Recreational Activities Are Not Compensable Under Oklahoma Law

The 2005 amendments to the Oklahoma Workers' Compensation Act excluded recreational and social activities from the definition of injury. "Compensable injury" shall not include . . . injury incurred while engaging in, performing or as the result of engaging in or performing any recreational or social activities. 85 O.S. §3(13)(d), effective July 1, 2005.


Recreational injuries occurring prior to July 1, 2005, are generally compensable when 1) they occur on the business premises and are a regular incident of the job, or 2) participation was compulsory, or 3) there was a substantial direct benefit to the employer. If any one of these criteria is met, the claim is compensable, including travel to and from an off-premises Christmas party and taking the baby sitter home. Oklahoma Natural Gas Co. v. Williams, 1981 OK 147, 639 P.2d 1222.


The language of the new exclusion was interpreted by the Court of Civil Appeals in the case of Orcutt v. Lloyd Richards Personnel Service, 2010 OK CIV APP 77, __ P.3d __.


During his lunch break Andrew Orcutt injured his knee playing basketball in the company warehouse on a floor that had a goal and painted boundaries. The employer knew about, encouraged, and acquiesced in the games. Under the pre-2005 rules the claim would be clearly compensable. However, the trial court denied the claim based on the plain meaning of the new exclusionary terms. The COCA affirmed the trial court decision.


In an interesting sidelight (called dictum in the legal world), the COCA commented on the constitutionality of the provision. Although the issue was not properly framed for their consideration, the judges found that the legislative changes did not deprive a recreationally-injured worker of any constitutional rights. The legislature has the power to exclude classes of injuries that were compensable prior to the enactment.


The larger, unanswered question is whether employers no longer have tort immunity for injuries sustained at recreational and social functions such as Christmas parties, company sponsored sports leagues, the Orcutt basketball pick-up game, attendance at charitable events to name a few.

Six-Month Statute of Limitation Is Unconstitutional

Oklahoma's 2005 amendments to the Workers' Compensation Act included a shortened period of time for terminated workers to file claims. Normally an injured employee must file a claim within two years of the date of injury or the date of last payment of compensation or medical benefits. Otherwise, the claim is barred; and benefits will be denied when the "statute of limitations" defense is asserted. 


The 2005 legislative change added a special provision that stated "[p]ost-termination injury claims shall be filed within six (6) months of termination of employment." Although many court-watchers had believed that the new law was unconstitutional, it was not effectively challenged until the case of Ponca Iron & Metal v. Wilkinson, 2010 OK 75, __ P.3d __. 


Jackie Wilkinson worked for Ponca Iron & Metal until her employment terminated on December 18, 2005. She filed her claim for compensation (Form 3) more than six months later. Employer argued that the six-month limitation barred her claim, but her attorney argued that the provision was unconstitutional. The trial court denied the limitations defense, awarded benefits and held that this section "unreasonably singles out employees who have been terminated and have sustained cumulative trauma injuries. The law is in direct conflict with the general two year statute of limitations for cumulative trauma injuries and arbitrarily puts an unfair burden on these claimants."


The Court of Appeals affirmed the decision without addressing the constitutional issue, and the Supreme Court granted review to address a question of first impression. 


In a 7-2 opinion the Supreme Court held the six-month limitation violated the prohibition against special laws found in Art. 5 §46 of the Oklahoma Constitution. "[S]pecial laws are all those that rest on a false or deficient classification [and] create preference and establish inequality." Barrett v. Board of County Comm'rs of Tulsa County, 1939 OK 68, ¶0 (syllabus 3) and ¶7, 90 P.2d 442, 443 and 446.


Accordingly, the Court held "The classification of injured employees on the basis of continued versus terminated employment is a false and deficient classification of the larger class of injured employees because it creates preference for members in the continued employment group and results in unequal treatment for certain members of the terminated group that bear no reasonable relationship to curtailing retaliatory claims or preventing stale claims. Hence, we find the action of the Legislature to be unreasonable in their creation of this particular statutory classification. We hold the 2005 amendment to §43(A) adding the six-month statutory limitations period is unconstitutional."

