History of Oklahoma Workers' Compensation

Organizational History of the Court

From 1915 to 1959, Oklahoma’s workers’ compensation law was administered by the State Industrial Commission. Until 1939, three Commissioners were appointed by the Governor with the advice and consent of the Oklahoma State Senate to serve six-year terms. From 1939 to 1955, five Commissioners were appointed by the Governor with the advice and consent of the Senate for terms coinciding with the appointing Governor’s term. In 1955, in place of Commissioners, five Judges were appointed by the Governor with the advice and consent of the Senate. Terms were initially staggered, with six-year terms thereafter. Under the 1915 workers’ compensation laws, the Governor was required to designate a "Chairman of the Commission". This position was abolished in 1919, but was restored from 1939 until 1959, when the State Industrial Commission became the State Industrial Court. The Chairman’s position was then replaced with a Presiding Judge appointed by the Governor. The Governor designated the Presiding Judge until 1981, when the Judges of the Court were authorized to select a Presiding Judge from among their membership. The Court selected the Presiding Judge until 1986, when the Governor again became the appointing authority. A Presiding Judge serves a two-year term, and can serve no more than two terms in succession. The State Industrial Court was recognized statutorily as a "Court of Record" on June 16, 1959, and received constitutional recognition as a "Court of Record" in 1967 when § 1 of Article 7 of the Oklahoma Constitution was adopted. The State Industrial Court was replaced by a seven-judge Workers’ Compensation Court in 1978. The 1978 legislation also required the Governor to select judges from names submitted by the Judicial Nominating Commission which was created pursuant to § 3 of Article 7B of the Oklahoma Constitution. The 1977 Workers’ Compensation Act created the position of "Administrator". The judges of the Court determine the qualifications necessary for the job of Administrator. Pursuant to Title 85 O.S., § 1.3C, the Administrator is appointed by the Presiding Judge from a list submitted by the 5-member Special Workers’ Compensation Administrator Selection Committee. The Court was expanded to eight Judges in 1981, to nine in 1985, and to ten on September 1, 1993. Since September 1992, whenever a vacancy on the Court occurs, the Judicial Nominating Commission submits to the Governor the names of three persons, in addition to the name of the incumbent judge, if any. H.B. 1002, § 54, effective November 4, 1994, provides that the Workers' Compensation Court may hire Senior Justices and Judges, or Active Retired Judges under the provisions of Title 20, O.S. § 1104(B), to assist in the disposition of workers' compensation cases.

The following sections contain excerpts from Oklahoma Supreme Court cases that give a brief but informative history of the some of the legal changes of the the system from its inception in 1915 through the 1986 Reform Act. Provisions of the 2005 reforms will be addressed as the law from those changes continues to develop.

Inception to the 1977 Act


…This issue calls for an analysis of the conceptual distinction between disability and impairment embodied in the 1977 Workers' Compensation Act [1977 Act]. When examining the impact of this legislation, it is helpful first to explore Oklahoma's pre-1977 benefits regime.

The Pre-1977 Disability-Based Compensation Scheme

When first enacted in 1915, Oklahoma's regime for delivery of benefits to an injured worker was designed to restore lost earnings for compensable harm from "hazardous employment". This institutional design established four categories of disability-based benefits (permanent total, temporary total, permanent partial and temporary partial). The key term "disability" was not defined by statute. The court eventually came to measure it by a worker's capacity to perform "ordinary manual or mechanical labor". An injury to a specific, scheduled member of the body (a classified disability) was measured by the number of weeks in the member schedule, while one to an "unclassified part of the body" fell under the "other cases" clause of § 22 and was compensated on the basis of percentage disability to the body as a whole.

The 1977 Act's Disability-Based and Impairment-Related
Benefits Regime

The 1977 Act made two significant changes in the compensation law. It extended coverage to nearly all Oklahoma employees (not just to those in "hazardous employment") and introduced a mixed impairment-related and disability-based benefits regime. The terms disability and impairment were given distinct meanings.

