Table of Contents
1. Personal Injury
Whether exertion from a worker's physical effort is sufficient to produce, and did in fact produce, the strain which culminated in disability, does not present a question of law, but one of fact to be determined by the trial tribunal from expert medical opinion based on relevant facts and circumstances adduced by the proof. Pauls Valley Travel Center v. Boucher, 2005 OK 30, 112 P.3d 1175, citing H.J. Jeffries Truck Line v. Grisham, 1964 OK 242, 397 P.2d 637.
For full discussion of this issue, click here.
1.2. Rate of Compensation
If an injured worker is entitled to temporary total or permanent partial disability compensation, the weekly amount payable is 70% of the worker's average weekly wage up to the maximum rate in effect on the date of injury.
|Date of Injury||Maximum Rate|
|November 1, 2010||October 31, 2015||716||323|
|November 1, 2009||October 31, 2010||717||359|
|November 1, 2008||October 31, 2009||683||342|
|November 1, 2005||October 31, 2008||577||289|
|November 1, 2002||October 31, 2005||528||264|
|November 1, 1999||October 31, 2002||473||237|
|November 1, 1996||October 31, 1999||426||213|
|January 1, 1996||October 31, 1996||409||205|
|January 1, 1995||December 31, 1995||368||205|
|November 1, 1993||December 31, 1994||307||205|
|September 1, 1992||October 31, 1993||277||205|
|November 1, 1990||August 31, 1992||246||185|
|November 1, 1987||October 31, 1990||231||173|
|November 1, 1984||October 31, 1987||217||163|
|November 1, 1983||October 31, 1984||212||159|
|November 1, 1982||October 31, 1983||196||147|
|For a printable version of this table in PDF format, click here.|
"Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer.
85 O.S. §3(14).
A workers rate of compensation is computed by first determining his average weekly wage under 85 O.S. §21 and then multiplying by the percentage for PTD, TTD or PPD set out in 85 O.S. §§22(1), (2) or (3).
When a worker's hourly rate of pay increases shortly before an injury, his "average weekly wage" must be based upon the usual and ordinary hourly wage that the worker was earning at the time of his injury. Wal-Mart Stores, Inc. v. Switch, 1994 OK 59, 878 P.2d 357.
If a claimant worked less than five days per week when injured, subsection 3 must be used to calculate his average weekly wage. Norman Regional Hospital v. Hearold, 2008 OK CIV APP 47, 184 P.3d 1105; Pawhuska Auction Company v. Cochran, 1970 OK 107, 471 P.2d 451.
Seasonal workers: Central Plains Construction v. Hickson, 1998 OK CIV APP 83, 959 P.2d 998 (where earnings of a regular employee of a year round (not seasonal) business are curtailed by business conditions causing loss of time by the employee, §§21(1) and 21(2), not §21(3), may still be applied, if the evidence supports it); Willoughby v. Tidelands Geophysical Co., Inc., 2002 OK CIV APP 99, 57 P.3d 132.
Mileage reimbursement is not included in wages except to the extent it exceeds actual vehicle travel expenses. Himes v. Country Style Home Health Care, Inc., 1999 OK CIV APP 49, 982 P.2d 535; Mazzio's Corp. v. Dick, 1999 OK CIV APP 139, 994 P.2d 96 (mileage payments were not intended to give claimant any financial gain from the use of his vehicle for pizza deliveries). Payment by employer of mileage to employee, for employee's use of private automobile, at rate at or below recognized Internal Revenue Service (IRS) rate, is prima facie expense reimbursement, not wages. Mazzio's Corp. v. Dick, id.
Fringe benefits and pension contributions are not includable. Clopton v. City of Muskogee, 2006 OK CIV APP 127, 147 P.3d 282. According to Professor Larson, "whether paid voluntarily or in contested and adjudicated cases, [compensation benefits] have always begun with a wage base calculation that made 'wage' mean the 'wages' that the worker lives on and not miscellaneous 'values' that may or may not some day have a value to him depending on a number of uncontrollable contingencies."
Special provision in Title 11, Cities and Towns, §50-116.1 provides that a police officer who becomes "sick or temporarily disabled" shall receive full wages from the municipality for up to 6 months with the option for the city to extend the benefit for up to 6 more months.
1.2.1. Combining Wages
In computing compensation for injured worker, it is error to consider income from other sources and other employers. Max E. Landry, Inc. v. Treadway, 1966 OK 259, 421 P.2d 829.