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. . . .

Major Cause --- Boy Was I Wrong!

Major cause is the most puzzling of the new terms in the 2005 legislative reforms. "Major cause means the predominate [sic] cause," and the employment must be the major cause of the injury. Predominate [sic] is a synonym for major, and we have a term defined in terms of itself. What I call a circular definition which is no definition at all. That's the problem, and we traditionally look to the appellate courts for clarity.

The COCA tried to make sense of the term and establish guidelines for its application in the case of American Airlines v. Crabb. The Supreme Court then agreed to review the opinion. Originally I posted the unpublished COCA case, and then made a stab at predicting the ultimate outcome. I was one of those who unfortunately concluded that the Supreme Court would clarify the nebulous verbiage. Boy was I wrong!

The Supreme Court avoided the issue. Released yesterday, the opinion holds that the claimant's date of injury preceded the 2005 amendments; thus making it unnecessary to address the major cause dilemma. Crabb alleged a cumulative trauma injury with date of awareness in 2004. The Court held that the date of awareness is the date of injury, and therefore 2004 substantive law applies. Since the major cause requirement adds a new element of proof which must be viewed as substantive, it cannot be applied because it was enacted after the injury date.

Judge Buettner, author of the COCA opinion, held that the date of injury was the date of last exposure based on 85 O.S. §11(B)(5) and CNA Insurance v. Ellis. I agreed. How did we get it wrong? Ellis was an apportionment case and Crabb was not. Is that the distinction? Or not? More on this in a later post.

In the meantime what do we do now? For now I (meaning one of ten judges at the WCC) will follow the reasoning of my previous posting on this question. Would the claimant's current injury-producing need for medical treatment have occurred but for the workplace trauma? And so it goes.

Permanent Anatomical Abnormality - What Is It?

Since the major reforms of 2005, workers' compensation practitioners have struggled with the meaning of the Act's new terms. Failure of the legislature to define "permanent anatomical abnormality" may undo the soft tissue limitations on temporary and permanent compensation, the centerpiece of the amendments.

No published cases from the Oklahoma Supreme Court or the Court of Civil Appeals have dealt with the meaning of the term. However, two unpublished opinions have addressed the issue. In the latest case, a well written opinion by Judge Jane P. Wiseman discusses the evidentiary requirements for deciding when permanent disability may be awarded for a nonsurgical soft tissue injury.

In Dept. of Human Services v. Jackson claimant sustained a soft tissue injury to her neck and back in a motor vehicle accident. Five months later she was released by her treating physician after conservative treatment. Claimant's medical report found 18% permanent partial disability to the neck and 17% to the lumbar back. Employer's report found no impairment to either, and the treating physician concluded that "one would not anticipate there to be any permanent impairment." The trial judge awarded 7% to the neck and 9% to the lumbar back.

After conducting a very precise review of the medical evidence, the COCA affirmed the trial court order and ruled that the finding in claimant's hired-medical report of loss of range of motion supported the report's conclusion that claimant sustained a permanent anatomical abnormality.

The employer has time (20 days) to request review by the Supreme Court. If review is granted, a Supreme Court opinion would hopefully settle the issue and answer the question of what is a permanent anatomical abnormality in cases involving nonsurgical soft tissue injuries. A prior unpublished case is reviewed in the Oklahoma Workers' Compensation website; however, certiorari (a request for review) was denied.

Here's the problem! While the reasoning of the Jackson case is impeccable and leads to a logical legal conclusion, it results in a neutering of the core provision of the 2005 amendments that attempted to create TTD and PPD limitations on soft tissue injuries. We all know that every claimant's rating report finds loss of range of motion to injured extremities, spines, hips and shoulders. Consequently, we are back to a pre-2005-reform determination of disability because a trial judge, when provided with a report containing such a finding, can avoid the limitations.

