the event that an insufficient number
of active judges are available to comprise the three-judge en banc
panel, retired or former judges of the district court, Workers’
Compensation Court or Workers’ Compensation Court of Existing Claims
may be designated by the Pre siding Judge of the Court of Existing
Claims as eligible to serve on such panel. The Governor sh all
provide to the Court of Existing Claims a list of designated judges
eligible for service on the Court en banc. The decision of the
Court shall be issued w ithin thirty (30) days following the
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submission of the case by the parties. The power and jurisd iction
of the Court over each case shall be continuing and it may, from
time to time, make such modifications or changes with respect to
former findings or ord ers relating thereto if, in its opinion, it
may be justified.
N. For an injury occurring before February 1, 2014, all
benefits and procedures to obtain benefits shall be determined by
the workers’ compensation law of this state in effect on the date of
the injury.
O. All accrued rights and penalties incurred pursuant to a
final order of the Workers ’ Compensation Court shall be preserved.
No accrued right, penalty incurred, or proceeding begun by virtue of
a statute repealed by this act the Administrative Worker s’
Compensation Act shall be abrogated by the terms of this act the
Administrative Worker s’ Compensation Act.
P. Annually, on or before the first day of July, commencing
with July 2019, the Administrator shall prepare and submit a report
for the prior calendar year to the Governor, the Chief Justice of
the Supreme Court, the President P ro Tempore of the Senate and the
Speaker of the House of Representatives, and the chairs of the
Senate and House judiciary committees, which shall include a
statement of the number of awards made and the causes of the
accidents leading to the injuries for which the awards were made,
total work load data of the Court , a detailed report of the work
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load of the judges of the Court, a detailed statement of the
expenses of the office of the Administrator of Workers’ Compensation
Court of Existing Claims, the number of disposition dockets held,
the number of remaining claims, together with any other matter which
the Administrator deems proper to report to the Governor including
any recommendations he or she may desire to make.
Q. Subject to the availability of funds, the Judge of the Court
of Existing Claims may employ one at-will full- or part-time special
workers’ compensation judge with jurisdiction to hear cases as set
forth in subsection M of this section and as may be assigned by the
Judge. The special workers’ compensation judge shall receive
compensation for such services in accordance with the provisions of
Section 92.1A of Title 20 of the Oklahoma Statutes.
SECTION 18. Sections 1 through 12 of this act shall become
effective November 1, 2023.
SECTION 19. It being immediately necessary for the preservation
of the public peace, healt h or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after i ts passage and approval.”
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Passed the Senate the 26th day of April, 2023.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2023.
Presiding Officer of the House
of Representatives
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ENGROSSED HOUSE
BILL NO. 2375 By: Kannady of the House
and
Thompson (Roger) of the
Senate
[ workers' compensation - compensable injury –
accidents - exclusive nature of remedy - liability
for intentional acts - permanent partial disability
- compensation for loss of certa in scheduled
members - computation of certain benefit amounts -
beneficiary payments - travel reimbursement process
– claims - permanent disability - Workers'
Compensation Commission - independent medical
examiner - Judges of Workers' Compensatio n Court of
Existing Claims - effective date –
emergency ]
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 20. AMENDATORY 85A O.S. 2021, Section 2, is
amended to read as follows:
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Section 2. As used in the Administrative Workers' Compensation
Act:
1. "Actually dependent" means a surviving spouse, a child or
any other person who receives one -half (1/2) or more of his or her
support from the employee;
2. "Carrier" means any stock company, mutual company, or
reciprocal or interinsurance exchange authorized to write or carry
on the business of workers' compensation insurance in this state.
Whenever required by the cont ext, the term "carrier" shall be deemed
to include duly qualified self -insureds or self-insured groups;
3. "Case management" means the ongoing coordination, by a case
manager, of health care services provided to an injured or disabled
worker, including bu t not limited to systematically monitoring the
treatment rendered and the medical progress of the injured o r
disabled worker; ensuring that any treatment plan follows all
appropriate treatment protocols, utilization controls and practice
parameters; assessing whether alternative health care services are
appropriate and delivere d in a cost-effective manner based upon
acceptable medical standards; and ensuring that the injured or
disabled worker is following the prescribed health care plan;
4. "Case manager" means a person who is a registered nurse with
a current, active unencumb ered license from the Oklahoma Boa rd of
Nursing, or possesses one or more of the following certifications
which indicate the individual has a minimum number of years of c ase
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management experience, has passed a national competency test and
regularly obtains continuing education hours to mai ntain
certification:
a. Certified Disability Management Specialist (CDMS),
b. Certified Case Manager (CCM),
c. Certified Rehabilitation Registered Nurse (CRRN),
d. Case Manager - Certified (CMC),
e. Certified Occupational Health Nurse (COHN), or
f. Certified Occupational Health Nurse Specialist (COHN -
S);
5. "Certified workplace medical plan" means an organization of
health care providers or any other entity, certified by the State
Commissioner of Health, that is authorized to enter into a
contractual agreement with an employer, group self-insurance
association plan, an employer's workers' compensation insurance
carrier, third-party administrator or an insured to provide medical
care under the Administrative Workers' Compens ation Act. Certified
plans shall only include plans which provide medical services and
payment for services on a fee -for-service basis to medical
providers;
6. "Child" means a natural or adopted son or daughter of the
employee under eighteen (18) years o f age; or a natural or adopted
son or daughter of an employee eighteen (18) years of age or over
who is physically or mentally incapable of self -support; or any
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natural or adopted son or daughter of an employee eighteen (18)
years of age or over who is act ually dependent; or any natural or
adopted son or daughter of an employee between eighteen (18) and
twenty-three (23) years of age who is enrolled as a full -time
student in any accredited educational institution. The term "child"
includes a posthumous chi ld, a child legally adopted or one for whom
adoption proceedings are pending at the time of death, an actually
dependent stepchild or an actually dependent acknowledged c hild born
out of wedlock;
7. "Claimant" means a person who claims benefits for an inj ury
or occupational disease pursua nt to the provisions of the
Administrative Workers' Compensation Act;
8. "Commission" means the Workers' Compensation Commission;
9. a. "Compensable injury" means damage or harm to the
physical structure of the body, or damage or harm to
prosthetic appliances, including eyeglasses, contact
lenses, or hearing aids, of which the major cause is
either an accident, cumulative trauma or occupa tional
disease arising out of the course and scope of
employment. An "accident" mea ns an event involving
factors external to the employee that:
(1) was unintended, unanticipated, unforeseen,
unplanned and unexpected,
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(2) occurred at a specifically identif iable time and
place,
(3) occurred by chance or from unknown causes, or
(4) was independent of sickness, mental incapa city,
bodily infirmity or any other cause , and
(5) was not as the result of an intentional act .
b. "Compensable injury" does not include:
(1) injury to any active participant in assaults or
combats which, although they may occur in the
workplace, are the r esult of non-employment-
related hostility or animus of one, both, or all
of the combatants and which assault or combat
amounts to a deviation from customary duties;
provided, however, injuries caused by horseplay
shall not be considered to be compensable
injuries, except for innocent victims,
(2) injury incurred while engaging in or performing
or as the result of engaging in or performing an y
recreational or social activities for the
employee's personal pleasure,
(3) injury which was inflicted on the employ ee at a
time when employment services were not being
performed or before the employee was hired or
after the employment relationship was t erminated,
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(4) injury if the accident was caused by the use of
alcohol, illegal drug s, or prescription drugs
used in contravention of physician's orders. If
a biological specimen is collected within twenty -
four (24) hours of the employee being injured or
reporting an injury, or if at any time after the
injury a biological specimen is col lected by the
Oklahoma Office of t he Chief Medical Examiner if
the injured employee does not survive for at
least twenty-four (24) hours after the injury and
the employee tests positive for intoxication, an
illegal controlled substance, or a legal
controlled substance used in contravention to a
treating physician's orders, or refuses to
undergo the drug and alcohol testing, there shall
be a rebuttable presumption that the in jury was
caused by the use of alcohol, illegal drugs, or
prescription drugs used in contravention of
physician's orders. This presumption may only be
overcome if the employee proves by clear and
convincing evidence that his or her state of
intoxication had no causal relationship to the
injury,
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(5) any strain, degeneration, damage or harm to, or
disease or condition of, t he eye or
musculoskeletal structure or other body part
resulting from the natural results of aging,
osteoarthritis, arthritis, or degenera tive
process including, but not limited to,
degenerative joint disease, degenerative disc
disease, degenerative
spondylosis/spondylolisthesis and spinal
stenosis, or
(6) any preexisting condition except when the
treating physician clearly confirms an
identifiable and significant aggravation incurred
in the course and scope of employment,
(7) any injury resulting from an idiopathic injury or
condition, or
(8) any injury resulting from an intentional act.
c. Where compensation is payable for an injury resulting
from cumulative trauma, the last employer in whose
employment the employee was l ast injuriously exposed to
the trauma during a period of at least ninety (90) days
or more, and the insurance carrier, if any, on the risk
when the employee was last so exposed under such
employer, shall alone be liable therefor, without
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right to contribution from any prior employer or
insurance carrier. If there is no employer in whose
employment the employee was injuriously exposed to the
trauma for a period of at least ninety (90) days, then
the last employer in whose employment the employee was
last injuriously exposed to the trauma and the
insurance carrier, if any, on the risk when such
employee was last so exposed under such employer,
shall be liable therefor, with right to contribution
from any prior employer or insurance carrier.
c.
d. A compensable injury shall be established by m edical
evidence supported by objective findings as defined in
paragraph 31 33 of this section.
d.
e. The injured employee shall prove by a preponderance of
the evidence that he or she has suffered a compensable
injury.
e.
f. Benefits shall not be payable f or a condition which
results from a non-work-related independent
intervening cause following a compensable injury which
causes or prolongs disability, aggravation, or
requires treatment. A non -work-related independent
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intervening cause does not require ne gligence or
recklessness on the part of a claimant.
f.