An injured worker is permitted to combine the wages paid by two employers upon a showing that the duties performed for both employers are identical or substantially similar. Geneva-Pearl Oil & Gas Co. v. Hickman, 1931 OK 74, 296 P. 954 (oilfield pumper was pumping two leases for separate parties); Burkan Oil Co. v. Notley, 1971 OK 111, 488 P.2d 1277 (oilfield pumper).
Any conflicts in these cases are reconciled because 85 O.S. §21 uses the term "employment" in the singular. In Hickman, the Court was able to give the statute a liberal construction on claimant's behalf without doing violence to the express language of the statute. Fox Building Supply Co. v. Bond, 1979 OK 175, 604 P.2d 859.
If it be established that the injured employee was a minor when injured, and that under normal conditions his wages would be expected to increase, the fact may be considered in arriving at his average weekly wages.
85 O.S. §21(5).
For full discussion of this issue, click here.
1.4. Permanent Disability
The issue of permanent disability is one of science, and it must be proven by medical expert testimony.
Justice Yvonne Kauger, LaBarge v. Zebco, 1988 OK 147, 769 P.2d 125.
For injuries occurring on of after October 23, 2001, permanent partial disability awards may not exceed 100%, not including Multiple Injury Trust Fund awards, amputations and surgeries. Prior to that date awards were limited to 100%, including Multiple Injury Trust Fund awards. 85 O.S. §22(7). This provision was interpreted in United General Contactors v. Campbell, 2010 OK CIV APP 10, 231 P3d 703. The COCA held the 520 week limitation on PPD awards does not include disabilities for surgeries, and therefore impairment to an operated body part is not counted in determining whether claimant's injuries exceed the cap.
Constitutional argument that the 100% permanent partial disability limitation is a denial of equal protection was rejected by the Oklahoma Supreme Court. Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452.
Permanent disability awards commence on the last date of payment of temporary compensation. Industrial Track Construction Co. v. Colthrop et al., 1933 OK 67, 19 P.2d 1084; Multiple Injury Trust Fund v. McGrary, 2001 OK CIV APP 68, 24 P.3d 896.
"No payments on any permanent impairment order shall start until payments on any pre-existing permanent impairment orders have been completed." 85 O.S. §22(12).
When a worker receiving payment of a permanent partial disability award is entitled to additional temporary compensation due to change of condition for the worse, the unaccrued permanent disability payments are suspended to be recommenced when the healing period has ended. Hondo Petroleum Company v. Piearcy, 1962 OK 216, 376 P.2d 1012 (claimant's entire award was commuted to a lump sum and TTD payments commenced soon after the final order because there was no unaccrued payments).
"[A] worker cannot receive payment for both permanent total disability and permanent partial disability concurrently." Roberts v. Matrix Services, Inc., 1993 OK 148, ¶12, 863 P.2d 1242.
1.4.1. Scheduled Members
What are scheduled members? Fingers, thumbs, hands, arms, toes, feet, legs, eyes, ears. 85 O.S. §22.
Thumbs and hands are separately compensable as scheduled members. Failure to include them in a request for relief in the original proceeding may result in later request for treatment of the thumbs (or fingers or toes in the case of feet) from being barred by the statute of limitations. Blue Bell, Inc. v. Speakman, 2006 OK CIV APP 84, 138 P.3d 842.
Combining Impairments to Scheduled Members to the Body as a Whole (BAW)
By excepting scheduled members from the Guides, the legislature intended to do so for all purposes, including the combining of impairments to scheduled members. Nothing in the legislative mandate for employing the Guides indicates that the legislature intended to depart from or overrule the long-standing body of law - both statutory and case law - that treats evaluation of impairment to scheduled members differently. It is well settled that: "Multiple injuries to major specific members may be compensated on the basis of their cumulative effect upon the total disability to the body as a whole, if there is competent medical evidence to show such disability." Stoldt Builders, Inc. v. Thomas, 1964 OK 127, 393 P.2d 875.
Oklahoma Tax Commission v. Evans, 1992 OK CIV APP 14, 827 P.2d 183.
Combining of disability to two or more major members into disability to the body as a whole is a permissive, alternative method to determine an injured worker's entitlement to compensation. See Stoldt Builders, Inc. v. Thomas, 393 P.2d 875 (Okla. 1964). It is properly utilized in cases where it is medically determined that the cumulative effect of the individual, multiple injuries impacts whole body disability. The reason for this is obvious: Whole body disability generally involves a greater physical and economic detriment to a worker than the individual injuries and disabilities to specific members. A worker is accordingly compensated for this greater detriment that is incurred. Stated another way, it is a method of determining disability that is recognized for the benefit of the injured worker to completely compensate him for the full extent of his disability. It should be employed in those cases where it results in such benefit to an injured worker and never to his detriment. In cases such as the instant one, where the greater physical and economic detriment is reflected in the disability to the individual members, the injured worker should be compensated on that basis.
