Penalty, Interest, Attorney Fees, Contempt

1. Penalties

1.1. Failure to Pay TTD

If the employer has notice of the injury and the injury is not disputed and weekly temporary total disability benefit payments are not commenced within twenty (20) days or if any subsequent installment of temporary total disability benefits is not made within ten (10) days after it becomes due, the insurer of the employer shall pay to the employee a penalty of fifteen percent (15%) of the unpaid or delayed weekly benefits. This penalty may be imposed by the Court for good cause shown on a case by case basis. [Emphasis added.]
85 O.S. §24.2B

1.2. Failure to Pay Travel Expenses

In the event a respondent fails to pay travel expenses as required by an order of the Court within twenty-five (25) business days of such order, the Court shall assess a Five Hundred Dollar ($500.00) penalty against the respondent and payable to the claimant.
85 O.S. §30A(2)

1.3. Failure to Pay Final Award

Failure for ten (10) days to pay any final award or any portion thereof, as ordered shall immediately entitle the beneficiary to an order finding the respondent and/or insurance carrier to be in default and all unpaid portions, including future periodic installments unpaid, shall immediately become due and may be immediately enforced as provided by Section 42 of this title.
85 O.S. §41(C)

Unaccrued death benefits, permanent total benefits and temporary total benefits may not be accelerated and commuted to lump sum upon employer's or carrier's ten-day default in paying award. Pepsico v. Tate, 1991 OK 13, 806 P.2d 644; 85 O.S. §41(C).

1.4. Failure to Pay Medical Charges

Failure to offer payment of charges within sixty (60) days of receipt of the bills may limit the applicability of the Schedule of Medical and Hospital Fees.
Rules of the Workers' Compensation Court, Rule 50(C)

Application of this penalty was discussed in City of Duncan v. Tulsa Spine Hospital, 2008 OK CIV APP 70, __ P.3d __. Sixteen months after receiving Hospital's charges of almost $80,000 City paid $20,000 pursuant to the Medical and Hospital Fee Schedule. A hearing was conducted to determine whether the delay was reasonable. The trial judge held it was "unreasonable" and awarded an additional $50,000. COCA sustained the order holding that it was not necessary for the Hospital to show actual damages or injury caused by the delay; and "prejudice to providers may be presumed where payment is made beyond the sixty day Rule 50(C) standard."

1.5. Motion to Revoke

If any insurance carrier intentionally, knowingly, or willfully violates any of the provisions of the Workers' Compensation Act or any published rules or regulations promulgated thereunder, the Insurance Commissioner, on the request of a judge of the Court or the Administrator, shall suspend or revoke the license or authority of such insurance carrier to do a compensation business in this state.
85 O.S. §42(B)

Motions to revoke or suspend the insurance license of any carrier, pursuant to 85 O.S., Section 42(B), shall first be presented to the Court Administrator for disposition. The Administrator may refer the matter to a regularly assigned judge of the Court for fact finding and determination. Appeals from the decision of the trial judge, or the Administrator shall conform to Rule 60. If it is determined that an insurer's license should be suspended or revoked, a recommendation shall be made to the Insurance Commissioner.
Rules of Workers' Compensation Court, Rule 64

1.6. Motion to Hold in Abeyance

85 O.S. §25 provides: "An employee claiming or entitled to compensation under the Workers' Compensation Act, shall, if ordered by the Court, submit himself for medical examination. . . . If an employee refuses to submit himself to examination, his right to prosecute any proceeding under the Workers' Compensation Act shall be suspended, and no compensation shall be payable for the period of such refusal."

Court Rule 39A permits suspension of compensation upon request indicating that respondent has given the claimant reasonable notice to appear for a medical examination and has paid claimant the statutory travel expenses. The burden then shifts to the claimant to show cause that there is a reasonable, credible excuse for the failure to appear.

The forfeiture penalties of §25 and Rule 39A are not automatic. Due process of law requires that after compliance by the employer with Rule 39A claimant should be afforded a hearing to show that his failure to appear should be excused. McMinn v. State Industrial Court, 1961 OK 280, 366 P.2d 954. An injured worker may not be denied compensation because of refusal to accept medical treatment tendered by his employer, unless it be shown that such refusal was arbitrary and unreasonable. Macklanburg-Duncan Company v. Wimmer, 1955 OK 24, 280 P.2d 1001.

Neither the statute nor the rule empowers the Court to suspend compensation for failure to appear at deposition or for regularly scheduled or routine medical treatment. Willful failure to appear for deposition is subject to discovery penalties such as assessment of cost and attorney fees, dismissal of the claim or other sanctions.

Employer's duty to provide medical treatment creates the implied obligation of the employee to accept reasonable remedial measures that will cure or improve his condition. Cases discussing this obligation are cited in the topic, Temporary Compensation, Non-Compliance with Medical Treatment, and Refusal to Undergo Medical Treatment. The modern rule states that a claimant does not forfeit compensation benefits when a medical condition, not caused by claimant, requires that the treatment being provided be postponed.

2. Interest

2.1. Appellate Orders

[W]hen the order of the Judge of the Court making an award to a claimant is appealed by the employer or the insurance carrier, interest shall be allowed on the accrued amounts of the award due from the date the award was filed, if the award is not modified or vacated on appeal.
85 O.S. §3.6A

Claimant is entitled to interest on those net funds which he has been awarded, but have been otherwise withheld by the employer and/or the employer's insurance carrier. To the extent Claimant's award remains undisturbed on appeal, he is entitled to interest thereon. R & R Trucking, Inc. v. Vinson, 1991 OK CIV APP 128, 822 P.2d 690 (interest awarded on net funds payable to claimant after appeal resulting in offset of award for overpayment of TTD by employer).