g. An employee who suffers a compensable injury shall be
entitled to receive compensation as prescribed in this
act. Notwithstanding other provisions of law, if it
is determined that a compensable inj ury did not occur,
the employee shall not be entitled to compensation
under this act;
10. "Compensation" means the money allowance payable to the
employee or to his or her dependents and i ncludes the medical
services and supplies provided for in Section 5 0 of this title and
funeral expenses;
11. "Consequential injury" means injury or harm to a part of
the body that is a direct result of the injury or medical treatment
to the part of the bo dy originally injured in the claim. The
Commission shall not make a finding of a consequential injury unless
it is established by objective medical evidence that medical
treatment for such part of the body is required;
12. "Continuing medical maintenance " means medical treatment
that is reasonable and necessary to maint ain claimant's condition
resulting from the compensable injury or illness after reaching
maximum medical improvement. Continuing medical maintenance shall
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not include diagnostic tests, sur gery, injections, counseling,
physical therapy, or pain management devices or equipment;
13. "Course and scope of employment" means an activity of any
kind or character for which the employee was hired and that relates
to and derives from the work, busine ss, trade or profession of an
employer, and is performed by an empl oyee in the furtherance of the
affairs or business of an employer. The term includes activities
conducted on the premises of an employer or at other locations
designated by an employer and travel by an employee in furtheranc e
of the affairs of an employer that is specifically directed by the
employer. This term does not include:
a. an employee's transportation to and from his or her
place of employment,
b. travel by an employee in furthera nce of the affairs of
an employer if the travel is also in furthera nce of
personal or private affairs of the employee,
c. any injury occurring in a parking lot or other common
area adjacent to an employer's place of business
before the employee clocks in o r otherwise begins work
for the employer or after the employee cloc ks out or
otherwise stops work for the employer unless the
employer owns or maintains exclusive control over the
area, or
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d. any injury occurring while an employee is on a work
break, unless the injury occurs while the employ ee is
on a work break inside th e employer's facility or in
an area owned by or exclusively controlled by the
employer and the work break is authorized by the
employee's supervisor;
14. "Cumulative trauma" means an injury to an employee that is
caused by the combined effect of repetitiv e physical activities
extending over a period of time in the course and scope of
employment. Cumulative trauma shall not mean fatigue, soreness or
general aches and pain that may have been caused, aggravated,
exacerbated or accelerated by the employee's c ourse and scope of
employment. Cumulative trauma shall have resulted directly and
independently of all other causes;
15. "Death" means only death resultin g from compensable injury
as defined in paragraph 9 of this section;
16. "Disability" means incapac ity because of compensable injury
to earn, in the same or any other employment, substantially the same
amount of wages the employee was receiving at the tim e of the
compensable injury;
17. "Drive-away operations" includes ev ery person engaged in
the business of transporting and delivering new or used vehicles by
driving, either singly or by towbar, saddle -mount or full-mount
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method, or any combination thereo f, with or without towing a
privately owned vehicle;
18. a. "Employee" means any person, including a minor, in the
service of an employer under any contract of hire or
apprenticeship, written or oral, expressed or implied,
but excluding one whose employmen t is casual and not
in the course of the trade, business, profession, or
occupation of his or her em ployer and excluding one
who is required to perform work for a municipality or
county or the state or federal government on having
been convicted of a crimi nal offense or while
incarcerated. "Employee" shall also include a m ember
of the Oklahoma National Guard while in the
performance of duties only while in response to state
orders and any authorized voluntary or uncompensated
worker, rendering services as a firefighter, law
enforcement officer or emergency management worker .
Travel by a police officer, fireman, or a member of a
first aid or rescue squad, in responding to and
returning from an emergency, shall be deemed to be in
the course of employment.
b. The term "employee" shall not include:
(1) any person for whom an em ployer is liable under
any Act of Congress for providing compensation to
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employees for injuries, disease or death arising
out of and in the course of employment including,
but not limited to, the Federal Employees'
Compensation Act, the Federal Employers'
Liability Act, the Longshore an d Harbor Workers'
Compensation Act and the Jones Act, to the extent
his or her employees are subject to such acts,
(2) any person who is employed in agricul ture,
ranching or horticulture by an employer who had a
gross annual payroll in the preceding calend ar
year of less than One Hundred Thousand Dollars
($100,000.00) wages for agricultural, ranching or
horticultural workers, or any person who is
employed in agriculture, ranching or horticulture
who is not engaged in operation of motorized
machines. This exemption applies to any period
of time for which such employment exists,
irrespective of whether or not the person is
employed in other activities for which the
exemption does not apply. If the person is
employed for part of a year in exempt activities
and for part of a year in nonexempt activities,
the employer shall be responsible for providing
workers' compensation only for the period of time
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for which the person is employed in nonexempt
activities,
(3) any person who is a licensed real estate sales
associate or broker, paid on a commission basis,
(4) any person employed by an employer with five or
fewer total employees, all of whom are related
within the second degree by blood or marriage to
the employer, all of whom are d ependents living
in the household of the employer, or all of whom
are a combination of such relatives and
dependents. If the employer is not a natural
person such relative shall be relat ed within the
second degree by blood or marriage to a person
who owns fifty percent (50%) or more of the
employer, or such dependent shall be in the
household of a person who owns fifty percent
(50%) or more of the employer,
(5) any person employed by an e mployer which is a
youth sports league which qualifies for exemption
from federal income taxation pu rsuant to federal
law,
(6) sole proprietors, members of a partnership,
individuals who are party to a franchise
agreement as set out by the Federal Trade
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Commission franchise disclosure rule, 16 CFR
436.1 through 436.11, memb ers of a limited
liability company who own at least ten percent
(10%) of the capital of the limited liability
company or any stockholder -employees of a
corporation who own ten percent (10 %) or more
stock in the corporation, unless they elect to be
covered by a policy of insurance coveri ng
benefits under the Administrative Workers'
Compensation Act,
(7) any person providing or performing voluntary
service who receives no wages for the servi ces
other than meals, drug or alcohol rehabilitative
therapy, transportation, lodging or reimburseme nt
for incidental expenses except for volunteers
specifically provided for in subparagraph a of
this paragraph,
(8) a person, commonly referred to as an own er-
operator, who owns or leases a truck -tractor or
truck for hire, if the owner-operator actually
operates the truck-tractor or truck and if the
person contracting with the owner -operator is not
the lessor of the truck -tractor or truck.
Provided, however, an owner-operator shall not be
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precluded from workers' compensation coverage
under the Administrati ve Workers' Compensation
Act if the owner-operator elects to participate
as a sole proprietor,
(9) a person referred to as a drive -away owner-
operator who privately owns and utilizes a tow
vehicle in drive-away operations and operates
independently for hir e, if the drive-away owner-
operator actually utilizes the tow vehicle and if
the person contracting with the drive -away owner-
operator is not the lessor of the tow vehicle.
Provided, however, a drive -away owner-operator
shall not be precluded from workers ' compensation
coverage under the Administrative Workers'
Compensation Act if the drive -away owner-operator
elects to participate as a sole proprietor, and
(10) any person who is employed as a domestic servant
or as a casual worker in and about a private h ome
or household, which private home or household had
a gross annual payroll in the preceding calendar
year of less than Fifty Thousand Dollars
($50,000.00) for such workers;
19. "Employer" means a natural person, partnershi p,
association, limited liabili ty company, corporation, and the legal
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representatives of a deceased employer, or the receiver or trustee
of a person, partnership, association, corporation , or limited
liability company, departments, instrumentalities and in stitutions
of this state and di visions thereof, counties and divisions thereof,
public trusts, boards of education and incorporated cities or towns
and divisions thereof, employing a pers on included within the term
"employee" as defined in this section. E mployer may also mean the
employer's workers' compensation insurance carrier, if applicable.
Except as provided otherwise, this act applies to all public and
private entities and institu tions;
20. "Employment" includes work or labor in a trade, business,
occupation or activity carried on by an employer or any authorized
voluntary or uncompensated worker rendering services as a
firefighter, peace officer or emergency management worker;
21. "Evidence-based" means expert-based, literature-supported
and outcomes validated by well-designed randomized trials when such
information is available and which uses the best available evidence
to support medical decision making;
22. "Gainful employmen t" means the capacity to perform
employment for wages for a period of time that is not part-time,
occasional or sporadic;
23. "Idiopathic" means an injury or condition, where neither the
cause, nor the resulting injury bears any special relation to the
work or to the conditions under which the act was being performed and
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though it occurs in the course of the employment, does not arise out
of the employment;
24. "Impaired self-insurer" means a private self -insurer or
group self-insurance association that fails to pay its workers'
compensation obligations, or is financially unable to do so and is
the subject of any proceeding under the Federal Bankruptcy Reform
Act of 1978, and any subseq uent amendments or is the subject of any
proceeding in which a receiver, custodian, liquidator,
rehabilitator, trustee or similar officer ha s been appointed by a
court of competent jurisdiction to act in lieu of or on behalf of
the self-insurer;
24. 25. "Incapacity" means inadequate strength or ability to
perform a work-related task;
25. 26. "Insurance Commissioner" means the Insurance
Commissioner of the State of Oklahom a;
26. 27. "Insurance Department" means the Insurance Department
of the State of Oklah oma;
27. 28. "Intentional act" means an injury occurring only when
the employee is injured as a result of a willful, deliberate and
specific intent to cause such injury and only when the act that was
the proximate cause of the injury was not normally within the
employer-employee relationship and was not an employment risk related
to the business of the employer. Knowledge that the injury was
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substantially certain to result from the conduct shall not constitute
an intentional act;
29. "Major cause" means more than fifty percent (50%) of the
resulting injury, disease or illness. A finding of major cause
shall be established by a preponderan ce of the evidence. A finding
that the workplace was not a major cause of the injury, disease or
illness shall not adversely affect the exclusive remedy provisions
of this act and shall not create a separate cause of action outside
this act;
28. 30. "Maximum medical improvement" means that no further
material improvement would reasonably be expected from medical
treatment or the passage of time;
29. 31. "Medical services" means those services specified in
Section 50 of this title;
30. 32. "Misconduct" shall include the following:
a. unexplained absenteeism or tardiness,
b. willful or wanton indifference to or neglect of the
duties required,
c. willful or wanton breach of any duty required by the
employer,
d. the mismanagement of a position of employment by
action or inaction,
e. actions or omissions that place in jeopardy the
health, life, or property of self or others,
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f. dishonesty,
g. wrongdoing,
h. violation of a law, or
i. a violation of a policy or rule adopted to ensure
orderly work or the safety of self or others;
31.
33. a. (1) "Objective findings" are those findings which
cannot come under the voluntary control of the
patient.
(2) (a) When determining permanent disability, a
physician, any other medical provider, an
administrative law judge, the Commission or
the courts shall not consider complaints of
pain.