This includes circumventing the 8-week limitation on TTD. Think about it. Claimant receives eight weeks of TTD. Later he returns to work after his medical release at maximum medical improvement. Armed with the Jackson decision he asks for additional TTD because he alleges he has a permanent anatomical abnormality. Remember the language of the statutory exception to the limitation. It 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, unless there is objective medical evidence of a permanent anatomical abnormality." Therefore, if claimant asserts a permanent anatomical abnormality, he could request and received compensation for his lost time in excess of eight weeks by arguing the limitation on TTD does not apply.

What's the answer? 1) Wait for the Supreme Court to review the Jackson decision; or 2) wait for the legislature to clarify the term by amending the soft tissue provisions of the Act. Either way is a long wait. In the meantime the Jackson ruling will justify overriding the soft tissue limitations.

CAVEAT: this is an unpublished opinion of the Court of Civil Appeals, and it is therefore not to be treated as authority or precedent for the proposition. However, it may be an indication of the reasoning that might be followed if the question is addressed by the Oklahoma Supreme Court. 

Tolling Events Don't Apply to Reopening Claims

In Oklahoma a claimant must diligently pursue a claim for compensation or face the risk of losing his benefits. Statutory time bars for filing, prosecuting and reopening a claim are set out in 85 O.S. §43. The only means to stop a ticking statute-of-limitations clock is by triggering a "tolling" event that restarts it.

The most common tolling event is the payment or authorization of medical treatment. Such an occurrence tolls the statute of limitation for timely filing and for timely prosecution. 85 O.S. §43(A), (B).

In the case of Lang v. Erlanger Tubular Corp., 2009 OK 17, __ P.3d __, the Oklahoma Supreme Court held "the medical treatment rule applies only to the filing of a workers' compensation claim."

Claimant received an award for permanent partial disability and vocational rehabilitation. The last order was entered July 8, 2003 and started the statute of limitations (parties agreed that it was for three years). His condition worsened leading to surgery in October, 2006, which was paid for by the insurance carrier. Later he filed to reopen his claim. Denied by the trial judge, approved by the Court of Appeals, and again denied by the Supreme Court.

This scenario (paid surgery after running of statute) would have been enough to revive the claim if it were a case of failure to file a claim under §43A. That section of the Act has a medical treatment rule imbedded into its language. So does the failure to prosecute section of §43B.

Note: my apologies to my readers who subscribe by email or feed reader; you received a prior draft with an unintelligible title. When I was writing at 5:47am today, I hit the wrong key and sent the post into the blogosphere.

Major Cause Revisited ---- Again

No opinion yet from the Supreme Court on the American Airlines v. Crabb case dealing with "major cause," but a review of Dempsey v. Ballard Nursing Center may help us predict its ultimate outcome. Written by Judge (now Justice) John F. Reif, it predates the 2005 changes, but offers insight into the core question of how to determine the causal connection between workplace trauma and injury. Perhaps the approach to answering the new "major cause" issue is the same as the approach to the old "causation" issues addressed by Justice Reif.

Ladonna Dempsey's pre-existing spondylolisthesis became symptomatic after lifting patients at a nursing home. Employer's medical expert said that she was "in need of surgery to her back, but it is due to spondylolisthesis which is a pre-existing condition and not as a result of the injury she sustained on July 12, 2002, while working for [nursing home]." If these facts had arisen after July 1, 2005, employer would have used then to prove a "major cause defense."

Justice Reif held: "The problem with this opinion [of the medical expert] is that it essentially says claimant needs surgery for the effects of the spondylolisthesis, and the injury of July 12, 2002, did not cause the spondylolisthesis. The question which the doctor did not address is whether the injury of July 12, 2002, aggravated the spondylolisthesis so that it requires surgery now, as opposed to surgery being the general medical treatment that would have eventually been needed to correct this condition." Dempsey v. Ballard Nursing Center, id at ¶10.

Paraphrasing Justice Reif could we be on the verge of this standard: the test of major cause is whether work-related trauma aggravated a preexisting condition so that it requires treatment now, as opposed to treatment that would have eventually been needed to correct the condition.

If so, the test would not be unlike the former test for plain, old "causation." Both are intended to insure that there is a work connection between the trauma and the resulting injury or condition.