Peoples v. Oklahoma Medical Research Foundation, 1994 OK CIV APP 101, 879 P.2d 843.
Computation for Determining BAW Rating from Combination of Injuries
Where it appears the claimant has sustained a permanent partial disability to both hands, the percentage of loss to each hand, as determined by the Commission, should be added together, and divided by two; the quotient will be the percentage of the permanent partial disability sustained by claimant for the loss to both hands, on the basis of 500 weeks.
American Tank Co. v. State Industrial Commission, 1931 OK 705, 5 P.2d 137
Richardson v. Bartlett Collins Co., 1999 OK CIV APP 105, 990 P.2d 305
Stoldt Builders, Inc. v. Thomas, 1964 OK 127, 393 P.2d 875
An award for permanent partial disability to the body as a whole due to combined disability to more than one scheduled member must be supported by competent medical evidence. Consumers Coop. Ass'n v. Titus, 1949 OK 86, 205 P.2d 1162
Wetherbee Elec. Co. v. Carmichael, 1944 OK 187, 148 P.2d 188
1.4.2. Using the AMA Guides
For a summary outline of the principles for evaluating impairment under the AMA Guides, click here.
1.4.3. Crumby Findings
When a physically impaired person (as defined in the version of 85 O.S. §171 in effect at the time of the subsequent injury) receives a subsequent injury the trial court must make findings consistent with 85 O.S. §172 by determining the nature and extent of the prior impairment. J.C. Penney Co. v. Crumby, 1978 OK 80, 584 P.2d 1325 (prior adjudication)
In the case of Hammons v. Oklahoma Fixture Company, 2003 OK 7, 64 P.3d 1108, Otis Hammons sustained a 1997 injury to his lungs which was reopened with additional disability awarded in 1997 and 1999. His pursuit of PTD status in 2001 was denied by the trial judge due to significant pre-existing component of lung-related impairment occasioned by smoking [prior to the 1997 injury]. The denial was affirmed by the court en banc; COCA reversed due to failure of employer's medical report to determine the pre-existing disability, and it entered an order finding claimant was PTD. The Supreme Court vacated the PTD finding and remanded to allow the employer to cure the failure of its report to make a Crumby finding on the pre-existing disability. The Supreme Court held:
The Workers' Compensation Court's finding that denies the claimant a PTD status is based on the presence of pre-existing conditions unrelated to the accidental harm in contest which militate against conferring a PTD award. COCA's opinion correctly concludes there is here no competent medical evidence to support the panel's order of PTD denial. This is so because entirely missing from the employer's medical report is a rated assessment of the effect, if any, upon the claimant's alleged capacity status (PTD) from the interplay of his compensable harm with the unrelated pre-existing conditions. By "effect" we refer to that component of claimant's total disability from pre-existing impairments which may (or may not) contribute to his current condition and which has an effect on (or does not affect) his present capacity for work. That element of the evaluation process is known in the language of the compensation bar as a Crumby finding.
The employer's lone medical report (admitted in evidence) notes that claimant had been awarded PPD in 1997, 1998 and 2000. The text then opines that claimant had sustained neither a change of condition for the worse nor any impairment "over and above" that which had been previously [64 P.3d 1110] awarded, concluding that claimant is not permanently and totally disabled (based on his age, education, training and work experience) and may return to work. The report's vice lies not in providing defective proof but rather in its utter failure of showing the extent of claimant's prior (unrelated) disability and the compensable injury's impact, if any, on the claimant's prior impairments. Because the panel's decision, now on review, is based on an underlying (trial judge's) order that lacks support in competent proof, the panel's order cannot stand.
Hammons v. Oklahoma Fixture Company, 2003 OK 7, 64 P.3d 1108.
Under Crumby and Hammons, the trial court has a duty to determine the nature and extent of pre-existing disabilities, even to unrelated body parts when PTD is requested. 85 O.S. §26, 171, 172.
Western Co. of North America v. Nicholson, 1993 OK 82, 854 P.2d 905 (ordering trial judge who entered PTD order to determine claimant's pre-existing disability due to diabetes and genetic tendon deficiency in his hands).
The 2005 amendments to the Workers' Compensation Act, did not create an award of permanent partial disability for a first hernia. 85 O.S., §22(3)(d); Murphy v. Nabors Drilling, USA L.P., 2007 OK CIV APP 53, 162 P.3d 976. Hernia injuries are compensated at 6 weeks of TTD compensation, plus the cost of all medical treatment, including surgery. One additional 6 week period may be awarded if supported by medical evidence.