(b) For the purpose of making permanent
disability ratings to the spine, physicians
shall use criteria established by the Sixth
Edition of the American Medical Association
"Guides to the Evaluation of Permanent
Impairment".
(3) (a) Objective evidence necessary to prove
permanent disability in occupational hearing
loss cases may be establi shed by medically
recognized and accepted clinical diagnostic
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methodologies, including, but not limited
to, audiological tests that measur e air and
bone conduction thresholds and speech
discrimination ability.
(b) Any difference in the baseline hearing
levels shall be confirmed by subsequent
testing; provided, however, such test shall
be given within four (4) w eeks of the
initial baseline hearing level test but not
before five (5) days after being adjusted
for presbycusis.
b. Medical opinions addressing com pensability and
permanent disability shall be stated within a
reasonable degree of medical certainty;
32. 34. "Official Disability Guidel ines" or "ODG" means the
current edition of the Official Disability Guidelines and the ODG
Treatment in Workers' Comp a s published by the Work Loss Data
Institute;
33. 35. "Permanent disability" means the extent, expressed a s a
percentage, of the loss of a portion of the total physiological
capabilities of the human body as established by competent medical
evidence and based on the Sixth Edition of the American Medical
Association "Guides to the Evaluation of Permanent Impair ment", if
the impairment is con tained therein;
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34. 36. "Permanent partial disability" means a permanent
disability or loss of use after maximum medical improvement has been
reached which prevents the injured employee, who has been released
to return to work by the treating physician, f rom returning to his
or her pre-injury or equivalent job . All evaluations of permanent
partial disability must be suppor ted by objective findings;
35. 37. "Permanent total disability" means, based on objective
findings, incapacity, based upon accidental injury or occupational
disease, to earn wages in any employment for which the employee may
become physically suited and re asonably fitted by education,
training, experience or vocational rehabilitation provided under
this act. Loss of both hands, both fee t, both legs, or both eyes,
or any two thereof, shall constitute permanent total disability;
36. 38. "Preexisting conditio n" means any illness, injury,
disease, or other physical or mental condition, whether or not work -
related, for which medical advice, diagnosis, care or treatment was
recommended or received preceding the date of injury;
37. 39. "Pre-injury or equivalent jo b" means the job that the
claimant was working for the employer at the time the injury
occurred or any other employment offered by t he claimant's employer
that pays at least one hundred percent (100%) of the employee's
average weekly wage;
38. 40. "Private self-insurer" means a private employer that
has been authorized to self -insure its workers' compens ation
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obligations pursuant to t his act, but does not include group self -
insurance associations authorized by this act, or any public
employer that self-insures pursuant to this act;
39. 41. "Prosthetic" means an artificial device used to replace
a part or joint of the body that is lost or injured in an accident
or illness covered by this act;
40. 42. "Scheduled member" or "member" means hands, fingers,
arms, legs, feet, toes, and eyes. In addition, for purposes of the
Multiple Injury Trust Fund only, "sc heduled member" means hearing
impairment;
41. 43. "Scientifically based" involves the application of
rigorous, systematic, and objective procedures to obtain reliable
and valid knowledge relevant to medical testing, diagnoses and
treatment; is adequate to justify the general conclusion s drawn; and
has been accepted by a peer -review journal or approved by a panel of
independent experts through a comparably rigor ous, objective, and
scientific review;
42. 44. "State average weekly wage" means the state avera ge
weekly wage determined by th e Oklahoma Employment Security
Commission in the preceding calendar year. If such determination is
not available, the Commission shall determine the wage annually
after reasonable investigation;
43. 45. "Subcontractor" mean s a person, firm, corporation o r
other legal entity hired by the general or prime contractor to
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perform a specific task for the completion of a work -related
activity;
44. 46. "Surgery" does not include an injection, or the forcing
of fluids beneath the sk in, for treatment or diagnosis;
45. 47. "Surviving spouse" means the employee's spouse by
reason of a legal marriage recognized by the State of Oklahoma or
under the requirements of a common law marriage in this state, as
determined by the Workers' Compen sation Commission;
46. 48. "Temporary partial disability" means an injured
employee who is temporarily unable to perform his or her job, but
may perform alternativ e work offered by the employer;
47. 49. "Time of accident" or "date of accident" means the time
or date of the occurrence of the accidental incident from which
compensable injury, disability, or death results; and
48. 50. "Wages" means money compensation received for
employment at the time of the accident, including the reasonable
value of board, rent, housing, lodging, or s imilar advantage
received from the employer and includes the amount of tips required
to be reported by the employer under Section 6053 of the Internal
Revenue Code and the regulations promulgated pursuant thereto or the
amount of actual tips reported, whic hever amount is greater.
SECTION 21. AMENDATORY 85A O.S. 2021, Section 3, is
amended to read as follows:
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Section 3. A. Every employer and every employee, unless
otherwise specifically provided in th is act, shall be subject and
bound to the provisions of the Administrative Workers' Compensation
Act and every employer shall pay or provide benefits according to
the provisions of this act for the accidental compensable injury or
death of an employee aris ing out of and in the course of his or her
employment, without regard to fault for such injury, if the
employee's contract of employment was made or if the injury occurred
within this state. If an employee makes a claim for an injury in
another jurisdiction, the employee is precluded f rom his or her
right of action under the Administrative Workers' Compensation Act
unless the Workers' Compensation Commission determines that there is
a change in circumstances that creates a good cause to bring the
claim under the Administrative Workers' Compensation Act; provided,
however, that the employee may not receive duplicate benefits to
those received in the foreign jurisdiction and the employee's right
to bring a claim under this act shall be subject to the limitati ons
period for bringing a claim pursuant to paragraph 1 of subsection A
of Section 69 of this title. Nothing in this act shall be construed
to conflict with any valid Act of Congress governing the liability
of employers for injuries received by their empl oyees.
B. The State of Oklahom a accepts the provisions of the Acts of
Congress designated as 40 U.S.C., Section 3172, formerly 40 U.S.C.,
Section 290, and hereby extends the territorial jurisdiction of the
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Administrative Workers' Compensation Act of this state to all lands
and premises within the exterior boundaries of this state which the
Government of the United States of America owns or holds by deed or
act of cession, and to all purchases, projects, buildings,
constructions, improvements and property w ithin the exterior
boundaries of this state belonging to the Government of the United
States of America, in the same manner and to the same extent as if
the premises were under the exclusive jurisdiction of this state,
subject only to the limitations place d thereon by the Acts of
Congress.
C. The Administrative Workers' Compensation Act shall apply
only to claims for injuries and death based on accidents which occur
on or after February 1, 2014.
D. The Workers' Compensation Code in effect before February 1,
2014, shall govern all right s in respect to claims for injuries and
death based on accidents occurring before February 1, 2014.
SECTION 22. AMENDATORY 85A O.S. 2021, Section 5, is
amended to read as follows:
Section 5. A. The rights and remedies granted to an employee
subject to the provisions of the Administrative Workers'
Compensation Act shall be exclusive of all other rights and remedies
of the employee, his legal representative, dependents, next of kin,
or anyone else claiming rights to recovery on beha lf of the employee
against the employer, or any principal, officer, director, employee,
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stockholder, partner, or prime contractor of the employer on account
of injury, illness, or death. Negligent acts of a co -employee may
not be imputed to the employer. No role, capacity, or persona of
any employer, principal, officer, director, employee, or stockholder
other than that existing in the role of employer of the employee
shall be relevant for consideration for purposes of t his act, and
the remedies and right s provided by this act shall be exclusive
regardless of the multiple roles, capacities, or personas the
employer may be deemed to have.
B. Exclusive remedy shall not apply if:
1. An employer fails to secure the payment of compensation due
to the employee as required by this act. An injured employee, or
his or her legal representative in case death results from the
injury, may, at his or her option, elect to claim compensation under
this act or to maintain a legal action in court for damages on
account of the injury or death; or
2. The injury was caused by an intentional tort act committed
by the employer. An intentional tort act shall exist only when the
employee is injured as a result of willful, deliberate, specific
intent of the employer to cause suc h injury. Allegations or proof
that the employer had knowledge that the injury was substa ntially
certain to result from the employer's conduct shall not constitute
an intentional tort. The employee shall plead facts that sh ow it is
at least as likely as it is not that the employer acted with the
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purpose of injuring the employee an employer who owns at least ten
percent (10%) of the business engages in or specifically directs the
act that is the proximate cause of the injury to the employee. An
employee or owner of less than ten percent (10%) of the business
shall not be released from liability pursuant to this section if he
or she engaged in an intentional act that was the proximate cause of
the injury or death. The issue of whether an act is an intentional
tort shall be a question of law.
C. The immunity from civil liability described in subsection A
of this section shall apply regardless of whether the injured
employee is denied compensation or deemed ineligible to receiv e
compensation under this act.
D. If an employer has failed to secure the payment of
compensation for his or her injured employee as provid ed for in this
act, an injured employee, or his or her legal representative if
death results from the injury, may ma intain an action in the
district court for damages on account of such injury.
E. The immunity created by the provisions of this section sha ll
not extend to action against another employer, or its employees, on
the same job as the injured or deceased worke r where such other
employer does not stand in the position of an intermediate or
principal employer to the immediate employer of the injured or
deceased worker.
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F. The immunity created by the provisions of this section shall
not extend to action against a nother employer, or its employe es, on
the same job as the injured or deceased worker even though such
other employer may be considered as st anding in the position of a
special master of a loaned servant where such special master neither
is the immediate employer of the injured or deceas ed worker nor
stands in the position of an intermediate or principal employer to
the immediate employer of th e injured or deceased worker.
G. This section shall not be construed to abrogate the loaned
servant doctrine in any respect other than that descri bed in
subsection F of this section. Nothing in this act shall be
construed to relieve the employer from any other penalty provided
for in this act for failure to secure the payment of compensation
under this act.
H. For the purpose of extending the immu nity of this section,
any architect, professional engineer, or land surveyor shall be
deemed an intermediate or principal employer for services performed
at or on the site of a construction project, but this immunity shall
not extend to the negligent prepa ration of design plans and
specifications.
I. If the employer has failed to secure the payment of
compensation as provided in this act or in the case of an
intentional tort, the injured employee or his or her legal
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representative may maintain an action ei ther before the Commission
or in the district court, but not both.
