Crosswalk and Disposition Tables

The Oklahoma Workers' Compensation Act is repealed, and the Oklahoma Workers' Compensation Code is adopted. Most of the old provisions have been retained, but the numbering is new and the subsections have been shuffled. For example §3 (Definitions) of the Act is now §308 of the Code.

Tish Sommer, Special Counsel of the Oklahoma Workers' Compensation Court, alleviated this chaos by creating crosswalk and disposition tables that permit a quick, painless transition from the Code to the Act and from the Act to the Code.

The crosswalk table lists every section and subsection of the Code and points to its old location in the Act. The disposition table lists each provision of the old Act and points to its new location in the Code.

For those who are regular users of my website, the tables will be conveniently listed in the sidebar.

Budget Outlook for Oklahoma

If you are unfamiliar with the Oklahoma Policy Institute, go to its website and bookmark it, add it to you feed reader or follow it on Twitter. It is the premier source for "timely and credible information, analysis and commentary on policy issues affecting Oklahoma."

Often quoted by the Tulsa World and Daily Oklahoman for its continuing series analyzing our state's fiscal policy and planning, its latest blog post is must-reading if you want the details and not just the spin.

Its latest analysis is a call to government to develop a long-term plan for revenue and expenditures, not just dealing with "this year's shortfall." According to David Platt, executive director, "we face a short-term outlook in which overall budgets are falling or flat; in FY ’14, three budget cycles from now, we project that the budget will still be less than FY ’08." 

Every Oklahoman should become familiar with the term "tax expenditures." It is a budget term that essentially means depleting our tax base by giving tax exemptions, deductions, incentives, credits and the like that allow taxes not to be paid when they otherwise would. You didn't here about this until OKPolicy released its research early this year and reported that "[t]he total cost of tax expenditures - at least $5.6 billion in FY ’08 – equals more than 75 per-cent of total state appropriations and grew by over $1 billion, or 23 percent, in just two years."

The easy answer is to keep on doing what we've been doing, but OKPolicy gives us hope that farsighted, informed decision-making will lead to a stronger Oklahoma.

IME Report Writing

In Oklahoma workers' compensation reports from independent medical examiners are prepared by physicians who are either court-appointed or hired by one of the parties. The rules for drafting a competent report that will not only be admissible in Court, but also be credible on the issues to be decided, are at first glance hazy and ill-defined.

Former Judge Mary Black has cut through the fog with a report that she presented at the 2009 Court Educational Conference. While she gave the program at a breakout session, most of the non-medical attendees were listening to another speaker; and attorneys and claim handlers may have missed her speech.

The paper, IME Reports - Writing for Physicians, has been posted on my website. It is the best explanation of the myriad rules and pitfalls of report writing. Worth reading by those who write reports and by those who study and interpret them.

NCCI Reports Continuing Decline in Claim Frequency

According to NCCI claim frequency decreased in 2009 by 4.0% from 2008 (last year the annual decline was 3.4%). This continues a twenty-year downward trend that is expected to extend into 2010. You can read the full research report on its website, www.ncci.com.

Much of the reason for the current decline is the weakness in the job market. My colleagues and I often speculate about the impact of recession and recovery on claim frequency. NCCI's research explains it this way:

". . . economic recessions typically put additional downward pressure on claim frequency. This is because, during recession, there is less ― 'job creation', which translates into a more experienced, and thus less accident-prone, workforce. Additionally, during recessions, heightened ― 'job destruction' puts upward pressure on frequency as laid off workers may look to workers compensation for wage continuation. Taken together, NCCI research concludes that, during recessions, the impact of lessened job creation outweighs the impact of heightened job destruction, thus causing frequency to drop more than it would otherwise. During economic recoveries, as job creation picks up and job destruction abates, the proportion of inexperienced workers increases, thus putting upward pressure on frequency. However, unless the economic recovery is vigorous, this upward pressure is weaker than the general downward trend in frequency."