Post-Termination Injury Claims, Round 2

As discussed in a previous posting, the 2005 legislature added a provision for limiting "post-termination injury claim[s]" to a six-month statute of limitation instead of the two years applied to all other injuries. 85 O.S. §43(A) states: "Post-termination injury claims shall be filed within six (6) months of termination of employment,. . ."

Jackie Wilkinson worked as a computer keyboardist and alleged she sustained cumulative trauma injuries through the date of her last employment on December 18, 2005. She filed her Form 3 claim eight months later on August 18, 2006. Employer asserted that she had failed to file her claim within the six-month period, and it was therefore barred.

Claimant argued that the language applied to persons who were injured after termination, e.g. cleaning out her desk or returning to collect a final paycheck. Under Oklahoma law both types of claims, if proven, would be compensable. Despite the employer's argument that the language of the statute is clear, unambiguous and applicable to all workers whether injured before or after termination of employment, the COCA found the phrase "post-termination injury claim" to be ambiguous and reconciled the ambiguity by adopting claimant's analysis. It concluded that the legislature intended the language to curtail retaliatory discharge claims and therefore limited claims arising after the employee has been fired. Ponca Iron & Metal v. Wilkinson, __ OK CIV APP __, __ P.3d __.

Since the issue of the case was decided by rules of statutory construction, the COCA found that it was unnecessary to address the constitutionality of the provision. This issue will be tested under this rationale only when an after-termination-injured worker (e.g., while cleaning out her desk) appeals the denial of her claim due to expiration of the six-month statute of limitations. More on this question is discussed on my website.

Failure to Make Timely Payment of Medical Charges

If the employer or its insurance carrier fails to pay a medical bill according to the Medical and Hospital Fee Schedule within 60 days of receipt of the bills, the court may rule that the Fee Schedule is waived and order payment up to the full amount of the billing.

Rule 50(C) requires payment of the submitted charges in 30 days, but the full-payment penalty arises after 60 days of non-payment.

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."

Attorney Fees Awarded to Medical Provider

In a case of first impression the Court of Civil Appeals addressed the right of a medical provider to attorney fees for prevailing in a Form 19 contest. In Pinnacle Rehabilitation Hospital v. Rivera-Villareal claimant was hospitalized for a lengthy time after collapsing at work from heat exhaustion. Pinnacle was paid according to the Medical Fee Schedule after prevailing on its Form 19. The last sentence of 85 O.S. §14F(5) states: "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."

What does "prevails in full" mean? Pinnacle argued that the phrase cannot require that a medical provider receive the entire amount billed in order to prevail "in full," because that would mean attorney fees could never be awarded since all provider requests are automatically reduced under the Fee Schedule.

COCA, Division IV, agreed. The trial judge is prohibited from exceeding the Fee Schedule, and therefore 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."

Pinnacle also addresses awarding attorney fees and costs under 85 O.S. §30 due to the unreasonable denial of payment of the claims of Pinnacle and claimant's physician, Dr. Washburn.

This case and others are cited at my website under the title, Penalty, Interest, Attorney Fees, Contempt.

Supreme Court To Consider Arguments on Major Cause Issue

In May, 2008, the COCA addressed the issue of major cause in the case of American Airlines v. Crabb, _ OK CIV APP _, _ P.3d _. The trial court ruling for the claimant was reversed, and the Supreme Court has accepted a request to review the COCA decision.

When the legislature adopted the 2005 major reforms, it inserted the term "major cause" into the Act. The provision states "[m]ajor cause means the predominate [sic] cause of the resulting injury or illness." An injury is compensable if it causes harm to the body and if the employment is the major cause of the specific injury or illness. 85 O.S. §3(13)a.

"Major cause" is a seemingly simple yet inscrutable term that defies definition using traditional analysis. Major cause is predominate cause; and predominant is a synonym for major. Thus use of a dictionary or thesaurus is futile and leads to circular reasoning.

I will not describe the details of the COCA case or its conclusions. If the Supreme Court issues an opinion, it will supercede the COCA opinion and become the controlling law on major cause. But if you are really interested, I have posted the COCA opinion on Scribd, the online document repository.