SECTION 23. AMENDATORY 85A O.S. 2021, Section 13, is
amended to read as follows:
Section 13. A. 1. A mental injury or illness is n ot a
compensable injury unless caused by a physical injury to the
employee, and shall not be considered an injury arising out of and
in the course and scope of employment or compensable unless
demonstrated by a preponderance of the evidence; provided, howe ver,
that this physical injury limitation shall not apply to any victim
of a crime of violence .
2. No mental injury or illness under this section shall be
compensable unless it is also diagnosed by a licensed psychiatrist
or psychologist and unless the dia gnosis of the condition meets the
criteria established in the most current issue of the Diagnostic and
Statistical Manual of Mental Disorders , Fifth Edition (DSM-5).
B. 1. Notwithstanding any other provision of this act, where a
claim is for mental injur y or illness, the employee sha ll be limited
to twenty-six (26) weeks of disability benefits unless it is shown
by clear and convincing evidence t hat benefits should continue for a
set period of time, not to exceed a total of fifty -two (52) weeks.
a. In cases where death results direc tly from the mental
injury or illness within a period of one (1) year,
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compensation shall be paid the dependents as provid ed
in other death cases unde r this act.
b. Death directly or indirectly related to the mental
injury or illness occurring one (1) year or more from
the incident resulting in the mental injury or illness
shall not be a compensable injury.
SECTION 24. AMENDATORY 85A O.S. 2021, Section 35, is
amended to read as follows:
Section 35. A. 1. Every employer shall secu re compensation as
provided under this act to its employees for compensable injuries
without regard to fault.
2. There shall be no liability for compensation under this act
where the injury or death was substantially occasion ed by the
willful intention as a result of an intentional act of the injured
employee to bring about such compensable injury or death.
B. The primary obligation to pay compensation is on the
employer, and the procurement of a policy of insurance by an
employer to cover the obligation in respect to this act shall not
relieve the employer of the obligation.
SECTION 25. AMENDATORY 85A O.S. 2021, Section 45, is
amended to read as follows:
Section 45. A. Temporary Total Disability.
1. If the injured employee is t emporarily unable to perform his
or her job or any alternative work offered by the employer, he or
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she shall be entitled to receive compensation equal to seventy
percent (70%) of the injured employee's average weekly wage, but not
to exceed the state avera ge weekly wage, for one hundred fifty-six
(156) weeks. Provided, there shall be no payment for the first
three (3) days of the initial period o f temporary total disability.
If an administrative law judge finds that a consequ ential injury has
occurred and that additional time is needed to reach maximum medical
improvement, temporary total disability may continue for a period of
not more than an additional fifty-two (52) weeks. Such finding
shall be based upon a showing of med ical necessity by clear and
convincing evidence. An employer shall have the right to recover
any overpayment of temporary total disability payments from a
subsequent permanent partial disability award if the offset is
deemed justified by the Workers' Comp ensation Commission.
2. When the injured employee is released from active medical
treatment by the treating physician for all body parts found by the
Commission to be injure d, or in the event that the employee, without
a valid excuse, misses three consecu tive medical treatment
appointments, fails to comply with medical orders of the treating
physician, or otherwise abandons medical care, the employer shall be
entitled to terminate temporary total disability by notifying the
employee, or if represented, his or her counsel. If, however, an
objection to the termination is filed by the employee within ten
(10) days of termination, the Commission shall set the matter within
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twenty (20) days for a determination if temporary total disability
compensation shall be reinstated. The temporary to tal disability
shall remain terminated until such time as the employee complies
with medical orders of the treating physician. Notwithstanding the
provisions of this paragraph, benefits under this subsection shall
be permanently terminated by order of the Commission if the employee
is noncompliant or abandons treatment for sixty (60) days, or if
benefits under this subsection have been suspended under this
paragraph at least two times. The administrative law judge may
appoint an independent medical examin er to determine if further
medical treatment is reasonable and necessary. The independent
medical examiner shall not provide treatment to the i njured worker,
unless agreed upon by the parties.
B. Temporary Partial Disability .
1. If the injured employee is temporarily unable to perform his
or her job, but may perform alternative work offered by the
employer, he or she shall be entitled to receiv e compensation equal
to seventy percent (70%) of the difference between the injure d
employee's average weekly wa ge before the injury and his or her
weekly wage for performing alternative work after the injury, but
only if his or her weekly wage for perform ing the alternative work
is less than the temporary total disability rate. The in jured
employee's actual earnin gs plus temporary partial disability
compensation shall not exceed the temporary total disability rate.
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2. Compensation under this subsection m ay not exceed fifty-two
(52) weeks.
3. If the employee refuses to perform the alt ernative work
offered by the employee, he or she shall not be entitled to benefits
under subsection A of this section or under this section.
C. Permanent Partial Disability.
1. A permanent partial disability award or combination of
awards granted an inju red worker may not exceed a pe rmanent partial
disability rating of one hundred percent (100%) to any body part or
to the body as a whole. The determination of permanent part ial
disability shall be the responsibility of the Commission through its
administrative law judges. Any claim b y an employee for
compensation for permanent partial disability must be supported by
competent medical testimony of a medical doctor, osteopathi c
physician, or chiropractor, and shall be supported by objective
medical findings, as defined in this act. The opinion of the
physician shall include employee's percentage of permanent partial
disability and whether or not the disability is job -related and
caused by the accidental injury or occupational disease. A
physician's opinion of the nature and extent of p ermanent partial
disability to parts of the body other than scheduled members must be
based solely on criteria established by the Sixth Edition of the
American Medical Association's "Guides to the Evaluation of
Permanent Impairment". A copy of any written evaluation shall be
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sent to both parties within seven (7) days of issuance. Medical
opinions addressing compensability and permanent disabilit y must be
stated within a reasonable degree of medical certainty. Any party
may submit the report of an evaluat ing physician.
2. Permanent partial disability shall not be allowed to a part
of the body for which no medical treatment has been received. A
determination of permanent partial disability made by the Commission
or administrative law judge which is not su pported by objective
medical findings provided by a treating physician who is a medical
doctor, doctor of osteopathy, chiropractor or a qualifie d
independent medical examiner shall be considered an abuse of
discretion.
3. The examining physician shall not deviate from the Guides
except as may be specifically provided for in the Guides.
4. In cases of permanent partial disability, the compensatio n
shall be seventy percent (70%) of the employee's average weekly
wage, not to exceed Three Hundred Fifty Dollar s ($350.00) per week
which shall increase to Three Hundred Sixty Dollars ($360.00) per
week on July 1, 2021 , for a term. Beginning on or after January 1,
2024, compensation for permanent partial disability shall be seventy
percent (70%) of the employee's average weekly wage, not to exceed an
amount equal to forty percent (40%) of the state 's average weekly
wage, rounded to the nearest dollar. Rates to be subsequently
adjusted January 1, annually for injuries occurring on or a fter the
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date of the adjustmen t. Rate shall be established for each claim
based upon the date of injury. Term not to exceed a total of three
hundred sixty (360) weeks for the body as a whole.
5. Assessments pursuant to Sections 31, 98 and 122 of this
title shall be calculated based upon the amount of the permanent
partial disability award.
6. Previous Disability: The fact that an employee has suffered
previous disability or received compensation therefor shall not
preclude the employee from compensatio n for a later accidental
personal injury or occupational disease. In the event there exists
a previous permanent partial disability, including a previous non -
work-related injury or condition which produced permanent partial
disability and the same is aggr avated or accelerated by an
accidental personal injury or occupational disease, compensation for
permanent partial disability shall be only for such amount as was
caused by such accidental personal injury or occupational disease
and no additional compensat ion shall be allowed for the p reexisting
disability or impairment. Any such reduction shall not apply to
temporary total disability, nor shall it apply to compens ation for
medical treatment. If workers' compensation benefits have
previously been awarded through settlement or judicial or
administrative determination in Oklahoma, the percentage basis of
the prior settlement or award shall conclusively establish the
amount of permanent partial disability determined to be preexisting.
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If workers' compensatio n benefits have not previously been awarded
through settlement or judicial or administrative determination in
Oklahoma, the amount of preexisting permanent partial disability
shall be established by competent evidence and determined by the
Commission.
7. No payments on any permanent p artial disability order shall
begin until payments on any preexisting permanent partial disability
orders have been completed.
8. The whole body shall represent a maximum of three hundred
sixty (360) weeks.
9. The permanent partial disability rate of com pensation for
amputation or permanent total loss of use of a scheduled member
specified in Section 46 of this title shall be seventy percent (70%)
of the employee's average weekly wage, not to exceed Three Hundred
Fifty Dollars ($350.00), with an increase to Three Hundred Sixty
Dollars ($360.00) on July 1, 2021,. Beginning on or after January 1,
2024, compensation for permanent partial disability shall be seventy
percent (70%) of the employee's average weekly wage, not to exceed an
amount equal to forty pe rcent (40%) of the state's average weekly
wage, rounded to the nearest dollar. Rates to be subsequently
adjusted January 1, annually for injuries occurring on or after the
date of the adjustment. Rate shall be established fo r each claim
based upon the date of injury and multiplied by the number of weeks
set forth for the member in Section 46 of this title, regardless of
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whether the injured employee is able to return to his or her pre -
injury or equivalent job.
10. An injured employee who is eligible for p ermanent partial
disability under this subsection shall be entitled to receive
vocational rehabilitation services provided by a technology center
or public secondary school offering vocational -technical education
courses, or a member institution of The Okl ahoma State System of
Higher Education, which shall include retraining and job placement
to restore the employee to gainful employment. Vocational
rehabilitation services or training shall not extend for a period of
more than fifty-two (52) weeks.
D. Permanent Total Disability.
1. In case of total disability adjudged to be permanent,
seventy percent (70%) of the employee's average weekly wages, but
not in excess of the state's average weekly wage, shall be paid to
the employee during the continuance of t he disability until such
time as the employee reaches the age of maximum Social Security
retirement benefits or for a period of fifteen (15) years, whichever
is longer. In the event the claimant dies of causes unrelated to
the injury or illness, benefits shall cease on the date of death.
Provided, however, any person entitled to revive the action shall
receive a one-time lump-sum payment equal to twenty -six (26) weeks
of weekly benefits for permanent total disability awarded the
claimant. If more than on e person is entitled to revive the claim,
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the lump-sum payment shall be evenly divided between or among such
persons. In the event the Commission awards both permanent partial
disability and permanent total disability benefit s, the permanent
total disability award shall not be due until the permanent partial
disability award is paid in full. If otherwise qualified according
to the provisions of this act, permanent total disability benefits
may be awarded to an employee who ha s exhausted the maximum period
of temporary total disability even though the employee has not
reached maximum medical improvement.