Congratulations to Owen Evans and David Reid

Oklahoma Gov. Brad Henry appointed two Tulsa attorneys to the Workers' Compensation Court. David Reid succeeds Judge Mary Black, and Owen Evans will take my place on the Court. Let us all offer our congratulations and best wishes to both. They are seasoned lawyers who will hit the ground running.

For now, I plan to continue in the work comp arena. Keeping the Workers' Compensation Law website updated remains a priority. As things develop, I will keep you posted.

To Abey, or Not To Abey.

A long, long time ago the word "abeyance" crept into our workers' compensation lexicon. According to The Free Dictionary by Farlex, it means temporarily suspended, on ice, in cold storage, hanging fire. The term does not appear in the Oklahoma statutes.

Texas Jury Awards Worker $70M

That's right, worker awarded $70M in Texas case. That's M as in million. Read the account of this collosal verdict in the Journal-Record. It includes $20M for claimant's attorney fees. That's M as in million.

This monster verdict would not have been possible without the Texas workers' compensation reform that allowed employers to opt-out. Surely this will lead to alot of finger pointing and calls for more reform or a return to the old system. And the beat goes on. . . .

Annual Change in Mileage Reimbursement

From the OSCN website:

The Internal Revenue Service has announced a decrease in the mileage reimbursement rate, effective January 1, 2010, to $0.50 per mile. This is a decrease from the $0.55 rate for 2009. (See IR-2009-111, Dec. 3, 2009, Internal Revenue Procedure 2009-54). The new rate is for travel incurred on and after January 1, 2010, not for 2009 travel reimbursement claims submitted after January 1st.

Weekend Reading

I just added OKPolicy.org to my Favorites Blogroll in the sidebar. Oklahoma Policy Institute began operations on January 28, 2008. It is a results-oriented, analytical organization "aimed at alleviating poverty, promoting fiscal responsibility, and expanding economic opportunity." You might want to read the article on the closing of the Mercury Marine plant in Stillwater. The company's tactics have angered the people of Oklahoma (the loser) and Wisconsin (the winner).

Nebraska Appleseed, a nonprofit, nonpartisan, public interest law project, has published its analysis of the Nebraska meat-packing industry, "The Speed Kills You." For some this may be all it takes to become a vegetarian. However, the report has some worthy ideas for improving the workers' compensation system beginning at page 49. One is to set every case for hearing within six months of filing the claim. In Oklahoma we could shorten this to two or three months, thus reducing lost worker time. Something to think about.

A Fool's Gambit

When it comes to workers' compensation reform, why or why can't we be more like Texas. . .or Kansas. . .or Missouri. . .or this time, Arkansas? Well, take your pick, because yet another state by state scorecard for workers' compensation has been published. Read the analysis and conclusions in Risk and Insurance, one of my favorite websites.

When ranked in the categories of Low Lost Time Frequency, Short Duration of Disability, High Benefit Generosity, Low Insurance Cost, the states received a letter grade and a composite ranking from 1 to 9. Oklahoma ranked 7 (C+).

But look, Arkansas ranks 3 (A-). Isn't a group working on a "modified" Arkansas plan for another round of workers' comp reform. Did anyone notice that Arkansas ranks near the bottom for injury benefits? Only seven states have lower benefit rankings. It sounds so high-minded to say we will scrap the old system for a new high performing one that moves us to the head of the class. But what are the hidden costs and tradeoffs? For Arkansas low benefits (C) equals low costs(A+). Sounds easy.

What about the number one state, Massachusetts? It has high benefits (A+) and low cost (A+). They have worked at improving their system for 15 years, starting under Republican governor William Weld --- not your usual 90-day wonder that we are always promised. They broadened the number of covered workers by eliminating uninsured independent contractors. In Oklahoma we try to make it easier to work without coverage. They tuned up their existing system by cracking down on the fraudulent underreporting of wages. Why is there more talk about that?

