Anderson, Sykes advance Falllin workers’ compensation reforms

by Patrick B. McGuig9an

Published: 22-Feb-2011

The Oklahoma state Senate Judiciary Committee has sent to the floor a significant revision of Oklahoma workers compensation law. Governor Mary Fallin embraced the bill, which is the result of a Workers Compensation Study Group she empowered after the November election.

The bill is co-sponsored by Senators Anthony Sykes of Moore and Patrick Anderson of Enid, and passed 6-3 in a mid-morning vote.
In a statement sent to CapitolBeatOK today (February 22), Governor Fallin said:
“Oklahoma’s workers’ compensation system is one of the most expensive, least efficient systems of its kind in the nation. Unfortunately, it represents a real obstacle to business recruitment and retention and drives jobs out of state. The reforms we are offering today will change that, by reducing medical and legal costs so that employers can spend their money on job creation and business expansion instead of litigation.
“Our plan creates a system that is fair to both workers and employers, lowers costs and helps us in our mission of creating a better environment for business growth and job creation in Oklahoma.”
Fallin’s workers’ compensation reform package was the subject of a Republican “rally” of sorts in the Blue Room of the state Capitol early in this legislative session.  The Republican governor identified the measure as one of her priorities at that time.
Some observers question if comprehensive reform is possible without shifting the state’s system away from litigation and toward an administrative structure. At the Blue Room event, CapitolBeatOK asked state Rep. Dan Sullivan of Tulsa, a key player in workers comp deliberations, if “William Shakespeare’s ‘Richard III’ even came up during your deliberations?”
Sullivan chuckled and replied, “We decided not to kill all the lawyers.”
The Senate bill cleared the Judiciary Committee today, on a party-line vote of 6-3. Voting in favor were Senators Sykes of Moore, the panel’s chairman, and Senators Rob Johnson of Kingfisher (the vice chairman), Jonathan Nichols of Norman, Brian Crain of Tulsa, Josh Brecheen of Coalgate, Ralph Shortey of Oklahoma City,
Voting against the measure were three Democratic Senators Judy Eason-McIntyre of Tulsa, Charlie Laster of Shawnee and Richard Lerblance of Hartshorne.
Senator Patrick Anderson of Enid, co-author of the bill with Chairman Sykes, presented the bill in committee and fielded questions from members. Anderson said the bill would ameliorate medical rates that now account for about 40% of costs in the system. The cost reductions would come by linking the system more directly to the Official Disability Guidelines (ODG).
Sen. Eason-McIntyre questioned the bill’s provisions, saying she believes language in the measure will limit the rights of injured workers. Anderson said the concern was misplaced, as new language will require that treatment begin within seven days.
Senator Lerblance questioned changes in the workers compensation system touching on judges in the court system. Sen. Anderson said members of the court would still be appointed by the governor, membership would remain at eight, but that after January 1, 2013, the chief judge would be named by the governor.
Senator Laster asked who had put the proposal together. Anderson said it was the work of Governor Fallin’s working group. Saying he was concerned about the number of changes to existing law made in the bill, Laster complimented Anderson for his work on the issue. He went on to say he had not a chance to read all of the 200+ pages in the measure. He joshed good-naturedly, “I urge everyone who has read this bill to vote yes.”
By agreement of the committee, the title was stricken from the bill. Anderson explained it was “a work in progress” and that he hoped to have bipartisan support by the time the measure moves toward final passage.
Anderson and other advocates of the Senate version of the bill contend the new is the first major rewrite of Title 85 in 34 years. Title 85 is the section of state law that governs the state’s workers’ compensation system.
A press release from the office of the governor summarized changes the new bill would make to Title 85, stressing these highlights, saying the measure will:
•         reduce medical and legal costs to Oklahoma businesses
•         bring quicker resolution to cases
•         require all parties within the system to be held accountable
•         shorten the timeline for resolution of cases
•         collect accurate data to measure cost-drivers within the system and to aid in future reform efforts
•         reduce litigation with an emphasis on alternative dispute resolution such as mediation and the Ombudsman Program

A pro-S.B. 878 fact sheet circulated by Senator Anderson at the Judiciary hearing summarized the bill’s provisions in the following words:

1.      Substantially impacts the scope and duration of medical treatment and time that an injured worker is off work. Medical treatment to be controlled by nationally recognized Official Disability Guidelines (ODG).
2.      Cuts medical costs by tying the fee schedule for hospitals, doctors, and other medical service providers and for prosthetics and supplies to the Medicare fee schedule.
3.      Makes the Court transparent with public release of reports of judicial performance. Requires specific information to be provided by the Administrator so success of reforms can be measured. An electronic data interchange system will be implemented.
4.      Cuts the maximum time to draw temporary total disability (TTD) benefits from 300 weeks to 156 weeks. Should bring quicker resolution of cases.
5.      Expands counselor or ombudsman program and mediation. Mediators don’t have to be lawyers. Special program for early mediation without attorneys involved. No Form 3 must be filed to use the counselor or mediation program. Requires court to provide training to adjusters, including information about ombudsman program and the availability of mediation with attorney involvement.
6.      Limits discretion of judges by putting more decision-making in the hands of medical experts  (Independent Medical Examiners) which can be appointed on any issue at any time. The act prevents doctor-shopping by injured workers.
7.      Dramatically changes the definition of permanent total disability. Such benefits to be awarded only if permanent physical or mental restrictions prevent the worker from gainful employment.
8.      Severely limits abuse of pain management and continuing medical maintenance. Provides that employers are not liable for pain management unless recommended by treating physician or an independent medical examiner or pre-approved by the insurance carrier. Judges are given no discretion in awarding pain management.
9.      Employer’s providing of prompt medical treatment will not be construed as an admission of compensability of the injury.
10.  Employee cannot draw TTD if receiving unemployment or short term disability benefits.
11.  The treating doctor’s opinion on TTD and need for medical treatment to be given more weight.
12.  A “consequential” injury is strictly defined to require causal connection between the original injury and consequential injury.
13.  Eliminates excessive penalties for employers or insurance companies who pay medical bills late. Sets up reasonable interest penalty for late payment.
14.  Encourages early return to work. Vocational rehabilitation can be ordered while injured worker is still TTD and under active medical care. A Vocational Rehabilitation Director is authorized to be hired by the Court to develop programs to get workers back into the workforce quickly.
15.  Unnecessary surgeries and duplicate medical care will be reduced with liberal use of medical experts early in the case.
16.  Allows no attorneys fee in uncontested death cases, value of vocational rehabilitation in a settlement, or the amount designated as a Medicare Set Aside trust. Also provides that attorney may not collect a fee on TTD being paid at the time the lawyer is hired. Removes any reason for lawyer to prolong payment of TTD.
17.  Tightens exclusive remedy for employers.  Makes clear that worker who is alleging intentional tort loses such district court action by pursuing workers’ comp benefits.
18.  Eliminates abuse of TTD payments in non surgical strain and sprain cases. No more stacking of body parts for TTD.
19.  Eliminates the possibility of a judge awarding more than 100 % permanent disability without amputations or surgeries from latest accident.
20.  Requires Form 3 to include information about the worker’s Social Security Disability status, a major issue for employers and carriers.
21.  Allows subrogation by employers and insurance companies in death cases.
22.  Adds specific definition for terms used in the workers’ compensation system to reduce litigation in disputes of interpretation.
23.  Streamlines Multiple Injury Trust Fund to encourage Court to relieve the employer from permanent total benefits from the last injury.
24.  Freezes maximum PPD rate at $323 for another four years.
25.  Gives Supreme Court immediate power to strictly review orders of the Comp Court.
26.  Cuts the statute of limitations in cumulative trauma claims to one year.
27.  Sets up mechanism that will result in huge savings in the cost of prescription drugs.
28.  Prohibits the award of permanent partial disability for body parts to which no medical treatment was provided.
29.  Allows full and final compromise settlements without the filing of a Form 3, a lawyer, or the intervention of a judge.
30.  Prohibits judicial conduct which shows favoritism to any party and which reflects badly upon the Court and the workers’ compensation system.
31.  Changes waiting period to draw TTD from 3 to 7 days.
32.  If no notice of an injury is given within 30 days, the employee forfeits the first three weeks of TTD.
33.  TTD can be terminated if an employee misses three consecutive medical appointments without a valid excuse.
34.  Eliminates conflicts of interest between judges, doctors, lawyers, the court, and guaranty associations.
35.  Punishes abusive practices of healthcare providers with fines and sanctions.
36.  Provides for mandatory review of permanent and total disability recipients every one year, with an affidavit to be filed that the worker is not gainfully employed.
37.  Gives more power to the Administrator in effecting settlements. The Administrator can approve settlements reached in mediation, without the intervention of a judge.
38.  Requires quick decisions. A judge must render a decision within 60 days of the trial.
39.  Fines employers or insurance companies for not paying travel reimbursement within 60 days.  
40.  Fines employers or insurance companies for not promptly paying TTD in admitted injury cases.
41.  Attempts to take politics out of judicial rulings by allowing Judge to only serve one 8-year term.
42.  Penalizes employers for not promptly paying bills for authorized medical treatment.
43.  Reduces from three to two years that a claim can be reopened on change of condition.