2.2. Failure to Pay Compensation

Any compensation awarded and all payments thereof directed to be made by order of the Court, except in the case of an appeal of an award or an award of compensation from the Multiple Injury Trust Fund, shall bear interest at the rate of eighteen percent (18%) per year from the date ordered paid by the Court until the date of satisfaction.
85 O.S. §42(A)

2.3. Undisputed Death Claim Appeals

85 O.S. §3.6D

3. Attorney Fees

Attorney is entitled to be compensated for reasonable value of post-award services he has rendered to enforce a workers' compensation award and to effect a subsequent settlement in lieu of performance of the award. Payne v. Archer, 2001 OK CIV APP 17, 19 P.3d 327.

The Court can address the inappropriate conduct of the parties through an award of attorney fees when it finds a party acted in bad faith, vexatiously, wantonly or for oppressive reasons. Bond v. Fox Building Supply, 1992 OK 19, 826 P.2d 599.

Injured worker is entitled to attorney fees and costs for unreasonable, unfounded denial of rehabilitation benefits. Solo Cup Co. v. Brown, 1982 OK CIV APP 28, 660 P.2d 655; 85 O.S. §30.

Court Rule 28(E) permits the Court to "impose up to the total cost of the proceedings, including attorney fees, against a party who is determined to have unreasonably sought or denied benefits, including medical benefits."

"If during the Prehearing Conference, the trial judge finds the party seeking the Prehearing Conference has done so in an effort to delay, harass or increase costs, the judge shall assess all costs and attorney fees for such conference against the party requesting the conference." Rules of the Workers' Compensation Court Rule 54.

Failure to follow the guidelines of State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, in determining an award for attorney fees "constitutes an abuse of discretion requiring reversal." Spencer v. Oklahoma Gas & Electric, 2007 OK 76, 171 P.3d 890.

"[T]he cost assessment penalty of 85 O.S. §30, in the context of a §14 hearing to determine reasonableness of health care costs, is restricted to instances in which the claim itself is unfounded and not simply where the amount of reasonable cost has been placed at issue . . ." The penalties of §30 should not be assessed "unless the claim or denial thereof is outside the bounds of credibility," and assessment of the total cost is not authorized "in the absence of a finding of unreasonableness" of the claim or its denial. McDonald's v. Groves, 1982 OK 111, 652 P.2d 281; Pinnacle Rehabilitation Hospital v. Rivera-Villareal, 2008 OK CIV APP 115, 215 P.3d 823.

When a medical care provider has brought a claim in the Workers' Compensation Court to obtain payment for services, a party who prevails in full on the claim shall be entitled to a reasonable attorney fee.
85 O.S. §14F(5)

[A] medical provider has prevailed in full under § 14(F)(5) so as to be entitled to an attorney fee if it receives the maximum amount reimbursable under the Fee Schedule as determined by the Workers' Compensation Court Administrator.
Pinnacle Rehabilitation Hospital v. Rivera-Villareal, supra.

3.1. Standing to Object to Attorney Fee Award

Generally, only the claimant has standing to challenge an award of attorney fees. Eagle Picher Mining & Smelting Co. v. Lamkin, 1998 OK CIV APP 170, 968 P.2d 352. The logic behind this rule is that the insurer is liable for the award and attorney fees are not an additional expenditure to the insurer but are paid by the claimant from the award. Therefore, the attorney fees are paid on behalf of the claimant from the claimant's funds.
Special Indemnity Fund v. Flagg, 1993 OK 28, 849 P.2d 395.

However, the employer will have standing if the amount of the fee will result in the Respondent paying a portion of the fee. Special Indemnity Fund v. Flagg, id.

3.2. Quantum Meruit of Attorney Fees

Rule 1.5(e) of the Oklahoma Rules of Professional Conduct does not prohibit a law firm from sharing fees with a former partner under a separation agreement for work arising from matters that were entrusted to the firm before the partner's departure. Frasier, Frasier & Hickman, L.L.P. v. Flynn, 2005 OK CIV APP 33, 114 P.3d 1095 (approved for publication by the Supreme Court).

Payne v. Archer, 2001 OK CIV APP 17, 19 P.3d 327 (post-award attorney fees and division of fees between attorneys)

Carillo v. Crownover, 1999 OK CIV APP 2, 974 P.2d 685 (attorney fees award in the underlying permanent partial disability award is a factor that may be considered by Workers' Compensation Court when determining the fee to be awarded in the permanent total disability award following a change of condition for the worse.)

An employer has no interest in the attorney's fee award as to occupy the status as one "aggrieved" by the trial court's order awarding attorney's fees. Chamberlain v. American Airlines, 1987 OK 62, ¶7, 740 P.2d 717, 720 ("attorney fees are … paid from the claimant's award"); accord, Oklahoma Dep't. of Transp. v. Barnes, 1991 OK CIV APP 61, 818 P.2d 923. City of Purcell v. Wilbanks, 1998 OK CIV APP 170, 968 P.2d 352.

4. Contempt of Court

Rules of the Workers' Compensation Court, Rule 61 - CONTEMPT

Judges of the Workers' Compensation Court may punish for direct contempt pursuant to Sections 565, 565.1 and 566 of Title 21 of the Oklahoma Statutes. 85 O.S. §1.2J

Failure of witness to attend pursuant to subpoena. 85 O.S. §80; 85 O.S. §1.2F

Unless otherwise stated, the content of this page is licensed under Creative Commons Attribution-ShareAlike 3.0 License