The 2005 amendments also eliminated the permanent partial disability benefits allowed under prior law for second or subsequent repair of hernia in the same area.
Despite the limitation to medical treatment and TTD, an injured worker may be entitled to temporary compensation when there is an unreasonable delay in the delivery of medical treatment.
In spite of the limitations, permanent total disability may be awarded in appropriate cases. Crowe Coal Co. v. Swindell, 1925 OK 319, 235 P. 614; Safeway Stores v. Brumley, 1942 OK 275, 128 P.2d 1006. See also, Fiesta Pools of Oklahoma City v. Pratt, 1965 OK 133, 405 P.2d 1014; Seismograph Service Corporation v. Cosby, 1957 OK 263, 317 P.2d 215.
For discussion of soft tissue and permanent anatomical abnormality click here
In case of an injury resulting in serious and permanent disfigurement, compensation shall be payable in an amount to be determined by the Court, but not in excess of Twenty Thousand Dollars ($20,000.00) for an injury occurring before November 1, 2005, and not in excess of Fifty Thousand Dollars ($50,000.00) for an injury occurring on or after November 1, 2005; provided, that compensation for permanent disfigurement shall not be in addition to the other compensation provided for in this section but shall be taken into consideration in fixing the compensation otherwise provided.
85 O.S. §22
Disfigurement is "a separate and independent element of compensation, awarded in conjunction with a compensable injury." Disfigurement may be awarded for the scarring or disfigurement that does not cause any of the disability to the injured body part. Safeway Stores, Inc. v. Hart, 1976 OK 76, 550 P.2d 1327; Kerr-McGee Corporation v. Washington, 1970 OK 191, 475 P.2d 815 (distinguishing scars which were disabling, reducing claimant's ability to work, from scars which were disfiguring but not disabling); Seneca Coal Co. v. Carter, 1922 OK 90, 205 P. 495 (injured employee entitled to permanent disfigurement of the face, although he had been awarded compensation for the loss of an eye where disfigurement of the face was in addition to and separate from the loss of the eye); Caddo County v. Hartman, 1945 OK 361, 164 P.2d 617 (claimant awarded disability to the head for a skull fracture is entitled to additional award for disfigurement caused by lacerations to the forehead around his left eye).
Kerr-McGee Corp. v. Washington, supra, is an excellent example of rationale of the limiting proviso . . . There claimant sustained burns to hands, arms and body with resulting scars. The court distinguished between scars which were disabling, reducing claimant's ability to work, from scars which were disfiguring but not disabling. Scars which diminished claimant's ability to work were compensated in an award for permanent partial disability, but were no part of the court's consideration in determining the award for disfigurement. Scars which did not diminish claimant's ability to work were the subject of the disfigurement award, but no scars contributing to disability were part of the disfigurement award.
Safeway Stores, Inc. v. Hart, supra.
An injured party cannot be awarded disfigurement for those body parts determined to constitute permanent total disability. See, G & G Steel Erectors v. Gutierrez, 1984 OK CIV APP 26, 683 P.2d 543, in which the COCA held that a claimant who had been awarded permanent impairment for the loss of an eye could not also be awarded benefits for disfigurement of the eye. However, the COCA held that Gutierrez does not apply if the disfigured body part does not contribute to the claimant’s permanent total disability. McDonald v. M&S Construction, Inc., 1994 OK CIV APP 32, 871 P.2d 1389. Therefore, disfigurement from burns, skin grafts, loss of teeth and minor lacerations with scarring can generally be awarded in a permanent total disability case.
Loss of teeth is compensable disfigurement even though repaired by dental surgery. Grinnell Co. v. Smith, 203 Okla. 158, 218 P.2d 1043 (1950). Worker was not compensated twice for same body part when he was awarded disability to the jaw (crepitance and abnormalities of mastication and deglutition) and disfigurement for loss of 13 teeth. Yaffee Metals v. Quick, 1996 OK CIV APP 16, 918 P.2d 749.
Division IV of the COCA held abdominal scarring from anterior approach lumbar disc surgery will sustain an award for disfigurement. Folds v. I.C. of Oklahoma, LLC, Case No. 105,540.
The appellate record must contain a description of the disfigurement whether from a statement by the trial judge or the testimony of the claimant and the examining doctors. Kerr-McGee Corporation v. Washington, supra.
1.5. Permanent Total Disability
"Permanent total disability" means incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation; loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability.