2. The Workers' Compensation Commission shall annually review
the status of any employee receiving benefits for permanent to tal
disability against the las t employer. The Commission shall require
the employee to annually file an affidavit under penalty of perjury
stating that he or she is not and has not been gainfully employed
and is not capable of gainful employment. Failure to file such
affidavit shall result in suspension of benefits; provided, however,
reinstatement of benefits may occur after proper hearing before the
Commission.
E. 1. The Workers' Compensation Commission may hire or
contract for a Vocational Rehabilita tion Director to oversee the
vocational rehabilitation program of the Commission.
2. Upon the request of either party, an administrative law
judge shall determine if it is appropriate for a claimant to receive
vocational rehabilitation training or service s. If appropriate, the
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administrative law judge shall refer the employee to a qualified
expert for evaluation of the practicability of, need for and kind of
rehabilitation services or training necessary and appropriate in
order to restore the employee to gainful employment. The cost of
the evaluation shall be paid by the employer.
3. Upon receipt of such report, and after affording all parties
an opportunity to be heard, the administrative law judge shall order
that any rehabilitation services or trainin g, recommended in the
report, or such other rehabilitation services or training as the
administrative law judge may deem necessary, provided the employee
elects to receive such services, shall be provided at the expense of
the employer. Except as otherwis e provided in this subsection,
refusal to accept rehabilitation services by the employee shall in
no way diminish any benefits allowable to an employee.
4. The administrative law judge may order vocational
rehabilitation before the injured employee reache s maximum medical
improvement, if the treating physician believes that it is likely
that the employee's injury will prevent the employee from returning
to his or her former employment. In granting early benefits for
vocational rehabilitation, the Commissi on shall consider temporary
restrictions and the likelihood that such rehabilitation will return
the employee to gainful employment earlier than if such benefits are
granted after the permanent partial disability hearing in the claim.
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5. Vocational rehabi litation services or training shall not
extend for a period of more than fifty-two (52) weeks. A request
for vocational rehabilitation services or training shall be filed
with the Commission by an interested party not later than sixty (60)
days from the date of receiving permanent dis ability that prevents
the injured employee from returning to his or her pre -injury or
equivalent position.
6. If rehabilitation requires residence at or near the facility
or institution which is away from the employee's custo mary
residence, reasonable cos t of the employee's board, lodging, travel,
tuition, books and necessary equipment in training shall be paid for
by the insurer in addition to weekly compensation benefits to which
the employee is otherwise entitled under the Administrative Workers'
Compensation Act.
7. During the period when an employee is actively and in good
faith being evaluated or participating in a retraining or job
placement program for purposes of evaluating permanent total
disability status, the emplo yee shall be entitled to recei ve
benefits at the same rate as the employee's temporary total
disability benefits for an additional fifty -two (52) weeks. All
tuition related to vocational rehabilitation services shall be paid
by the employer or the employe r's insurer on a periodic basi s
directly to the facility providing the vocational rehabilitation
services or training to the employee.
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F. Disfigurement.
1. If an injured employee incurs serious and permanent
disfigurement to any part of the body, the Com mission may award
compensation to the injured employee in an amount not to exceed
Fifty Thousand Dollars ($50,000.00).
2. No award for disfigurement shall be entered until twelve
(12) months after the injury unless the treating physician deems the
wound or incision to be fully healed.
3. An injured employee shall not be entitled to compensation
under this subsection if he or she receives an award for permanent
partial disability to the same part of the body.
G. Benefits for a single -event injury shall be determined by
the law in effect at the time of injury. Benefits for a cumulative
trauma injury or occupational disease or illness shall be determined
by the law in effect at the time the employee knew or reasonably
should have known that the injury, occu pational disease or illness
was related to work activity. Benefits for death shall be
determined by the law in effect at the time of death.
SECTION 26. AMENDATORY 85A O.S. 2021, Section 46, is
amended to read as follows:
Section 46. A. An injured employee wh o is entitled to receive
permanent partial disability compensation under Section 45 of this
title shall receive compensation for each part of the body in
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accordance with the number of weeks for the scheduled loss set forth
below.
1. Arm amputated at the e lbow, or between the elbow and
shoulder, two hundred seventy -five (275) weeks;
2. Arm amputated between the elbow and wrist, two hundred
twenty (220) weeks;
3. Leg amputated at the knee, or between the knee and the hip,
two hundred seventy-five (275) weeks;
4. Leg amputated between the knee and the ankle, two hundred
twenty (220) weeks;
5. Hand amputated, two hundred twenty (220) weeks;
6. Thumb amputated, sixty -six (66) weeks;
7. First finger amputated, thirty -nine (39) weeks;
8. Second finger amput ated, thirty-three (33) weeks;
9. Third finger amputated, twenty -two (22) weeks;
10. Fourth finger amputated, seventeen (17) weeks;
11. Foot amputated, two hundred twenty (220) weeks;
12. Great toe amputated, thirty -three (33) weeks;
13. Toe other than great toe amputated, eleven (11) weeks;
14. Eye enucleated, in which there was useful vision, two
hundred seventy-five (275) weeks;
15. Loss of hearing of one ear, one hundred ten (110) weeks;
16. Loss of hearing of both ears, three hundred thirty (33 0)
weeks; and
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17. Loss of one testicle, fifty -three (53) weeks; loss of both
testicles, one hundred fifty -eight (158) weeks.
B. The permanent partial disability rate of compensation for
amputation or permanent total loss of use of a scheduled member
specified in this section shall be seventy percent (70%) of the
employee's average weekly wage, not to exceed Three Hundred
Fifty Dollars ($350.00) with an increase to Three Hundred Sixty
Dollars ($360.00) on July 1, 2021 ,. Beginning on or after
January 1, 2024, compensation for permanent partial disability
shall be seventy percent (70%) of the employee 's average weekly
wage, not to exceed an amount equal to forty percent (40%) of
the state's average weekly wage, rounded to the nearest dollar.
Rates to be subsequently adjusted January 1, annually for
injuries occurring on or after the date of the adjustment.
Rate shall be established for each claim based upon the date of
injury multiplied by the number of weeks as set forth in thi s
section, regardless of whether or not the injured employee is
able to return to his or her pre -injury job.
C. Other cases: In cases in which the Workers' Compensation
Commission finds an injury to a part of the body not specifically
covered by the foregoing provisions of this secti on, the employee
may be entitled to compensation for permanent partial disability.
The compensation ordered paid shall be seventy percent (70%) of the
employee's average weekly wage, not to exceed Three Hundred Fifty
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Dollars ($350.00) with an increase to Three Hundred Sixty Dollars
($360.00) on July 1, 2021 ,. Beginning January 1, 2024, an amount
equal to forty percent (40%) of the state 's average weekly wage,
rounded to the nearest whole dollar. Rate to be subsequently
adjusted January 1, annually, for injuries occurring on or after the
date of the adjustment for the number of weeks which the partial
disability of the employee bears to three hundred fifty (350) three
hundred sixty (360) weeks.
D. 1. Compensation for amputat ion of the first phalang e of a
digit shall be one-half (1/2) of the compensation for the amputation
of the entire digit.
2. Compensation for amputation of more than one phalange of a
digit shall be the same as for amputation of the entire digit.
E. 1. Compensation for the perm anent loss of eighty percent
(80%) or more of the vision of an eye shall be the same as for the
loss of an eye.
2. In all cases of permanent loss of vision, the use of
corrective lenses may be taken into consideration in evaluating the
extent of loss of vision.
F. Compensation for amputation or loss of use of two or more
digits or one or more phalanges of two or more digits of a hand or a
foot may be proportioned to the total loss of use of the hand or the
foot occasioned thereby b ut shall not exceed the compen sation for
total loss of a hand or a foot.
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G. Compensation for permanent total loss of use of a member
shall be the same as for amputation of the member.
H. The sum of all permanent partial disability awards,
excluding awards against the Multiple Injury Trust Fund, shall not
exceed three hundred fifty (350) three hundred sixty (360) weeks.
SECTION 27. AMENDATORY 85A O.S. 2021, Section 47, is
amended to read as follows:
Section 47. A. Time of death. If death does not result within
one (1) year from the date of the accident or within the first three
(3) years of the period for compensation payments fixed by the
compensation judgment, a rebuttable presumption shall arise that the
death did not result f rom the injury.
B. Common law spouse. A common law spouse shall not be
entitled to benefits under this section unless he or she obtains an
order from the Workers' Compensation Commission ruling that a common
law marriage existed between the decedent and the surviving spouse.
The ruling by the Commission shall be exclusive in regard to
benefits under this section regardless of any district court
decision regarding the probate of the decedent's estate.
C. Beneficiaries - Amounts. If an injury or occupati onal
illness causes death, weekly income benefits shall be payable as
follows:
1. If there is a surviving spouse, a lump -sum payment of One
Hundred Thousand Dollars ($100,000.00) and seventy percent (70%) of
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the lesser of the deceased employee's average w eekly wage and the
state average weekly wage. In addition to the benefits theretofore
paid or due, two (2) years' indemnity benefit in one lump sum shall
be payable to a surviving spouse upon remarriage;
2. If there is a surviving spouse and a child or c hildren, a
lump-sum payment of Twenty-five Thousand Dollars ($25,000.00) and
fifteen percent (15%) of the lesser of the deceased employee's
average weekly wage and the state average weekly wage to each child.