Disability is designed to measure an employee's capacity for work, i.e., the degree to which an injury affects a person's ability to perform any task for which the worker is reasonably suited by training, education and experience. The purpose of disability-related compensation in the 1977 Act is to replace the incapacitated worker's lost earnings for injury to the limbs based on the number of weeks assigned as a maximum for each limb. The Act left intact this (pre-1977) wage-replacement concept of disability but confined its application solely to (1) temporary (temporary total and temporary partial) and (2) permanent total benefits. Permanent total disability is defined as "[i]ncapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee is or becomes physically suited and reasonably fitted by education, training or experience." In short, a permanently and totally disabled worker within the meaning of the Act is one eligible for wage replacement because of lack of capacity to earn any wages.

Impairment, on the other hand, is a medical condition; it refers to the effect of the injury upon a person's ability to perform basic life functions. The term permanent impairment is defined as "any anatomical or functional abnormality or loss after reasonable medical treatment has been achieved, which abnormality or loss the physician considers to be capable of being evaluated at the time the rating is made." Permanent partial disability means "permanent disability" and is the "same as permanent impairment." This definition not only signifies a complete departure from the old theory of ordinary manual or mechanical labor, but also introduces a new and more specific concept for evaluating permanent partial disability by placing it on a footing absolutely equal with permanent impairment, i.e. loss of bodily function.

The American Medical Association Guides to the Evaluation of Permanent Impairment [AMA Guides] provides helpful insight into the impairment-disability dichotomy. An impairment is viewed as a "medical matter", whereas disability is deemed to "arise out of the interaction between impairment and external demands." As used in the AMA Guides, (a) impairment means "an alteration of an individual's health status that is assessed by medical means," and (b) disability, "which is assessed by nonmedical means, means an alteration of an individual's capacity to meet personal, social, or occupational demands, or to meet statutory or regulatory requirements." With the sole exception of scheduled member losses, total or partial, the AMA Guides must be used for rating permanent impairment. In short, permanent partial disability, as distinguished from other payout classes, contemplates recompense for lost physical fitness, though the amount paid the worker must be measured by a percentage age of wages he (or she) would have earned but for the covered injury.

The terms of § 17(D) require that a trial tribunal specifically identify the reason for its award's deviation of more than 10% from the impairment rating by an independent court-appointed physician. Section 17(D), construed together with §§ 3(11) and (13) - the latter two of which define the terms permanent impairment and permanent partial disability - indicates that it is intended to deal with medical permanent partial impairment ratings.

The issue of permanent total disability turns on the evaluation of the worker's present capacity "to earn any wages in any employment for which he is presently suited or fitted by education, training or experience." The determination of a claimant's disability-based benefits presents a fact question for the trial tribunal. Its finding in this case declared Bucek to be totally and permanently disabled. Because § 17(D) has no application to disability-related benefits, the trial tribunal neither grounded its award in the AMA Guides nor was it statutorily required to explain why that award deviated (by 89%) from the IME's impairment rating.

Farm Fresh v. Bucek, 1995 OK 44, 895 P.2d 719.

Reforms of 1986 to Odyssey/Americare (1997)

This excerpt is from the case of Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309. Cheryl Worden was a home health care nurse for Odyssey/Americare. On the morning of her injury she left her home to go to her first patient visit of the day. Walking to her car she slipped and fell on wet grass injuring her foot and ankle.

Prior to the 1986 amendments to Oklahoma's Workers' Compensation Act, Oklahoma cases relied primarily on the increased risk doctrine to determine whether a risk arose out of a worker's employment. However, the peculiar risk and positional risk tests had also been applied. See, e.g., Halliburton Services v. Alexander, 547 P.2d 958 , 961 (Okla. 1976) ("where accidental injury results from risk factor peculiar to task performed, it arises out of employment … ."); Fox v. National Carrier, 709 P.2d 1050 , 1053 (Okla. 1985) (but for claimant's employment as truck driver he would not have been exposed to risk of choking on food at restaurant). But in 1986, the Oklahoma Legislature amended section 3(7) of title 85 to require that "only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of employment." The Legislature also repealed the provision which required an employer to produce "substantial evidence" to overcome a presumption that an injury was compensable under the Workers' Compensation Act. See Okla. State tit. 85, § 27 (1981) (repealed). The presumption and its corresponding burdens of production and persuasion were abolished.