In the final analysis, modeling Oklahoma after another state is a fool's gambit, taking an uncalculated risk for an intangible gain. Let's face it. We may never get high marks in some of the categories. For example, duration of disability may be influenced by unreported factors, Oklahoma's consistently high rankings in obesity, heart disease and diabetes. This complicating factor may never change and thus dampens any attempt to reduce lost time. So why should we throw out the baby with the bath water, and fill the pan with another state's bath water?

Instead, we should be committed to continuously improving the existing system. Our mission should be to get workers back to work as expeditiously as possible. One of our goals to accomplish this mission should be to streamline the authorization process for medical treatment. We will measure of our success by steadily climbing up the rankings ladder, not taking one giant step to the top.

LexisNexis Top 25 Blogs

As the blogosphere of workers' compensation information expands, how do we find the better blogs? LexisNexis, publisher of Larson on Workers' Compensation, answers by annually honoring the Top 25 Blogs for Workers' Compensation and Workplace Issues.

I am delighted that Judge Tom Talks is one of the Top 25 in the category of Best Individual Bloggers. JTT is described as the "quintessential 'virtual watercooler.'" I'm not sure what that means, but I think it refers to stripping out the legalese and using a conversational style.

Our keynote speaker at the Stillwater Conference, Jon Coppelman, is again selected in the category of Best Ongoing Achievement for the "gold standard of workers' compensation blogs," Workers' Comp Insider. Congratulations, Jon!

For work-related injuries occurring on or after November 1, 2009 the rates of compensation for temporary total disability (TTD), permanent total disability (PTD), and death benefits will increase to $717 per week, and to $359 for permanent partial disability (PPD).

In the past, the court administrator has been required to adjust the rates every three years. In the legislative session just ended, SB901 was enacted to require annual adjustments based on the state's average weekly wage as determined by the Oklahoma Employment Security Commission. The new rates will be effective until October 31, 2010.

Register for Stillwater Educational Conference, 2009

"What Would the Judge Do?" That's the theme of the Workers' Compensation Educational Conference to be held on September 10-11, 2009 at the Meridian Technology Center in Stillwater, Oklahoma. You can read the program agenda and register now at the Meridian website.

Each seminar topic will include the active participation of one or more of the Workers' Compensation Court judges. It is your chance to learn how to optimize the probability of winning your claim or defense by hearing from those who will decide the issues.

Designed for human resource managers, attorneys, nurses, nurse case managers, claims representatives, risk and safety professionals, and rehabilitation specialists, this seminar is sponsored by the Oklahoma Workers' Compensation Court, in cooperation with the Meridian Technology Center and the Workers' Compensation Section of the Oklahoma Bar Association.

PS: Due to space limitations at the conference center, register early. This is an opportunity to network with judges, claims handlers, doctors, claimant's attorneys, defense attorneys, and other service providers and their staffs. Did I forget to mention the reception at Eskimo Joe's on Thursday evening!

Jason Clark is CEO of CompSource Oklahoma

The board of directors of CompSource Oklahoma has named Jason Clark as the CEO of the Oklahoma workers' compensation insurance company. He replaces Terry McCullar who resigned March 14 to head a Dallas-based private insurance carrier. Clark served as director of claims under McCullar, and then as interim president while the board made a wide ranging search for his successor.

Health Care and Medicare in McAllen, Texas

With a per capita income of twelve thousand dollars McAllen and Hidalgo County, Texas constitute one of the nation's poorest regions. However, it has one of the highest levels of Medicare spending per person. Only Miami spends more. At fifteen thousand dollars per enrollee, the annual spending is three thousand dollars per year more than its per capita income. Why? Is there more disease because of the poverty? Are medical services better? Despite the 2003 Texas tort reform, could the threat of malpractice be forcing unnecessary testing? What is causing costs to skyrocket in this unlikely location?

The New Yorker magazine examines these issues and makes some startling observations in "The Cost Conundrum, What a Texas town can teach us about health care."  Among them: "[t]he primary cause of McAllen’s extreme costs was, very simply, the across-the-board overuse of medicine."