Stay tuned for breaking news. In the meantime we can wrestle with the questions: what does it mean? what did the legislature intend? will our decision-making be altered? I will post an update as soon as the Supreme Court opinion is posted.

Personal Comfort Mission: Nature Calls

K-Mart Corporation v. Herring, 2008 OK 75, __ P.3d __, presents the two-pronged question of compensability: can the injured worker show that his injuries occurred "in the course of" and "arose out of" the employment.

On May 12, 2006, K-Mart had an outdoor sale, and Mark Herring volunteered to watch the merchandise overnight while the store was closed. He arrived at 10:45pm, and the night manager instructed him to go to the nearest convenience store if he "had any issues with anything, or needed anything." When he took his station, the store closed and he became the lone employee.

About 3:15 a.m., Herring felt the call of nature. The nearest convenience store was closed, so he drove on to a nearby McDonald's to get a burger and use the restroom. While stopped in the drive-thru a carjacker shot him in the face.

The trial court denied the claim. The three-judge panel reversed with instructions to find claimant was involved in a special task and on a personal comfort mission. The trial court's new finding of compensability was appealed to the COCA which reinstated the denial order. The Supreme Court reversed the COCA and found the claim compensabe.

First issue: in the course of employment. "An employee is in the course of employment if carrying out the employer's purposes or advancing, either directly or indirectly, the employer's interest. An employee's ministration to personal comfort and needs is an incident to the employment because it provides an indirect benefit to the employer. This rationale is the basis of the personal comfort mission rule, which allows recovery for injuries incurred while an employee is ministering to his personal needs during the hours of employment." K-Mart Corporation v. Herring, ¶14, __ P.3d __ (citing Richey v. Commander Mills, Inc., 1974 OK 47, 521 P.2d 805 and City Bus Co. v. Lockhart, 1951 OK 86, 229 P.2d 586}.

In its fact-finding the Supreme Court held at ¶20: "K-Mart created the necessity of Herring having to leave the premises to use the restroom. It knew he would have to leave to attend his personal needs and instructed him to go the nearest convenience store if he had any issues. Since the nearest convenience store was closed, it is not unreasonable that Herring went to another location to take care of his personal comfort needs. Under the unique conditions of his employment, there is evidence in the record that Herring was in the time and space limitations of his employment and was in the course of an activity incident to his employment"

Second issue: arising out of employment. "An injury arises out of the employment when there is a causal connection between the condition under which the work is to be performed and the resulting injury." Id. at ¶21. Being shot by an unknown assailant is a neutral risk (not a purely employment risk and not a purely personal risk). To assess whether a neutral risk arises out of employment, Oklahoma uses the increased-risk test. Did the employment expose the claimant to a risk greater than that to which the general public was exposed?

In this case the Court held that Herring was subjected to a heightened risk of injury. "There is evidence in the record that the employment conditions exposed Herring to more risks of injury from an act of violence than that of the general public because of the time of the employment, the type of employment, and the necessity of going to either a convenience store, fast food establishment, or a similar business to attend his personal needs." Id. at ¶25.

This is a highly readable opinion by Justice Steven W. Taylor that clearly illustrates the primal issue of workers' compensation, whether the injury is work-connected. Other cases involving personal comfort missions can be found on my website.

Termination of TTD: Light Housework

If a claimant's earning power is not wholly destroyed and he retains the capacity to perform remunerative work during the healing period, he is disqualified from receiving temporary total disability (TTD). A worker who performs substantial gainful employment during the healing period does not qualify for temporary total disability compensation although he may qualify for temporary partial disability. American Airlines v. Hervey, 2001 OK 74, 33 P.3d 47. If the worker is in the healing period, temporary total disability is not automatically terminated merely because the injured worker performs some occasional or sporadic work for a small amount of pay. Gray v. Natkin Contracting, 2001 OK 73, 44 P.3d 547.

These legal principles were used by Justice John F. Reif to craft the Oklahoma Supreme Court decision in AmeriResource Group v. Gibson, 2008 OK 33, __ P.3d __.