If there are more than two children, each chil d shall receive a pro
rata share of Fifty Thousand Dollars ($50,000.00) and thirty percent
(30%) of the deceased employee's average weekly wage;
3. If there is a child or children and no surviving spouse, a
lump-sum payment of Twenty -five Thousand Dollars ($25,000.00) and
fifty percent (50%) of the lesser of the deceased employee's average
weekly wage and the state average weekly wage to each child. If
there are more than two children, each child shall receive a pro
rata share of one hundred percent (100% ) of the lesser of the
deceased employee's average weekly wage and the state average weekly
wage. With respect to the lump -sum payment, if there are more than
six children, each child shall receive a pro rata share of One
Hundred Fifty Thousand Dollars ($ 150,000.00);
4. If there is no surviving spouse or children, each legal
guardian, if financially dependent on the employee at the time of
death, shall receive twenty-five percent (25%) of the lesser of the
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deceased employee's average weekly wage and the s tate average weekly
wage until the earlier of death, becoming eligible for Social
Security, obtaining full -time employment, or five (5) years from the
date benefits under this section begin If there is no surviving
spouse or children, Five Thousand Dollars ($5,000.00) shall be paid
to the parents and shall be divided to share and share alike;
5. If there is no surviving spouse, children or parents, to the
brothers, sisters, grandparents and grandchildren shall be paid Five
Thousand Dollars ($5,000.00) . If there should be more than one of
such dependents, the total benefits payable for the benefit of such
dependents shall be divided to share and share alike ;
6. If there is no surviving spouse, children, parents,
brothers, sisters, grandparents or grandchildren, to each legal
guardian, if financially dependent on the employee at the time of
death and upon proof of pecuniary loss shall receive an amount not
to exceed Five Thousand Dollars ($5 ,000.00); and
5. 7. The employer shall pay the actual funeral expen ses, not
exceeding the sum of Ten Thousand Dollars ($10,000.00).
D. The weekly income benefits payable to the surviving spouse
under this section shall continue while the surviving spouse remains
unmarried. In no event shall this spousal weekly income be nefit be
diminished by the awa rd to other beneficiaries. The weekly income
benefits payable to any child under this section shall terminate on
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the earlier of death, marriage, or reaching the age of eighteen
(18). However, if the child turns eighteen (18) and is:
1. Enrolled as a ful l-time student in high school or is being
schooled by other means pursuant to the Oklahoma Constitution;
2. Enrolled as a full -time student in any accredited
institution of higher education or vocational or technology
education; or
3. Physically or menta lly incapable of self-support,
then he or she may co ntinue to receive weekly income benefits under
this section until the earlier of reaching the age of twenty -three
(23) or, with respect to paragraphs 1 and 2 of this subsecti on, no
longer being enrolled a s a student, and with respect to paragraph 3
of this subsection, becoming capable of self -support.
E. If any member of the class of beneficiaries who receive a
pro rata share of weekly income benefits becomes ineligible to
continue to receive benefits, th e remaining members of the class
shall receive adjusted weekly income benefits equal to the new class
size.
F. To receive benefits under this section, a beneficiary or his
or her guardian, if applicable, shall file a proof of loss form with
the Commission. All questions of dependency shall be determined a s
of the time of the injury. The employer shall initiate payment of
benefits within fifteen (15) days of the Commission's determination
of the proper beneficiaries. The Com mission shall appoint a
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guardian ad litem to represent known and unknown minor chi ldren and
the guardian ad litem shall be paid a reasonable fee for his or her
services.
SECTION 28. AMENDATORY 85A O.S. 2021, Section 50, is
amended to read as follows:
Section 50. A. The employer shall promptly provide an injured
employee with medical, surgical, hospital, optometric, podiatric,
chiropractic and nursing services, along with any medicine,
crutches, ambulatory devices, artificial limbs , eyeglasses, contact
lenses, hearing aids, and other apparatus as may be reasonably
necessary in connection with the injury received by the employee.
The employer shall have the right to choose the treating physician
or chiropractor.
B. If the employer fails or neglects to provide m edical
treatment within five (5) days after actual knowledge is received of
an injury, the injured employee may select a physician or
chiropractor to provide medical treatment at the expense of the
employer; provided, however, that the injured employee, or another
in the employee's behalf, may obtain emergency treatment at the
expense of the employer where such emergency treatment is not
provided by the employer.
C. Diagnostic tests shall not be repeated sooner than six (6)
months from the date of the test unless agreed to by the parties or
ordered by the Commission for good cause shown.
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D. Unless recommended by the treating doctor or chiropractor at
the time claimant reaches maximum medical improvement or by an
independent medical examiner, continuing med ical maintenance shall
not be awarded by the Commission. The employer or insurance carrier
shall not be responsible for continuing medical maintenance or pain
management treatment that is outside the parameters established by
the Physician Advisory Commit tee or ODG. The employer or insurance
carrier shall not be responsible for continuing medical maintenance
or pain management treatment not previously ordered by the
Commission or approved in advance by the employer or insuran ce
carrier.
E. An employee claiming or entitled to benefits under the
Administrative Workers' Compensation Act this act, shall, if ordered
by the Commission or requested by the employer or insurance carrier,
submit himself or herself for medical examinati on. If an employee
refuses to submit himself or herself to examination, his or her
right to prosecute any proceeding under the Administrative Workers'
Compensation Act this act shall be suspended, and no compensation
shall be payable for the period of suc h refusal.
F. For compensable injuries resulting in the use of a medical
device, ongoing service for the medical device shall be provided in
situations including, but not limited to, medical device battery
replacement, ongoing medication refills related t o the medical
device, medical device repair, or medical device replacement.
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G. The employer shall reimburse the employee for the actual
mileage in excess of twenty (20) miles round trip to and from the
employee's home to the location of a medical service provider for
all reasonable and necessary treatment, for an evaluation of an
independent medical examiner and for any evaluation made at the
request of the employer or insurance carrier. The rate of
reimbursement for such travel expense shall be the offic ial
reimbursement rate as esta blished by the State Travel Reimbursement
Act. In no event shall the reimbursement of travel for medical
treatment or evaluation exceed six hundred (600) miles round trip.
H. Fee Schedule.
1. The Commission shall conduct a review and update of the
Current Procedural Terminology (CPT) in the Fee Schedule every two
(2) years pursuant to the provisions of paragraph 14 of this
subsection. The Fee Schedule shall establish the maximum rates that
medical providers shall be reimbur sed for medical care provided to
injured employees including, but not limited to, charges by
physicians, chiropractors, dentists, counselors, hospitals,
ambulatory and outpatient facilities, clinical laboratory services,
diagnostic testing services, and am bulance services, and charges for
durable medical equipment, prosthetics, orthotics, and supplies.
The most current Fee Schedule established by the Administrator of
the Workers' Compensation Court prior to February 1, 2014, shall
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remain in effect, unless or until the Legislature appro ves the
Commission's proposed Fee Schedule.
2. Reimbursement for medical care shall be prescribed and
limited by the Fee Schedule. The director of the Employees Group
Insurance Division of the Office of Management and Enterp rise
Services shall provide th e Commission such information as may be
relevant for the development of the Fee Schedule. The Commission
shall develop the Fee Schedule in a manner in which quality of
medical care is assured and maintained for injured employ ees. The
Commission shall giv e due consideration to additional requirements
for physicians treating an injured worker under the Administrative
Workers' Compensation Act, including, but not limited to,
communication with claims representatives, case manage rs, attorneys,
and representatives of employers, and the additional time required
to complete forms for the Commission, insurance carriers, and
employers.
3. In making adjustments to the Fee Schedule, the Commission
shall use, as a benchmark, the reimburs ement rate for each Current
Procedural Terminology (CPT) code provided for in the fee schedule
published by the Centers for Medicare and Medicaid Services of the
U.S. Department of Health and Human Services for use in Oklahoma
(Medicare Fee Schedule) on th e effective date of this secti on,
workers' compensation fee schedules employed by neighboring states,
the latest edition of "Relative Values for Physicians" (RVP), usual,
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customary and reasonable medical payments to workers' compensation
health care providers in the same trade area for comparable
treatment of a person with similar injuries, and all other data the
Commission deems relevant. For services not valued by CMS, the
Commission shall establish values based on the usual, customary and
reasonable medical payments to health care p roviders in the same
trade area for comparable treatment of a person with similar
injuries.
a. No reimbursement shall be allowed for any magnetic
resonance imaging (MRI) unless the MRI is provided by
an entity that meets Medic are requirements for the
payment of MRI services or is accredited by the
American College of Radiology, the Intersocietal
Accreditation Commission or the Joint Commission on
Accreditation of Healthcare Organizations. For all
other radiology procedures, th e reimbursement rate
shall be the lesser of the reimbursement rate allowed
by the 2010 Oklahoma Fee Schedule and two hundred
seven percent (207%) of the Medicare Fee Schedule.
b. For reimbursement of medical services for Evaluation
and Management of injure d employees as defined in the
Fee Schedule adopted by the Commission, the
reimbursement rate shall not be less than one hundred
fifty percent (150%) of the Medicare Fee Schedule.
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c. Any entity providing durable medical equipment,
prosthetics, orthotics or supplies shall be accredited
by a CMS-approved accreditation organization. If a
physician provides durable medical equipment,
prosthetics, orthotics, prescription drugs, or
supplies to a patient ancillary to the patient's
visit, reimbursement shall be no more than ten percent
(10%) above cost.
d. The Commission shall develop a reasonable stop -loss
provision of the Fee Schedule to provide for adequate
reimbursement for treatment for major burns, severe
head and neurological injuries, multiple system
injuries, and other catastrophic inju ries requiring
extended periods of intensive care. An employer or
insurance carrier shall have the right to audit the
charges and question the reasonableness and necessity
of medical treatment contained in a bill for treatmen t
covered by the stop-loss provision.
4. The right to recover charges for every type of medical care
for injuries arising out of and in the course of covered employment
as defined in the Administrative Workers' Compensation Act shall lie
solely with the Commission. When a medical car e provider has
brought a claim to the Commission to obtain payment for services, a
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party who prevails in full on the claim shall be entitled to
reasonable attorney fees.
5. Nothing in this section shall prevent an employer, i nsurance
carrier, group self-insurance association, or certified workplace
medical plan from contracting with a provider of medical care for a
reimbursement rate that is greater than or less than limits
established by the Fee Schedule.
6. A treating physi cian may not charge more than Four Hundred
Dollars ($400.00) per hour for preparation for or testimony at a
deposition or appearance before the Commission in connection with a
claim covered by the Administrative Workers' Compensation Act.
7. The Commission's review of medical and trea tment charges
pursuant to this section shall be conducted pursuant to the Fee
Schedule in existence at the time the medical care or treatment was
provided. The judgment approving the medical and treatment charges
pursuant to this section shall be enforcea ble by the Commission in
the same manner as provided in the Administrative Workers'
Compensation Act for the enforcement of other compensation payments.