These statutory changes to the analysis of the "arise out of" requirement were explained in American Management Systems, Inc. v. Burns, 903 P.2d 288 (1995). In Burns, a worker visiting Oklahoma City on a business trip for his employer was murdered in his hotel room by a unknown assailant with unknown motive. This Court explained that a claimant now has the burden of establishing the causal connection between injury and employment. Id. at 291. "To establish injury or death as attributable to an employment-related risk, the operative force of a hazard, other than that which affects the public in general, must be identified." Id. at 293. This Court specifically held that the positional risk test is now "unavailable for proving an injury's causal nexus to employment." Id. at 291. Burn's widow failed to establish that her husband's death arose out of his employment rather than from the ever-present risk of crime faced by the general public.

Despite the holding in Burns, the Court of Civil Appeals in this matter [Odyssey/Americare] held that "because the risk responsible was clearly presented by the requirements of her employment, it does not matter whether the risk of injury to her was no greater than the risk to the general public." Thus, it applied essentially the positional risk test rejected in the 1986 amendments to the Workers' Compensation Act as explained in Burns.

The Court of Civil Appeals read two post-Burns cases as controlling this controversy, Darco Transportation v. Dulen, 922 P.2d at 591 and Stroud Municipal Hospital v. Mooney, 933 P.2d 872 (Okla. 1996). It noted that in each case compensation was allowed for traffic collision injuries even though the employee was exposed to the same street risk faced by the general motoring public. That is true, but for reasons that are not present in the instant claim.

In Darco, a cross-country truck driver was injured when the tractor-trailer rig he was driving was struck by a train at a crossing where the warning equipment had malfunctioned. The test this Court applied was the same increased risk test that had been applied in Burns. However, the accident risk the truck driver encounter in Darco arose out of his employment "[b]ecause the perils of this servant's travel for his master [were] co-extensive with the risks of employment" Darco, 922 P.2d at 596. Thus, for that truck driver the risk of traffic accident arose from the very nature of his employment.

The Court of Civil Appeals also read Stroud Municipal Hospital v. Mooney, 933 P.2d at 872, as modifying the rule in Burns. Mooney involved an exception to the "general rule that an injury sustained while going to or from an employer's premises is not one arising out of and in the course of employment." Id. at 874. There, the special mission exception applied because the employee was instructed to return immediately from his lunch break at home to the emergency room of his employer's hospital in order for him to perform emergency blood work. The employee was injured in an automobile accident while he was attempting to comply with his employer's instruction. This Court concluded that "[o]n this record it could be found that Claimant's return trip was 'outside regular working hours' and within the 'special mission' exception." Id. at 875. Thus, when the employee's special mission was "to promptly drive to the emergency room for an emergency," id., the traffic risk became a risk of his employment.

In this matter, there are no facts to indicate that Claimant was on a special mission outside regular working hours for her employer. In fact, the record demonstrated that she was within her regular working hours performing her usual tasks. Mooney's special mission exception was not asserted by Claimant nor does it apply to these facts.

Neither Darco nor Mooney abrogate or modify the increased risk test required by the Workers' Compensation Act and described in Burns. Neither case controls resolution of the claim now before this Court.

This case is controlled by the increased risk test for the arising out of element of coverage provided in the Workers' Compensation Act at section 3(7)(a) of title 85. The question is whether Claimant's employment subjected her to a risk that exceeded the ordinary hazards to which the general public is exposed. It did not.

Claimant encountered the neutral risk of wet and therefore slippery grass due to rain. Her employment exposed her to no more risk of injury from wet grass than that encountered by any member of the general public. No evidence was presented linking the risk to her employment. Although Claimant was undeniably in the course of her employment at the time of her injury, the injury did not arise from her employment. The trial tribunal's initial order denying coverage was correct. The order allowing compensation was error.

Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309.

Post-Odyssey/Americare Supreme Court Cases

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