If you are interested in Medicare costs and the national health care debate, this will be good weekend reading. Also, take a look at the NYTimes article,  Health Care Spending Disparities Stir a Fight, for congressional/political responses to the New Yorker article and the geographical disparity data gathered by Dartmouth Medical School.

Enjoy!

Wellness

If you are interested in wellness, you would do well to subscribe (by feed reader) to the NYTimes blog, "Well."

It covers a broad range of wellness topics. The latest, Medical Bills Cause Most Bankruptcies, reviews the results of a study published in the American Journal of Medicine. In 2007 medical problems contributed to 62.1 percent of all bankruptcies. Even those who have health insurance were caught in the fiscal trap.

Congratulations, Judge Kent Eldridge

Gov. Brad Henry has selected Judge Kent Eldridge for the position of Presiding Judge of the Oklahoma Workers' Compensation Court. He succeeds Judge Mary Black and will serve for two years. Judge Eldridge has picked Judge Michael J. Harkey to be Vice Presiding Judge.

Effect of Recession on Workers' Compensation

Wondering about the impact of the economic downturn on workers' compensation claims? It seems to be a mixed bag. The bloggers at LynchRyan have posted a roundup of current articles with links for easy viewing.

Lower claims frequency due to reluctance of employees to file claims may be offset by plant closings that trigger multiple claims. Oklahoma hasn't been hit as hard as some states by the recession, but plant closings in Antlers (Weyerhauser) and Ponca City (Tyson) are symptoms of what many economists believe is a lengthy growth stagnation.

Be a Hero on Your Own Time

No good deed goes unpunished. Especially if you work in Arkansas.

McDonald’s employee Nigel Haskett took action when he noticed a woman getting smacked in the face in the Arkansas store where he was working. Video captured him throwing the attacker out of the store. Outside the attacker took a gun out of his car and shot Haskett three times in the chest and stomach.

Haskett lived. The judge who sentenced the attacker called him a hero. McDonald's got the benefit of the goodwill and public relations bonanza. What did Nigel get? Medical bills totalling $300,000. His claim was denied by the managers of the McDonald's own-risk insurance trust. They say it did not arise out of and in the course of his employment because rescuing customers is not part of his regular duties.

The case is plodding its way through the Arkansas workers' comp system, and Haskett hopes he will prevail after a long legal battle.

If this had happened to Nigel in Oklahoma, would his claim be compensable? Probably not.

Only a few cases address whether emergency acts outside the worker's regular duties are within the course and scope of employment. Compensable injuries may arise from emergencies if the worker is injured while 1) protecting the employer's property from harm; 2) protecting passengers on a public conveyance; or 3) helping a coworker, even one hired by another company but working with the claimant on the same job site.

But, Nigel would fare no better in Oklahoma under the 1972 decision in White v. Milk Producers, Inc., 1972 OK 48, 496 P.2d 1172. Alma White was injured while assisting someone injured in an automobile accident in the parking lot of the shopping center where the she worked (parking lots are part of the business premises). Her place of injury was in front of a store adjoining the store where she worked. The Supreme Court held that this was solely a volunteer act, having nothing to do with employment or with the furtherance of the her employer's interests, and a denial of benefits was sustained. The Supreme Court praised claimant for being a good citizen, but denied the claim because she was acting as a volunteer.

This case needs to be reexamined in light of the 1985 amendments that permit claims that arise from acts that are not "purely personal." The actions of good samaritans are the ultimate selfless, not personal or "purely personal," acts. The question should be whether such acts have a connection to the business of the employer.

Florida is one of the states that allows deviation from scope of employment when "such deviation or act is in response to an emergency and designed to save life or property."

Medical Scanning Problems

Today's New York Times runs an article on medical imaging, Regardless of Quality, Medical Scans Cost the Same. You will hear yourself saying, "yeh, I thought so."