85 O.S. §3(20).
This definition contains two conditions, and meeting either will satisfy the requirements for holding that an injured worker has permanent total disability ("PTD"). The latter condition is called statutory PTD, and it is the loss of two listed members. The determination of statutory PTD is met regardless of the earning capacity of the worker. Superior Smokeless Coal & Mining Co. v. Bishop, 1922 OK 91, 85 Okla. 204, 205 P. 497. The first condition is economic PTD. Since most cases deal with economic PTD, the remainder of this section will refer to that condition.
The definition of economic PTD uses the phrase "the incapacity . . . to earn any wages in any employment." It was enacted in 1977 and has been modified several times. Despite the seemingly stringent wording of the definition, the courts have given it a slightly broader interpretation by using the pre-1977 term "substantial gainful employment" when evaluating a claim for PTD.
A total permanent disability within the terms of the Workmen's Compensation Law is not synonymous with total incapacity or total dependence, but means a lack of ability to follow continuously some substantially gainful occupation without serious discomfort or pain and without material injury to health or danger to life.
Ordinarily, a disability cannot be classified as total under the Workmen's Compensation Law where the earning power of the employee is not wholly destroyed and capacity to perform remunerative employment remains. Oklahoma Gas & Electric Co. v. Hardy, 1937 OK 178, 67 P.2d 445. The rule thus announced has certain definite exceptions which exclude from its operation those cases where the capacity of the employee is confined to the performance of work of a slight or trivial nature, and those cases where the capacity to do ordinary manual labor remains, but can be exercised only at the cost of serious discomfort and pain on the part of the employee. Sweetwater Gin Co. v. Wall, 1931 OK 726, 5 P.2d 126.
Dierks Lumber & Coal Co. v. Lindley, 1938 OK 124, 77 P.2d 44.
The question of a man's permanent disability is not to be determined solely by technical formulas defining percentages of disability but is dependent to a large extent on the ability of the individual to perform continuously some substantially gainful occupation notwithstanding his disability.
McClure v. Special Indemnity Fund, 1970 OK 194, 475 P.2d 811.
The vocational rehabilitation sections of the Act bar an order for PTD unless the practicability of restoring the worker to "gainful employment" is first evaluated. When the Supreme Court reviewed the vocational standards for determining PTD, it issued a unanimous decision stating "an injured worker is considered permanently and totally disabled only if the worker cannot be restored to gainful employment following a period of rehabilitation." Mangrum v. Fensco, 1999 OK 78, ¶6, 989 P.2d 461; see also Farm Fresh, Inc. v. Bucek, 1995 OK 44, 895 P.2d 719 (holding that claimant's medical evidence competently supported the award of permanent total disability by overcoming the proof that he may have retained a sufficient residual capacity for work in gainful employment).
The term "substantial gainful employment" is nearly identical to the term "substantial gainful activity" as used in the Guidelines of the Social Security Administration in the determination of total disability.
1.5.2. Other Issues
A rebuttable presumption that the claimant has not sustained a permanent total disability arises when there is evidence that claimant has been continuously employed prior to the hearing. The presumption may be rebutted by medically competent proof that claimant continued to work out of necessity because:
[H]istorically this court has recognized that a person may be compelled by reason of necessity to continue employment even where it may be injurious to health or a threat to life. Further, we recognize that a per se prohibition against a classification of permanent total disability based solely on the existence of continuous post injury earnings creates a policy which appears to penalize those workers forced by necessity to continue employment.
Special Indemnity Fund v. Stockton, 1982 OK 119, 653 P.2d 194.
In the case now under review, it appears that the question properly before the commission, after it had heard evidence of the failure of the operations to correct the respondent's hernia condition, was not whether the respondent had actually performed manual labor after its injury, but whether he was properly able to do the work which he did perform. Sometimes men are impelled by stark necessity or a strong sense of duty and obligation to labor and to seek to carry on long after the human machine has been so broken and destroyed as to seem to make it impossible to drive it further. The wisdom of the effort and the struggle under such conditions may be questioned, but the gallantry of the action should not be penalized. The evidence before the commission showed that the respondent had carried on under the urge of necessity, and that in so doing he had risked both his health and his life, and that the disability under which he was laboring would probably be permanent, and most certainly would be such if he could not be relieved by the help of surgery.
Dierks Lumber & Coal Co. v. Lindley, 1938 OK 124, 77 P.2d 44 (affirming finding of PTD).
For injured workers who have been determined to be permanently totally disabled against the MITF and then seek to reopen the latest injury, the higher rate of temporary total disability is payable only if the worker shows that he is no longer PTD. Emery v. Central Oklahoma Health Care, 2007 OK 28, 158 P.3d 1052
If a denial of PTD benefits is based on the presence of pre-existing disabilities that are unrelated to the underlying harm, the Court must make Crumby findings that assess the extent of the disabilities. Hammons v. Oklahoma Fixture Company, 2003 OK 7, 64 P.3d 1108.
