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."

Tolling Limitation for Reopening Claims

Tolling the limitation period of 85 O.S. §43(C) by timely reopening a claim for one adjudicated body part does not toll the limitations for other adjudicated body parts. Shapiro v. City Beverage Co. LLC, 2010 OK CIV APP 88, __ P.3d __.


Mark Shapiro sustained a work-related injury to his neck and low back. At all relevant times the trial judge was Hon. Gene Prigmore.

• On April 22, 2002, Shapiro received an award of permanent partial disability to both body parts.
• On August 7, 2003,  employer was ordered to provide him with vocational rehabilitation "as outlined in Option A as identified in the report of LDH CONSULTANTS."
• On July 27, 2006, Shapiro filed a Form 9 to reopen the low back injury claim.
• On February 20, 2007, an order was entered finding change of condition for the worse to the low back, and the order was later affirmed on appeal to the court en banc.
• On May 27, 2009, Shapiro filed to reopen his neck injury. 
• On August 25, 2009, the trial judge denied Shapiro's motion to reopen his neck injury claim.

The applicable limitation period under §43(C) was "three (3) years from the date of the last order."

Judge Prigmore's order reopening on the neck was proper because the reopen motion filed on July 27, 2006 was filed within three years of the last order on August 7, 2003 awarding vocational rehabilitation. Arrow Tube & Gauge v. Mead holds that a last order is one that "substantially affects the range of . . . vocational benefits . . ."


With respect to the neck injury, Shapiro contended that the February 20, 2007 order reopening the low back injury was the last order. The Court of Civil Appeals agreed with Judge Prigmore and affirmed his denial of the motion to reopen for treatment of his low back. The vocational order on August 7, 2003 was the last order because it was the last one to deal with Shapiro's neck injury. The order on February 20, 2007 only dealt with his low back. According to the COCA, to hold otherwise would allow a claimant with multiple adjudicated body parts to keep his benefits open indefinitely by serially reopening his claim every three years, one body part at a time. It found that this was not the intent of the legislature.


For a more extensive discussion on the §43(C) limitation, visit my website.


Commentary: When I was on the bench, I was somewhat amazed that insurance carriers often take hard stands on vocational rehabilitation benefits. This case offers a teaching moment. LDH Consultants wrote a report recommending a program for rehabilitating Shapiro. Although we don't know all of the circumstances, my experience says that orders approving a vocational rehabilitation option like the one filed August 7, 2003, are entered because the insurance carrier has forced the claimant's hand by delaying or obstructing the inevitable approval of rehab that meets the statutory restrictions.


The folly of this approach is evident from this case. If the carrier had approved "Option A," no order would have been entered by Judge Prigmore on August 27, 2003; and the last order would have been the one entered on April 22, 2002. The limitations period would have expired on the low back, not just on the neck. As grandma Lois used to say, "penny wise and pound foolish."

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.

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.

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.

Post-termination Injury Claim --- What Does It Mean?

The July 1, 2005, amendments to the Workers' Compensation Act included a provision for limiting "post-termination injury claim[s]" to a six month statute of limitation instead of the usual two years. Is the new law valid and enforceable? There is a split of opinion among the judges.
Unlike some of the other amendments, the facts necessary to raise this issue are rarely present in a claim. I have only had it raised in one case, and it was an appellate issue twice on en banc panels.
Hopefully a case is making its way to the Supreme Court as this item is posted. In the meantime, I have posted some observations on my website. I hope this helps your thinking. What are your thoughts?