8. Charges for prescription drugs dispensed by a pharmacy shall
be limited to ninety percent (90%) of the average wholesale price of
the prescription, plus a dispensing fee of Five Dollars ($5.00) per
prescription. "Average wholesale price" means the amount determined
from the latest publication designated by the Commission.
Physicians shall prescribe an d pharmacies shall dispense generic
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equivalent drugs when available. If the National Drug Code, or
"NDC", for the drug product dispensed is for a repackaged drug, then
the maximum reimbursement shall be the lesser of the orig inal
labeler's NDC and the low est-cost therapeutic equivalent drug
product. Compounded medications shall be billed by the compounding
pharmacy at the ingredient level, with each ingredient identified
using the applicable NDC of the drug product, and the c orresponding
quantity. Ingredients with no NDC area are not separately
reimbursable. Payment shall be based on a sum of the allowable fee
for each ingredient plus a dispensing fee of Five Dollars ($5.00)
per prescription.
9. When medical care includes p rescription drugs dispensed by a
physician or other medical care provider and the NDC for the drug
product dispensed is for a repackaged drug, then the maximum
reimbursement shall be the lesser of the original labeler's NDC and
the lowest-cost therapeutic equivalent drug product. Paym ent shall
be based upon a sum of the allowable fee for each ingredient plus a
dispensing fee of Five Dollars ($5.00) per prescription. Compounded
medications shall be billed by the compounding pharmacy.
10. Implantables are paid in addition to procedural
reimbursement paid for medical or surgical services. A
manufacturer's invoice for the actual cost to a physician, hospital
or other entity of an implantable device shall be adjusted by the
physician, hospital or other entity to reflect, at the time
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implanted, all applicable discounts, rebates, considerations and
product replacement programs and shall be provided to the payer by
the physician or hospital as a condition of payment for the
implantable device. If the physician, or an entity in which the
physician has a financial interest other than an ownership interest
of less than five percent (5%) in a publically publicly traded
company, provides implantable devices, this relationship shall be
disclosed to patient, employer, i nsurance company, third -party
commission, certified workplace medical plan, case managers, and
attorneys representing claimant and defendant. If the physician, or
an entity in which the physician has a financial interest other than
an ownership interest o f less than five percent (5%) in a publicly
traded company, buys and resells implantable devices to a hospital
or another physician, the markup shall be limited to ten percent
(10%) above cost.
11. Payment for medical care as required by the Administrativ e
Workers' Compensation Act sh all be due within forty-five (45) days
of the receipt by the employer or insurance carrier of a complete
and accurate invoice, unless the employer or insurance carrier has a
good-faith reason to request additional information about such
invoice. Thereafter, the Commission may assess a penalty up to
twenty-five percent (25%) for any amount due under the Fee Schedule
that remains unpaid on the finding by the Commission that no good -
faith reason existed for the delay in payment. If the Commission
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finds a pattern of an employer or insurance carrier willfully and
knowingly delaying payments for medical care, the Commission may
assess a civil penalty of not more than Five Thousand Dollars
($5,000.00) per occurrence.
12. If an employee fails to appear for a sche duled appointment
with a physician or chiropractor, the employer or insurance company
shall pay to the physician or chiropractor a reasonable charge, to
be determined by the Commission, for the missed appointment. In the
absence of a good-faith reason for missing the appointment, the
Commission shall order the employee to reimburse the employer or
insurance company for the charge.
13. Physicians or chiropractors providing treatment under the
Administrative Workers' Compensati on Act shall disclose under
penalty of perjury to the Commission, on a form prescribed by the
Commission, any ownership or interest in any health care facility,
business, or diagnostic center that is not the physician's or
chiropractor's primary place of b usiness. The disclosure shall
include any employee leasing arrangement between the physician or
chiropractor and any health care facility that is not the
physician's or chiropractor's primary place of business. A
physician's or chiropractor's failure to disclose as required by
this section shall be grounds for the Commission to disqualify the
physician or chiropractor from providing treatment under the
Administrative Workers' Compensation Act.
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14. a. Beginning on May 28, 2019, the Commission shall
conduct an evaluation of the Fee Sche dule, which shall
include an update of the list of Current Procedural
Terminology (CPT) codes, a line item adjustment or
renewal of all rates, and amendment as needed to the
rules applicable to the Fee Schedule.
b. The Commission shall contract with an ext ernal
consultant with knowledge of workers' compensation fee
schedules to review regional and nationwide
comparisons of Oklahoma's Fee Schedule rates and date
and market for medical services. The consultant shall
receive written and oral comment from empl oyers,
workers' compensation medical service and insurance
providers, self-insureds, group self -insurance
associations of this state a nd the public. The
consultant shall submit a report of its findings and a
proposed amended Fee Schedule to the Commission .
c. The Commission shall adopt the proposed amended Fee
Schedule in whole or in part and make any additional
updates or adjustments. The Commission shall submit a
proposed updated and adjusted Fee Schedule to the
President Pro Tempore of the Senate, the Speaker of
the House of Representatives and the Governor. The
proposed Fee Schedule shall become effective on July 1
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following the legislative session, if approved by
Joint Resolution of the Legislature during the session
in which a proposed Fee Schedule is submitted.
d. Beginning on May 28, 2019, an external evaluation
shall be conducted and a proposed amended Fee Schedule
shall be submitted to the Legislature for approval
during the 2020 legislative session. Thereafter, an
external evaluation shall be c onducted and a proposed
amended Fee Schedule shall be submitted to the
Legislature for approval every two (2) years.
I. Formulary. The Commission by rule shall adopt a closed
formulary. Rules adopted by the Commission shall allow an appeals
process for claims in which a treating doctor determines and
documents that a drug not included in the formulary is necessary to
treat an injured employee's compensable injury. The Commission by
rule shall require the use of generic phar maceutical medications and
clinically appropriate over-the-counter alternatives to prescription
medications unless otherwise specified by the prescribing doctor, in
accordance with applicable state law.
SECTION 29. AMENDATORY 85A O .S. 2021, Section 69, is
amended to read as follows:
Section 69. A. Time for Filing.
1. A claim for benefits under this act, other than an
occupational disease, shall be barred unless it is filed with the
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Workers' Compensation Com mission within one (1) year from the date
of the injury or, if the employee has received benefits under this
title for the injury, six (6) months from the date of the last
issuance of such benefits payment of indemnity benefits or date of
service for medical treatment, whichever is later. For purposes of
this section, the date of the injury shall be defined as the date an
injury is caused by an accident as set forth in paragraph 9 of
Section 2 of this title.
2. a. A claim for compensation for disability on account of
injury which is either an occupational di sease or
occupational infection shall be barred unless filed
with the Commission within two (2) years from the date
of the last injurious exposure to the hazards of the
disease or infection.
b. A claim for compensation for dis ability on account of
silicosis or asbestosis shall be filed with the
Commission within one (1) year after the time of
disablement, and the disablement shall occur within
three (3) years from the date of the last injurious
exposure to the hazard of silicos is or asbestosis.
c. A claim for compensation for disability on account of
a disease condition caused by exposure to X -rays,
radioactive substances, or ionizing radiation only
shall be filed with the Commission within two (2)
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years from the date the condit ion is made known to an
employee following examination and diagnosis by a
medical doctor.
3. A claim for compensation on account of death shall be barred
unless filed with the Commission within two (2) years of the date of
such a death.
4. If a claim for benefits has been timely file d under
paragraph 1 of this subsection and the employee claimant does not:
a. make a good-faith request for a hearing to resolve a
dispute regarding the right to receive benefits,
including medical treatment, under this title within
six (6) months of the d ate the claim is filed, or
b. receive or seek benefits, including medical treatment,
under this title for a period of six (6) months ,
then on motion by the employer, the claim shall be dismissed with
prejudice.
B. Failure to File. Failure to file a claim within the period
prescribed in subsection A of this section shall not be a bar to the
right to benefits hereunder unless objection to the failure is made
at the first hearing on the claim in which all parties in interest
have been given a reasonable noti ce and opportunity to be heard by
the Commission.
C. Persons under Disability.
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1. Notwithstanding any statute of limitation provid ed for in
this act, when it is established that failure to file a claim by an
injured employee or his or her dependents was induced by fraud, the
claim may be filed within one (1) year from the time of the
discovery of the fraud.
2. Subsection A of this s ection shall not apply to a mental
incompetent or minor so long as the person has no guardian or
similar legal representativ e. The limitations prescribed in
subsection A of this section shall apply to the mental incompetent
or minor from the date of the a ppointment of a guardian or similar
legal representative for that person, and when no guardian or
similar representative has been appointed, to a minor on reaching
the age of majority.
D. A latent injury or condition shall not delay or toll the
limitation periods specified in this section. This subsection shall
not apply to the limitation period for occupational diseases
specified in paragraph 2 of subsection A of this section.
SECTION 30. AMENDATORY 85A O.S. 2021, Section 80, is
amended to read as follows:
Section 80. A. A final order for permanent disability is a
final adjudication of all issues pe nding in the claim unless
reserved in the order or by operation of law. Except where a joint
petition settlement has been approved, the Workers' Compensation
Commission may revie w any compensation judgment, award, or decision .
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1. Such review may be done upon application for a change of
condition for the worse at any time within six (6) months from the
date of the last order in which monetary benefits were awarded or
active medical treatment was provided , on the Commission's o wn
motion or on the applicatio n of any party in interest, and unless
filed within such period of time shall be forever ba rred. On
review, the Commission may make a judgment or award terminating,
continuing, decreasing, or increasing for the future the
compensation previously awarded, subject to the maximum limits
provided for in this title. An order denying an application to
reopen a claim shall not extend the period of time set out in this
title for reopening the claim. A failure to comply with a medica l
treatment plan ordered by th e Commission shall bar the reopening of
a claim.
2. The Workers' Compensation Commission may review any
compensation judgment, award, or decision at any time, and without
limitation upon a filing of an application for a findi ng of a change
of condition for the better. Such review may be filed for good
cause shown. On review, the Commission ma y make a judgment or award
terminating, continuing , or decreasing for the future the
compensation previously awarded, subject to the li mits provided for
in this act.
B. The review and subsequent award shall be made in accordance
with the procedure prescri bed in Sections 69 through 78 of this
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title. No review shall affect any compensation paid under a prior
order, judgment or award.
C. The Commission may correct any clerical error in any
compensation judgment or award within one (1) year from the date of
its issuance.