In March, 2005 Christopher Gibson claimed injury to his neck and left shoulder resulting from heavy lifting while installing audio-visual equipment for his employer. In April he sought medical treatment due to persistent pain and was terminated by his employer. At trial he testified that he was unable to perform his former work due to pain and muscle spasms in his neck and shoulder. After trying unsuccessfully to get another job, he filled his time helping his wife in her home-based child day care business, including doing light housework. The court appointed IME, Dr. Michael Wright, recommended neck surgery after an MRI showed a significant C5-6 disc herniation. Employer denied that Gibson was TTD alleging he retained the capacity to work. Trial court awarded TTD, COCA reversed, and Supreme Court reinstated the trial court decision.

Among other things, the Supreme Court in an 8-1 opinion held the following:
1. The ability to perform light housework must be sufficient in quality, quantity, or dependability to be marketable and this in turn, must be shown by competent evidence;
2. The daycare work was akin to light housework;
3. In this case, there is no evidence that wife paid claimant for his help or that claimant was generally employable as a daycare worker, nanny or housekeeper;
4. There is no evidence that his wife would or could have hired someone to help her if she had not had claimant's help;
5. Without such evidence, it is simply speculation that claimant's help "inured to his benefit because it enabled his wife to avoid paying someone else to perform the functions [claimant performed]" (employer's argument);
6. This case presents a question of disputed fact and the order is supported by competent evidence which will not be disturbed on appeal;
7. In deciding whether or not claimant has the ability to follow continuously some substantially gainful/remunerative occupation, "the court could properly consider whether claimant was capable on a regular and continual basis of even light work in the real labor market without experiencing serious pain and discomfort on a daily basis."

The key question is whether or not the work performed (volunteered services) represents the ability to follow continuously some substantially gainful employment. Gibson's "help in his wife's home-based day care business does not conclusively show such ability. . .[T]his issue was a question of fact and the resolution of that question of fact in favor of the claimant does not offend any policy of the Workers' Compensation Act."

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; and
4. 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.

Principal Employer May Be Liable for Injuries to Employees of Subcontractor

A general contractor is secondarily liable for injuries occurring to the employees of its subcontractor if the subcontractor has failed to provide coverage and the general contractor has failed to exercise good faith to determine the existence of coverage under a valid insurance policy. 85 O.S. §11(B)(2).

Normally a policy's term of coverage is for one year. The "good faith" requirements of 85 O.S. §11(B)(2) are met when the principal employer receives a certicate of coverage that includes the period of the subcontactor's work. However, the good faith responsibility includes the continuing obligation to obtain proof of coverage on the expiration date of the policy. "Good faith is not demonstrated when a principal employer accepts proof of his subcontractor's workers' compensation coverage but remains indifferent to the stated expiration date of that coverage." Smalygo v. Green, 2008 OK 34, __ P.3d __.

David Green (Claimant) suffered a work-related injury on October 10, 2002, while working as a construction laborer for Mark Murphy d/b/a Mark Murphy Construction, an independent contractor and subcontractor of the principal employer Millard Smalygo d/b/a Smalygo Homes. When Smalygo hired Murphy, he received a certificate of coverage for a workers' compensation policy covering Murphy's employees, including Green. The policy would have expired as late as August 13, 2002, but Murphy allowed it to lapse on April 1, 2002, without informing Smalygo. When Green learned that his immediate employer had no workers' compensation coverage, he amended his claim to add Smalygo as principal employer.

If Smalygo had inquired about coverage on the anniversary date of the policy, he would have learned on August 13, 2002, nearly two months before Claimant's injury, that Murphy was uninsured. The Supreme Court found that there was competent evidence to uphold the panel's decision finding Smalygo's failure to inquire made him secondarily liable for Green's injuries (overturning the trial court order to the contrary).

It is interesting to note that Oklahoma is one of the forty-three states that allow an injured employee of an uninsured independent contractor to pursue a workers' compensation claim against the general contractor. Of those states Oklahoma is the only one to allow a general or intermediate contractor to escape liability by a good faith reliance on proof of coverage.

