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BB&B v. Bonat - 8 Week Limitation for Soft Tissue

Even though this case was in the summer of this year, it is very signifigant and I thought I would post it. I pulled this off of Judge Tom's blog.

BB&B v. Bonat: Return of the 8-Week Limitation for Soft Tissue
The soft tissue provision inserted into the Workers' Compensation Act in 2005 contains a patent ambiguity. Language at the beginning of 85 O.S. §22(3)(d), Soft Tissue, limits temporary total disability compensation ("TTD") for nonsurgical soft tissue injuries to 8 weeks plus a 16 week extension if surgery is recommended. The ambiguity arises when a subsequent section states "[i]n all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section . . .." [Referring to 85 O.S. §22(2) which allows up to 300 weeks of TTD].Three divisions of the COCA construed the ambiguity by overriding the 8 + 16 limitation and allowing TTD in excess of 24 weeks for nonsurgical soft tissue cases.In Bed, Bath & Beyond v. Bonat, a 9-0 decision written by Justice Tom Colbert, the Oklahoma Supreme Court addressed the issue and stated "this Court provides this analysis as binding authority for resolution of the ambiguity."Justice Colbert succinctly stated the Court's conclusions in ¶12:1. The legislature intended to limit TTD for certain soft tissue injuries;2. TTD for non-surgical soft tissue injuries is limited to 8 weeks;3. If surgery is recommended the trial court may extend TTD for up to 16 additional weeks while waiting to perform the surgery; and4. Since there is no reference to TTD and medical benefits when a soft tissue surgery is performed, §22(2)(c) applies allowing up to 300 weeks of TTD.In an apparent attempt to limit claimant's TTD to 24 weeks, the employer withheld authorization for surgery until the outcome of the appeals. The Court held "[t]he presence of a soft tissue injury is a medical question to be determined by the Workers' Compensation Court based on competent medical evidence, not on an employer's decision to authorize or refuse to authorize recommended surgery. The claim in this matter is not subject to the soft tissue injury time limitations set forth in section 22(3)(d)."This holding fits squarely with the doctrine of "extra-statutory forfeiture of benefits" pronounced by the Court in BE&K Construction v. Abbott. Employers will not be allowed to avoid compensating their injured workers through unilateral actions outside the Workers' Compensation Act.

NCCI boosts Work Comp Rates for Oklahoma

NCCI (National Council on Compensation Insurance) recently hosted its annual advisory Forum at the Oklahoma City Waterford Hotel. They discussed the latest year’s results and trends for Oklahoma, surrounding states and how they related to the National Results. NCCI is charged with maintaining adequate rates and has taken a 9.1% rate increase in Oklahoma. Carrier’s rates are not directly determined by the rate increase as it is only a part of the total rate. Each carrier will adopt these rates at their own pace and could use credits to offset some of the increases. Compsource Oklahoma files their rates separately and may differ from this increase. We have attached the entire presentation in color for download.

CLICK HERE TO DOWNLOAD PRESENTATION FROM NCCI

How High Tech Sleuthing Helps Adjuster find Fraud

Here is a decent article from Risk and Insurance Magazine that talks about the new resources available to adjusters to investigate fraudulent claims.

Click Here for Article

NCCI's State of Workers Compensation Summary Article - National Basis

Click for Article on State of National Workers Compensation by NCCI

The Oklahoma Information will be available shortly and I will post that when available.

Texas Supreme Court Revisits WC Case after Pressure from Lawmakers

DALLAS — The Supreme Court of Texas held a rare rehearing of a unanimous decision Thursday, listening to arguments about whether it erred last year in ruling that a contract employee who suffered on-the-job injuries couldn't sue the company that owns the work site.

The court's decision to revisit the case came after a bipartisan group of Texas lawmakers — along with labor groups and accident victims — protested the original ruling, saying justices "flat-out got it wrong."

"It's a reckless deregulation of Texas workplaces," said Craig McDonald, the director of Texas for Public Justice. "If this ruling is allowed to stand, there will be more accidents, more injuries and more preventable deaths."

Turbine mechanic John Summers was a contractor when he suffered back, shoulder and arm injuries in a 2001 accident while repairing a leak on a hydrogen generator at an Entergy Gulf States plant in Bridge City. He sued Entergy, a power provider with regulated utilities in Louisiana, Mississippi, Arkansas and Texas.

The court said Entergy was immune from the lawsuit because Summers was covered by a workers' compensation policy purchased by the company. The ruling extended immunity provisions to work site owners when such provisions had previously shielded only employers sued by their direct employees.

The court's decision also means that a "property owner could act as its own general contractor and could provide workers' compensation coverage to its subcontractors' employees," said Lee Parsley, an attorney for Texans for Lawsuit Reform. "That decision was correct."
In arguing before the court Thursday, Entergy attorney Jacqueline Stroh told the justices that "nothing warrants any consideration of this original opinion."

But Summers' attorney Collyn Peddie argued the ruling rendered the term general contractor "meaningless and absurd," and opened loopholes for most Texas companies to claim immunity from workers' lawsuits.

Peddie also argued that the Legislature never intended work site owners to be immune from injury lawsuits from contractors, a point supported in a brief signed by two Democratic and two Republican lawmakers. The lawmakers said the Workers Compensation Act provides protection from liability to employers who have purchased workers compensation insurance for their direct employees but was not meant to extend to employers who hired independent contractors.
"There is nothing in the legislative history that says they intended this result," Peddie said.

An unusual coalition that brought together union leaders and both Republican and Democratic lawmakers has criticized the ruling, albeit for different reasons. State Rep. Craig Eiland, a Democrat from Galveston, said the court overstepped its authority and "caused chills and shivers among legislators ... who do not want activist courts."

Other critics include relatives of the 15 workers killed in a 2005 BP plant explosion, who in April urged the Legislature to undo the court's ruling. Some of those hurt in the explosion wouldn't have been able to sue, said Eiland, whose district includes Texas City, site of the BP plant explosion.

"If this law had been in place, people ... who were maimed, crippled and burned would have been limited to Texas workers compensation," Eiland said.

The hearing was held at Southern Methodist University's Dedman School of Law. The state supreme court routinely holds hearings at law schools and other sites around the state.

NEW PERMANENT PARTIAL DISABILITY AND DEATH BENEFITS CHARTS NOW AVAILABLE FOR OKLAHOMA

Permanent partial disability and death benefits charts FOR WORK-RELATED INJURIES AND DEATHS OCCURRING 11/1/08 THROUGH 10/31/11 are now available on the "Laws/Rules/Charts" page. Paper copies may be purchased at both Court locations. Direct requests for purchase by mail to the Workers’ Compensation Court, 1915 N. Stiles Avenue, Oklahoma City, OK 73105, Attention: Records Department.