Supreme Court Nixes Parts Of Workers Comp Law

From The Tulsa World ~ The Oklahoma Supreme Court on Tuesday struck down two portions of a highly touted workers compensation reform measure passed last session.

Senate Bill 878 removed chiropractors as independent medical examiners in workers compensation cases. The new law, which became effective Aug. 26, limited independent medical examiners to medical doctors and doctors of osteopathy.

The suit alleged that chiropractors in the past had been allowed to serve as independent medical examiners and their reports were used to support claims for permanent partial disability.

Traditionally, independent medical examiners meant someone appointed by the court to examine a patient for future treatment or determine the degree of disability. The new law seemed to include them as advocates as well, giving evidence for one side or the other.

"We find the legislature, by the exclusion of not only chiropractors, but also podiatrists, dentists, and optometrists, have created a suspect special class," the opinion said. "We also find that there is neither a distinctive characteristic upon which this different treatment is reasonably founded nor one which furnishes a practical and real basis for discrimination between the groups within the classes."

The portion of the law that excludes all physicians other than medical doctors or doctors of osteopathy as independent medical examiners is unconstitutional, the opinion said.

The measure also attempted to change the standard of review to clear and convincing evidence from preponderance of the evidence, the opinion said.

The Supreme Court struck that portion of the law as well, saying it violated the separation of powers clause of the Oklahoma Constitution.

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Comp Court Appointees Measure Advances

A resolution calling for a vote of the people to determine if gubernatorial Workers’ Compensation Court appointments should require Senate confirmation passed a House Committee today.

The change called for in House Joint Resolution 1041 would add more accountability to the workers’ comp system, said Rep. Dan Sullivan, author of House Joint Resolution 1041.

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Workers Comp Reform Measure Passes Committee

Legislation that would, its sponsors say, overhaul Oklahoma's workers' compensation system to drive down costs while improving worker benefits received committee approval this week.

House Bill 2605, by Rep. Mark McCullough (pictured), would create a three-member Workers' Compensation Commission to replace the current Workers' Compensation Court.

"This is sweeping legislation that will dismantle the current lawsuit-based Workers' Compensation Court and replace it with an administrative system based on Arkansas' successful model," said McCullough, R-Sapulpa. "Our current system has been failing both injured workers and employers for years. It's time to overhaul it in a way that reduces costs to the employer while creating an easier path back to work for injured employees. This bill will benefit injured workers most by streamlining access to medical care and focusing on vocational rehabilitation."

House Bill 2605 is the result of months of work, including an in-depth legislative study conducted this year that identified the major failings of Oklahoma's current workers' compensation system.

That study demonstrated that the rate of permanent partial disability payments (PPDs) in Oklahoma is significantly higher than the rate in neighboring states.

According to Roy Wood, an official with the National Council on Compensation Insurance, PPD claims in Oklahoma are almost twice the regional average and the average lost-time claim frequency is much higher than the region and nation - 60 percent higher than the national average.

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McCullough Eyes Workers Comp Law Changes

State lawmakers may pursue substantial changes in Oklahoma's Worker's Compensation System during the 2008 legislative session based on the results of a study requested by Rep. Mark McCullough, he said today.

"In spite of recent reform efforts, Oklahoma's workers compensation market is still too expensive for many businesses and fails to provide proper treatment to injured workers," said McCullough, R-Sapulpa. "There is clearly room for improvement that will make Oklahoma more business-and-worker friendly."

McCullough noted that the rate of permanent partial disability payments (PPDs) in Oklahoma is significantly higher than the rate in neighboring states.

According to Roy Wood, an official with the National Council on Compensation Insurance, PPD claims in Oklahoma are almost twice the regional average and the average lost-time claim frequency is much higher than the region and nation - 60 percent higher than the national average.

According to figures in the 2006 Workers Compensation Court report and the 2006 National Council on Compensation Insurance report, there were 3,413 court-ordered PPDs in Oklahoma that year with an average payout of $22,299 per claim.

That same year, Oklahoma's workers comp system ordered vocational rehabilitation for only 4 percent of all cases.

The continuing problems with PPD claims may be one reason that Oklahoma experienced its highest payout for claims in 18 years in 2006 -$270 million, a 69 percent increase since 2000.

"Even as the total number of claims is falling, payouts are rising and the system is costing businesses more and more," McCullough said. "Medical claim severity in Oklahoma is actually among the lowest in the region, yet our partial permanent disability payments are higher than our neighboring states. That creates a very hostile environment for small businesses in Oklahoma."

McCullough said the system may be failing both workers and businesses by neglecting vocational rehabilitation in favor of litigation.

The lack of worker rehabilitation efforts may be driven by the fact that Oklahoma is one of approximately three states with a "pure adversarial system," McCullough said, noting that attorney involvement in workers comp cases in Oklahoma is 50 percent higher than the national average: "Attorneys don't see any personal benefit from rehabilitation programs, but they do get a cut of any lump-sum PPD payments their clients receive," McCullough said. "That creates a perverse incentive for lawyers to push for cash settlements instead of effective treatment for an injured worker."

McCullough said Oklahoma's workers comp system could be improved by moving to an administrative system that reduces attorney involvement, by promoting more vocational rehabilitation or other worker benefits, by requiring independent medical treatment and diagnosis, and by providing tax incentives to encourage businesses to implement workplace safety programs.

The recent hearing was attended by over 30 lawmakers, legislative staff, industry experts and agency leaders. McCullough expects to file reform legislation in the 2008 legislative session, which begins next February.

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