While the claimant has the burden of producing vocational evidence in addition to medical evidence of permanent total disability, an employer is not required to present contrary evidence from a vocational expert to rebut claimant's prima facie case of PTD. Lujan v. St. Mary's Hospital, 2001 OK CIV APP 51, ¶11, 23 P.3d 973.
1.5.3. Competent Evidence
Finding of PTD is a question of fact that will be evaluated on appeal by the any-competent-evidence standard. Farm Fresh, Inc. v. Bucek, 1995 OK 44, 895 P.2d 719; Lujan v. St. Mary's Hospital, 2001 OK CIV APP 51, ¶11, 23 P.3d 973.
220.127.116.11. Supporting PTD
Farm Fresh, Inc. v. Bucek, 1995 OK 44, 895 P.2d 719 (claimant had been employed twice since his accidental injury for a period of about six weeks).
18.104.22.168. Denying PTD
Western Co. of North America v. Nicholson, 1993 OK 82, 854 P.2d 905 (worker who had previous combined 105% disability was not PTD on the theory that the last injury was "the straw that broke the camel's back, [and] pushed him over the edge.")
1.6. Vocational Rehabilitation
When, as a result of the injury, the employee is unable to perform the same occupational duties he was performing prior to the injury, the employee shall be entitled to such vocational rehabilitation services . . . which shall include retraining and job placement so as to restore the employee to gainful employment. . . . If rehabilitation services are not voluntarily offered by the employer and accepted by the employee, the judge of the Court may on the Court's own motion, or if requested by a party may, after affording all parties an opportunity to be heard, refer the employee to a qualified physician or facility 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.
85 O.S. §16A.
1.6.1. Retraining and Job Placement
To establish his right to the vocational benefit the injured employee must show that he is unable to perform the same occupational duties he was performing prior to his injury. The trial court, in its discretion, may then order a vocational evaluation to determine the need, if any, for vocational rehabilitation and job placement services that will help restore him to gainful employment. 85 O.S. §16A.
"An order affording the claimant a vocational rehabilitation evaluation is decisive of the claimant's eligibility for vocational rehabilitation benefits." Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶20, 16 P.3d 1120 (dicta) (holding order for vocational rehabilitation evaluation is a last order for §43C).
Where there is competent evidence that a worker is able to perform the physical tasks required by a job but, because of work-related disability, cannot perform those tasks without creating additional risks of injury to the worker or others, the Workers' Compensation Court may conclude that worker is "unable to perform the occupational duties" he or she was performing prior to the injury. In the case of Supreme Well Service v. Eves, 1993 OK CIV APP 175, 867 P.2d 482, Larry Eves suffered a neck injury on April 17, 1991, and resulting neck surgery. He returned to work on November 23, 1991, as a rig operator, the same type of position he held when injured and had performed since 1958. At the trial on about September 22, 1992, Eves testified that the injury made his operation of the rig dangerous for his co-workers. He argued that working as a rig operator caused him too much pain and was too risky for his co-workers. He claimed he had no other marketable job skills, and sought to learn cabinetmaking. The court order for a vocational evaluation was upheld by the COCA.
If the Court finds that the evidence has met the standard, then "the employee shall be entitled to such vocational rehabilitation services" at an appropriate educational facility (including high school or college) and "shall include retraining and job placement so as to restore the employee to gainful employment." 85 O.S. §16A. If the employee qualifies for benefits, he is entitled to not only vocational counseling and retraining, but also job placement assistance upon completion of the retraining program.
The trial court terminated claimant's vocational rehabilitation benefits when he was academically unable to complete an aviation maintenance course and asked for approval of small engine repair classes in the case of Smith v. Fleming Foods Company, 1998 OK CIV APP 61, 957 P.2d 142. However, the COCA reversed and found that the employer had not discharged its mandatory obligation to retrain the employee. §16A uses the word "shall" in several places. Interpreting its use the COCA held:
The use of the word 'shall' in this statute indicates the Legislature's intent [in] its directive is mandatory. Collard v. Coldiron Line Trucking, 1987 OK CIV APP 52, 740 P.2d 1209. Therefore, the trial court must grant Claimant such vocational rehabilitation services as will restore him to gainful employment, but may exercise 'discretion in tailoring a rehabilitation plan to fit an individual worker's needs.'
J.D. McCarty Center v. Fernandez, 1994 OK CIV APP 121, 889 P.2d 901.