D. Aging and the effects of aging on a compensable injury are
not to be considered in determining whether there has been a change
in physical conditio n. Aging or the effect of aging on a
compensable injury shall not be considered in determi ning permanent
disability under this section or any other section in this act.
SECTION 31. AMENDATORY 85A O.S. 2021, Section 112, is
amended to read as follows:
Section 112. A. The Workers' Compensation Commission shall
create, maintain and review a list of licensed physicians who shall
serve as independent medical examiners from a list of licensed
physicians who have completed such course s tudy as the Commission
may require. An independent medical examiner must agree to examine
an employee within forty -five (45) days of appointment. The
Commission shall, to the best of its ability, include the most
experienced and competent physicians in t he specific fields of
expertise utilized most often in the treatment of injured employees.
The period of qualification shall be two (2) years. Physicians may
be qualified for successive two -year periods. Physicians serving as
independent medical examine rs on the effective date of this act
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shall serve the remainder of their respective two -year qualification
periods and may reapply for successive qualification p eriods. The
Commission may remove an independent medical examiner from the list
for cause.
B. An administrative law judge may appoint an independent
medical examiner to assist in determining any issue before the
Commission. In the event surgery is recom mended by a treating
physician, upon request of the employer, an i ndependent medical
examiner shall be appointed to determine the reasonableness and
necessity of the recommended surgery. Upon request of the employee,
an independent medical examiner may be appointed to determine the
reasonableness and necessity of surgery recommended by a treating
physician. Such independent medical examiner shall be qualified to
perform the type of surgery recommended.
C. An independent medical examiner shall be select ed from the
list of independent medical examiners within ten (10) da ys when the
employer or the employee petitions the Commission for the selection
of an independent medical examiner. The independent medical
examiner shall be certified by a recognized spe cialty board in the
area or areas appropriate to the condition under review.
D. The Commission sha ll, to the best of its ability, maintain a
geographic balance of independent medical examiners.
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E. Counsel for the employee and employer are responsible for
transmittal of the employee's medical records to the independent
medical examiner within ten (10) days of appointment.
F. After a physical examination and review of medical records
and other appropriate information, including depositions and
surveillance video, the independent medical examiner shall submit a
verified written report to the Commission a nd to the parties. In
the event the independent medical examiner determines that more
medical treatment is necessary, the employer shall designate a
treating physician to provide the indicated treatment.
G. Any independent medical examiner selected pursu ant to the
provisions of this section shall be reimbursed for the medical
examination, reports and f ees in a reasonable and customary amount
set by the Commission, and these costs shall be borne by the
employer.
H. The Commission shall create a review pro cess to oversee on a
continuing basis the quality of performance and the timeliness of
the submission of medical findings by independent medical examiners.
I. If the Commission does not follow the opinion of the
independent medical examiner on any issue, the administrative law
judge or member of the Board of Review shall set out its reasons for
deviating from the opinion of the independent medical examiner. The
opinion of the independent medical examiner shall be followed un less
there is clear and convinc ing evidence to the contrary.
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J. Upon receipt of an independent medical examiner's report,
any party shall have the right to object to the introduction of the
report into evidence. The objection must be made by giving writt en
notification to all parties and to the Commission within ten (10)
days after receipt of the report. The employer shall be respo nsible
for the reasonable charges of the physician for such testimony,
preparation time, and the expense of the deposition.
SECTION 32. AMENDATORY 85A O.S. 2021, Section 400, is
amended to read as follows:
Section 400. A. The Workers' Compensation Court shall be
renamed the Workers' Compensation Court of Existi ng Claims for the
purpose of hearing disputes relating to claims that arise before
February 1, 2014. The Court shall consist of the existing judges
for the remainder of his or her term. Each judge of the Court shall
continue to serve as the appointment t o a designated posit ion on the
Court. The terms of the judges by position number shall expire on
the following dates:
Position 4 shall expire 7-1-20.
Position 5 shall expire 7-1-20.
Position 8 shall expire 7-1-20.
Position 9 shall expire 7-1-20.
B. Effective July 1, 2020, t he The Workers' Compensation Court
of Existing Claims shall consist of one judge to be appointed by the
Governor, with confir mation by the Senate. The judge shall be
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appointed for a term to expire on July 1, 2022 2023. For the
purpose of continued operation of the Court of Existing Claims until
July 1, 2027, the existing judge on the effective date of this act
shall continue to serve, with the term to expire on July 1, 2027 .
The Governor shall select the judge from a list of three applicants
submitted to the Governor by the Judicial Nominating Commission. If
the list is not acceptable to the Governor, the G overnor may request
from the Judicial Nominating Commission a list of names of three
additional applicants. Any present judge of the Court of Existing
Claims may apply to the Judicial Nominating Commission for
appointment to fill any position authorized b y this section.
C. A judge may be removed for cause by the Court on the
Judiciary prior to the expiration of his or her term.
D. Each judge shall receive a salary equal to that paid to a
district judge of this state, and shall devote full time to his or
her duties and shall not engage i n the private practice of law
during the term in office.
E. If a vacancy occurs on the Court of Existing Claims, the
Governor shall appoint a judge to serve the remainder of the term
from a list of three applicants submitted to the Governor by the
Judicial Nominating Commission, with confir mation of the State
Senate. If the list is not acceptabl e to the Governor, the Governor
may request from the Judicial Nominating Commission a list of the
names of three additional applicants.
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F. 1. Effective January 1, 2020, the The Governor shall
appoint an Administrator of the Court of Existing Claims, who shal l
serve at the pleasure of the Governor. The Administrator shall be
appointed by the Governor with the advice and consent of the Senate.
The compensation for t he Administrator shall be set at ninet y
percent (90%) of the compensation of a district court j udge.
2. The Administrator shall employ and supervise the work of
employees of the Court and shall have the authority to expend funds
and contract on behalf of the Court. The Administrator may cont ract
with the Workers' Compensation Commission to provide support
services or personnel needs necessary to carry out the purposes of
the Court and shall supervise the work of any such personnel as
necessary to maintai n the Court as a Court of Record.
G. The Court of Existing Claims shall contract with the
Workers' Compensation Commission to integrate its case management
and records Information Technology System into the system of the
Workers' Compensation Commission with such integration to be
completed on or before July 1, 2022. The Court shall be entitled to
any fees generated for the retrieval of such data.
H. The Court shall operate by the rules adopted by the Workers'
Compensation Court prior to February 1, 2014.
I. The Court is hereby designated and confirmed as a cou rt of
record, with respect to any matter within the limits of its
jurisdiction, and within such limits the judges thereof shall
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possess the powers and prerogatives of the judges of the other
courts of record of this state including the power to punish for
contempt those persons who disobey a s ubpoena, or refuse to be sworn
or to answer as a witness, when lawfully ordered to do so.
J. The principal office of the Court shall be situated in the
City of Oklahoma City in quarters assigned by the Office of
Management and Enterprise Services. The Co urt may hold hearings in
any city of this state.
K. All county commissioners and presiding district judges of
this state shall make quarters available for the conducting of
hearings by a judge of the Court upon reque st by the Court.
L. Judges of the Work ers' Compensation Court of Existing Claims
may punish for direct contempt pursuant to Sections 565, 565.1 and
566 of Title 21 of the Oklahoma Statutes.
M. The Court shall be vested with jurisdiction over all claims
filed pursuant to the Workers' Compensation Code or previous statute
in effect on the date of an injury that occurred before February 1,
2014. All claims so filed shall be heard by the judge sitting
without a jury. The Court shall have full power and auth ority to
determine all questions in rel ation to payment of claims for
compensation under the provisions of the Workers' Compensation Code
or previous statute in effect on the date of an injury that occurred
before February 1, 2014. The Court, upon applica tion of either
party, shall order a hea ring. Upon a hearing, either party may
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present evidence and be represented by counsel. The decision of the
Court shall be final as to all questions of fact a nd law; provided,
the decision of the Court may be appeale d to the Court en banc or
the Supreme Court as provided by the Workers' Compensation Code or
previous statute in effect on the date of an injury that occurred
before February 1, 2014. In the event that an insufficient number
of active judges are available to comprise the three-judge en banc
panel, retired or former judges of the district court, Workers'
Compensation Court or Workers' Compensation Court of Existing Claims
may be designated by the Pre siding Judge of the Court of Existing
Claims as eligible t o serve on such panel. The Governor sh all
provide to the Court of Existing Claims a list of designated judges
eligible for service on the Court en banc. The decision of the
Court shall be issued w ithin thirty (30) days following the
submission of the cas e by the parties. The power and jurisd iction
of the Court over each case shall be continuing and it may, from
time to time, make such modifications or changes with respect to
former findings or ord ers relating thereto if, in its opinion, it
may be justified.
N. For an injury occurring before February 1, 2014, all
benefits and procedures to obtain benefits shall be determined by
the workers' compensation law of this state in effect on the date of
the injury.
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O. All accrued rights and penalties incurred pu rsuant to a
final order of the Workers ' Compensation Court shall be preserved.
No accrued right, penalty incurred, or proceeding begun by virtue of
a statute repealed by this act shall be abrogated by the terms of
this act.
P. Annually, on or before the first day of July, commencing
with July 2019, the Administrator shall prepare and submit a report
for the prior calendar year to the Governor, the Chief Justice of
the Supreme Court, the President P ro Tempore of the Senate and the
Speaker of the House of Representatives which shall include a
statement of the number of awards made and the causes of the
accidents leading to the injuries for which the awards were made,
total work load data of the Court , a detailed report of the work
load of the judges of the Court, a detailed statement of the
expenses of the office of the Administrator of Workers' Compensation
Court of Existing Claims, together with any other matter which the
Administrator deems proper to report to the Governor including any
recommendations he or she may desire to make.
Q. Subject to the availability of funds, the Judge of the Court
of Existing Claims may employ one at-will full- or part-time special
workers' compensation judge with jurisdiction to hear cases as set
forth in subsection M of this se ction and as may be assigned by the
Judge. The special workers' compensation judge shall receive
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compensation for such services in accordance with the provisions of
Section 92.1A of Title 20 of the Oklahoma Statutes.
SECTION 33. Sections 1 through 12 of this act shall become
effective November 1, 2023.
SECTION 34. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act sha ll take effect and
be in full force from and after its passage and approval.
Passed the House of Representatives the 22nd day of March, 2023.
Presiding Officer of the House
of Representatives
Passed the Senate the ___ day of __________, 2023.
Presiding Officer of the Senate