Special Tasks and Personal Comfort

This week the Court of Civil Appeals, Division I, issued an unpublished opinion in the case of K-Mart Corporation v. Herring, Case No. 105,120.

CAUTION: Unpublished cases do not establish precedent and by rules of the Oklahoma Supreme Court cannot even be cited as legal authority in appellate briefs. The specific holdings of unpublished cases are not the law in Oklahoma; however they often provide insight into the reasoning of the appellate panel. This particular case contains an excellent discussion of the general rules for the special task exception to the "arising out of" requirement for compensabilty of an alleged work-injury and for the personal comfort exception to the "in the course of" requirement.

Mark Herring was assigned to job duties in the K-Mart parking lot. He left the lot to get something to eat and to use the restroom. Herring was shot during a hijack attempt while in the drive through of a fast-food restaurant. Trial judge denied the claim stating that claimant "clearly deviated from any employment related purpose when he went to the McDonald's restaurant for a meal." Panel vacated and remanded for a finding of "a special task and a personal comfort mission thus a compensable injury . . ." The COCA reinstated the trial court's denial of compensability.

Again, the specific ruling is not as important as the clear, cogent review by Judge Glen Adams of the special task and personal comfort rules.

High Court Clarifies Statute of Limitations in Multiple Injury Claims

Section 43(B) of the Workers' Compensation Act places a 3-year limitation on awarding benefits "from the date of filing" a claim or "from the date of last payment of compensation or wages in lieu thereof." The limitation period was shortened from 5 years to 3 years in 1997.
Claimant in the case of Multiple Injury Trust Fund v. Wade, 2008 OK 15, __ P.3d __, received an order for 170 weeks of permanent partial disability on July 29, 1992. There was no further activity in the case until April 29, 2005, when the claimant filed a request for hearing on liability of the Fund.

The parties agreed that the 5 year limitation period applied. The Fund urged that claimant had five years from the July 29, 1992 order to request a hearing on his claim against the Fund under § 43(B) of the workers' compensation statutes. Claimant argued that he had no time restrictions on filing a Form 3-f to commence a claim against the Fund. Trial judge (Leonard) dismissed the claim as out of time; court en banc reversed; COCA affirmed the en banc panel; and the Supreme Court in effect reinstated the trial court order of dismissal.

Interestingly, both parties took positions that were rejected by the Supreme Court. Holding that § 43(B) applied, the Court held "[t]he events that mark the beginning of § 43(B)'s time period are the filing of the primary claim against the employer or the employer's last payment in the primary claim, whichever is later." [Emphasis added.] In this case the last payment was for PPD, but it is conceivable that a late medical payment might be the trigger.

Epidural Steroid Injection Is "Surgical"

Claimant alleged an epidural steroid injection (ESI) was a surgical procedure in the case of Boyce Manor Nursing Home v. Kaylor, COCA, Div IV, Case No. 104,035 (unpublished). The COCA cited with approval, Hartford Accident & Indemnity Co. v. Barfield, 80 S.E.2d 84 (Ga. Ct. App. 1954), in which the Georgia Court of Appeals concluded a myelogram constituted "surgery" in the context of Georgia workers' compensation law.

In Boyce Manor, the Court stated, "An epidural steroid injection is clearly a manual and instrumental operation for relief of suffering. It involves the same type of invasive 'penetration of living tissue,' as the myelogram in the Hartford Accident & Indemnity case. Accordingly, we believe an ordinary person would understand that this invasive procedure is 'surgery' because it is 'performed manually by a surgeon . . . in a sterile aseptic surgical room.' We also believe that an ordinary person would understand that this procedure is 'corrective' because it provides relief from pain, albeit temporarily."

If the reasoning of this case is followed, then it appears that procedures such as ESIs, myelograms, and discograms will be considered "surgical," thus removing the statutory soft tissue limitation on temporary total and permanent partial disability benefits.

Caveat: this is an unpublished opinion of the Court of Civil Appeals, and it is therefore not to be treated as authority or precedent for the proposition. However, it may be an indication of the thinking that might be followed if the question is addressed by the Oklahoma Supreme Court.