1.6.2. Gainful Employment
This term is not defined in the Act, but it was discussed by Judge Brightmire in the case of Solo Cup Co. v. Brown, 1982 OK CIV APP 28, 660 P.2d 655, when he stated:
The evidence is quite sufficient to support this order. It was not necessary, as Solo contends, for the court to find claimant could not carry on any type of gainful employment whatsoever as a prerequisite to ordering the employer to finance the recommended vocational training. Apparently Solo wants us to commit ourselves to an extremely narrow and unrealistic construction of §16, namely, that if a crippled worker can sell apples or pencils in the town square or perform some type of boring routine task on, say, an assembly line, he is not entitled to vocational rehabilitation regardless of his pre-injury or post-injury interests, aptitudes or abilities. This perception of the statute places exclusive emphasis on the words "gainful employment" and ignores the import of another significant word used by the legislature, namely, "restore." And therein lies the fallacy of Solo's position.
In context of the statutory language the term "restore," by dictionary definition as well as common usage, means "to put (a person) back in a former position, place, rank, or condition … ." Of course, a worker's injuries may be such that he cannot be completely restored to the entire range of his former employment potential and earning capacity. In a situation of that nature the law contemplates rehabilitative restoration as nearly as possible to the worker's pre-injury status taking into consideration the type of work the worker was doing at the time of the injury, his income level and earning capacity, his vocational aptitude, his mental as well as physical abilities and other relevant circumstances.
Substantial gainful activity (SGA) is a term similar to "gainful employment" that is used by the Social Security Administration as a criteria for determining eligibility for disability and SSI benefits. A person who is earning more than a certain monthly amount (net of impairment related work expenses) is ordinarily considered to be engaging in SGA and is not qualified to receive benefits. For 2008 the monthly amount is $940, and the annual changes can be found at the Social Security website.
1.6.3. Evaluation of PTD Status
No person shall be adjudicated to be permanently and totally disabled unless first having obtained an evaluation as to the practicability of restoration to gainful employment through vocational rehabilitation services or training.
A claim for permanent total disability (PTD) must be supported by the report of a vocational expert. At the hearing for PTD the Court generally must choose one of three options: 1) deny PTD and determine the extent of the employee's permanent partial disability, 2) order §16D benefits for the purpose "of evaluating permanent total disability status", or 3) award PTD compensation without a §16D trial period. The trial court can select this last option only if competent evidence supports the conclusion that restoration to gainful employment is not practicable. Mangrum v. Fensco, 1999 OK 78, 989 P.2d 461; Superior Bronze and Granite v. Cole, 2005 OK CIV APP 55, 118 P3d 778. Competent evidence would include expert medical and vocational reports corroborated by the testimony of the claimant.
"[A] trial judge's initial award of benefits in accordance with the provisions of §16D is a temporary determination of a claimant's compensation status pending re-evaluation after vocational rehabilitation is completed. It is not a final adjudication of a worker's permanent disability status." Bronson Trailers & Trucks v. Newman, 2006 OK 46, 139 P.3d 885.
The 2005 amendments to the Act amended §16D to state that the worker shall be entitled to benefits when he is being evaluated or participating in a retraining or job placement program. If a worker is award §16D benefits, payment of compensation commences on the date of the evaluation. At trial this will be the earlier date of the vocational reports that find worker is capable of vocational retraining of job placement. Glass Operating Group v. Hill, COCA, Div II, unpublished.
For discussion of the Multiple Injury Trust Fund, click here.
1.8. Collateral Source Rule
A. No benefits, saving or insurance of the injured employee, independent of the provisions of this act shall be considered in determining the compensation or benefit to be paid under this act.
B. No employee may receive temporary total disability benefits covering the same period of time as unemployment compensation benefits received by the employee as provided by the Oklahoma Employment Security Commission.
The collateral source rule as codified in 85 O.S. 45 applies to workers' compensation actions. In the Blythe v. University of Oklahoma case employer was denied an offset for medical expenses paid by claimant's health insurance. The Supreme Court held the fact that she paid part of the premium was immaterial, and it held:
Claimant is entitled to reimbursement for the amount paid on her behalf by her insurance carrier regardless of Claimant's payment of premiums for such coverage because such coverage was a fringe benefit of her employment for which Employer has no right to set-off. Generally, this Court has held in a tort action that an employer is not entitled to a set-off for an amount attributable to a fringe benefit received by the employee. Handy v. City of Lawton, 1992 OK 111, 835 P.2d 870; Folkestad v. Burlington Northern, Inc., 813 F.2d 1377 (9th Cir. 1987). Although these cases are not workers' compensation cases, they are common law tort actions brought by employees against their employers and they address the issue of whether the employer is entitled to offset liability for health insurance benefits recovered by the employee. . . . These cases further provide "[i]f the fund is for general hospital and medical coverage upon which the insured may make a claim without regard to liability on the part of the employer, the policy is a fringe benefit, and is part of the employee's income. The collateral source rule prohibits a set-off of benefits received thereunder by the employee."
Blythe v. University of Oklahoma, 2003 OK 115, 82 P.3d 1021
In Dayton Tire & Rubber Company v. Vires, 1975 OK 100, 538 P.2d 194, the claimant, during temporary total disability, had received "sick benefit payments" under a group coverage insurance policy provided by the employer without contribution. The Supreme Court held the sick benefit payments could not be credited against the Workers' Compensation award. In doing so, the Court adopted the reasoning in Alabam Freight Lines v. Chateau, 57 Ariz. 378, 114 P.2d 233 (1941), that the one benefit was based on Workers' Compensation law and the other upon the contract between the employer and its insurer for the benefit of the employees.
Offset of award was denied for payments to worker by reason of an insurance policy afforded by the joint efforts of worker and his employer. Tidewater Associated Oil Co. v. Ale, 1942 OK 373, 130 P.2d 991.
2. Death Benefits and Dependency
The amount of death benefits are determinable on the date of death, not date of injury. Independent School District No. 89 v. McReynolds, 1974 OK 136, 528 P.2d 313 (lump sum benefits); Matter of the Death of Knight,1994 OK 74, 877 P.2d 602 (weekly benefits).
The insurance carrier with coverage on the worker's date of injury is liable for the dependents death benefits when the worker later dies from work-related injury. Shawver & Sons, Inc. v Jenifer Wise, 2010 OK CIV APP __, __ P.3d __.
Natural minor children of a deceased worker are eligible for benefits even when the worker's parental rights have been terminated. Meadow Gold Dairies v. Oliver, 1975 OK 67, 535 P.2d 290.
A joint-petition settlement of an injured worker's claim, during his lifetime under the provisions of 85 O.S. 1961 § 84, does not bar the claim of his widow, children, or next of kin, for death benefits under the provisions of 85 O.S. 1961 § 22, upon the death of the worker from his injuries. Haco Drilling Co. v. Hammer, 1967 OK 71, 426 P.2d 689; Viersen & Cochran Drilling Company v. Ford, 1967 OK 12, 425 P.2d 965.
Death beneficiaries may not waive, release or commute their claims for death benefits without court approval. A settlement agreement signed by a beneficiary during the lifetime of the injured worker does not estop the beneficiary from prosecuting a claim for death benefits. National Gypsum Company v. Brewster, 1969 OK 185, 461 P.2d 593.
2.1. Common Law Marriage
A common law marriage is formed when "the minds of the parties meet in consent at the same time." Reaves v. Reaves, 1905 OK 32, 82 P. 490, 492.
Some evidence of consent to enter into a common law marriage include: cohabitation, actions consistent with a spousal relationship, recognition of the marital relationship by the community, and declarations by the parties. Standefer v. Standefer, 2001 OK 37, 26 P.3d 104.
Where the right of a party to relief is dependent upon the existence of a common law marriage, the burden is upon that party to establish the facts essential to constitute such a marriage. In re Trope's Estate, 1942 OK 49, 124 P.2d 733.
Such relationship must be established by evidence that is clear and convincing. However, the relationship may be proved through both direct and circumstantial evidence. Maxfield v. Maxfield, 1953 OK 390, 258 P.2d 915; Standefer v. Standefer, supra. Clear and convincing evidence is the "measure of proof which produces in the nind of the fact finder a firm belief or conviction as to the truth of the allegation(s) sought to be established." Barnes v. Oklahoma Farm Bureau Mutual Insurance Co., 2000 OK 55, ¶34, 11 P.3d 162, 175.
If either or both parties enter into a common-law marriage within a divorce decree's six-month prohibitory period to any except their former spouse, then the marriage is voidable until after the six-month prohibitory period. After expiration of the prohibitory period, the marriage ripens into a valid common-law marriage. Claimant died prior to the expiration of the prohibitory period, and he could not have entered into a binding marital relationship with anyone except his former spouse. Accordingly, the attempted common-law marriage was voided by his death and failed. Benefits to the putative common-law wife are denied. Brooks v. Sanders, 2008 OK CIV APP 66, 190 P.3d 357 (released for publication).
However, domestic relations attorney Carolyn Thompson argues that the six-month period is an unconstitutional, ancient relic that violates the rules established in U.S. Supreme Court privacy cases, in particular Zablocki v. Redhail, 434 U.S. 374 (1978).