How many weeks of PPD benefits can a claimant receive under the AWCA when they have prior adjudications before its enactment on February 1, 2014? A recent decision by the Oklahoma Supreme Court (Court) in Cantwell v. Flex-N-Gate gives us an answer.

The AWCA intentionally limited the maximum number of weeks for all PPD awards from the previous five hundred twenty (520) to three hundred fifty (350). “The sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund, shall not exceed three hundred fifty (350) weeks.” Title 85A, Section 46(H). However, the AWCA retained language from the previous version of the Workers’ Compensation Act stating - “A permanent partial disability award or combination of awards granted an injured worker may not exceed a permanent partial disability rating of one hundred percent (100%) to any body part or to the body as a whole.” 85A, Section 45(C )(1). So what happens if a claimant had several injuries adjudicated in the Court of Existing Claims prior to the prior AWCA which, when totaled, resulted in 360 weeks of PPD awards, but only adds up to 71.3% PPD to the body as a whole?

In the Cantwell decision the Court held that it is the percentage of disability that controls in this situation, rather than the number of weeks of PPD awarded. In a 5-4 ruling, the majority held that the “application of 46(H), without consideration of Section 45(C ) (1), capped Cantwell’s benefits at the amount he had previously received, 71.3%. The Commission’s retroactive application of 46(H) affects Cantwell’s substantive right to 100% impairment under both Title 85 and the AWCA…and that the 100% limitation on PPD benefits controls over the number of weeks when awarding compensation for PPD where a claimant has both compensable awards for job related injuries that occurred prior to February 1, 2014.” In other words, the Court found there was a statutory conflict in the interplay between Sections 45 and 46, which could only be resolved in construing the “two statues together in order to avoid constitutional infirmity.”

The dissent wrote that “[t]here is no support in statute or case law to require a claimant to reach 100% PPD before benefits may be limited by week paid. There is no need to reconcile the provisions of Sections 45(C) and 46(H), which complement each other.” And while recognizing that Cantwell would not have received any PPD award under the AWCA which may “result in harsh consequences in individual cases. But where the legislative language is clear - as it is here - it is not this Court’s job to parse the statutes to escape those consequences.”

So under the analysis set out by the majority, Cantwell can now potentially receive an additional 28.7% PPD to the body as a whole as a result of his new claim filed in the WC Commission - the very result which the AWCA had sought to prevent with its enactment.

While this case is interesting in its examination of statutory interpretation, the practical effect should be somewhat limited in scope. We recommend a thorough vetting of prior adjudications in order to determine what limitations on PPD may come into play with any injury claims after February 1, 2014.

In Oklahoma, a worker’s rights to a remedy for on-the-job injuries are governed by the Administrative Workers’ Compensation Act (AWCA). Generally know as the “exclusive remedy”, the AWCA provides the sole legal remedy when injuries are caused by mere negligence, regardless of who is at fault. But if a worker is injured due to a willful, deliberate act, or with specific intent by the employer to cause the injury the employee has an election based on an intentional tort theory of recovery. In such cases the injured worker has the option of seeking damages in the district court, thus forgoing the exclusive remedy provided by the AWCA. When an injured worker chooses to file a lawsuit in a district court, can they maintain a claim in the Workers’ Compensation Court at the same time? Per the recent decision in KPiele-Poda v. Petterson-Uti Energy, etal., the answer is “no.”

In Petterson, etal., the claimant sustained a crush injury to both legs while repairing a conveyor at a well-site, an injury which he asserts was substantially certain to occur as the conveyor continued to operate while he was repairing it. Claimant initially filed a CC-Form-3 in the Workers’ Compensation Commission (Commission), receiving both medical treatment and temporary total disability (TTD) benefits from the employer/respondent, and just two days prior to the expiration of the Statute of Limitations, he also filed a lawsuit in the Oklahoma County District Court seeking damages for his injuries. The lawsuit alleged that the at fault party, “ordered, encouraged, allowed, or otherwise caused” Plaintiff to repair the conveyor with the “knowledge that injury and/or death was substantially certain to occur, not merely foreseeable or substantially likely. The employer moved to dismiss the lawsuit arguing that the plain language of the AWCA precludes an employee from maintaining an action in the both Commission and the district court simultaneously. The Oklahoma County District Court agreed, and dismissed the intentional tort action. The claimant/plaintiff then appealed to the Oklahoma Supreme Court (Supreme Court), which addressed the question of whether both actions can be pursued at once.

In the resulting opinion, the Supreme Court cited 85A Section 5(I), which provides: “If the employer has failed to secure the payment of compensation as provided in this act or in the case of an intentional tort, the injured employee or his legal representative may maintain an action either before the commission or in the district court, but not both.” Reviewing this statutory section, the Supreme Court looked for the plain meaning of the statute, as it is “presumed that the Legislature has expressed its intent in a statute’s language and that it intended what it so expressed…[and] only where legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity, are rules of statutory interpretation employed.” Odom v. Penske Truck Leasing Co., 415 P.3d 521. Finding no ambiguity in the statutory language, the Court held that when the injured employee filed his CC-Form-3 in the Commission, he had invoked its jurisdiction and thus elected his remedy. Filing the separate action in the district court was, per the Supreme Court, violative of the plain text of Section 5(I), and he “is not entitled to maintain an action simultaneously before the Commission and in the district court.” Accordingly, the district court’s dismissal of the “substantial certainty" lawsuit was affirmed.

Justice Noma Gurich wrote a dissenting opinion which considered the majority opinion to be “too restrictive.” Noting that the intent of 85A Section 5(I) was to prevent a claimant from receiving a double recovery from the same accident, she pointed out that “[u]ntil there is a finalized recovery, however, there can be no double dipping. This is because a claimant has not received a remedy until a final order is entered. Therefore, she believes that Section 5(I) should “allow the injured employee to preserve inconsistent remedies, but not allow recovery from both.”

As a post-script, a lawsuit against the manufacturer of the conveyor device under the theory of product liability is still ongoing at this time.

What benefits are included in an order authorizing Continuing Medical Maintenance (CMM)? The term CMM was not formally recognized until 2011, when it was enacted under the then-Workers’ Compensation Code (Code). In the Code, CMM was defined as “medical treatment that is reasonable and necessary to maintain the claimant’s condition resulting from the compensable injury or illness after reaching maximum medical improvement. Continuing medical maintenance shall not include diagnostic tests, surgery, injections, counseling, physical therapy, or pain management devices or equipment, unless specifically authorized by the Workers’ Compensation Court in advance of such treatment.” But do CMM benefits include a spinal cord stimulator, and must the claim be re-opened on a change of condition for the worse in order for the spinal cord stimulator to be approved? A recent appellate decision from Division II of the Court of Civil Appeals (COCA) gives us the answers.

In Prewitt v. Quiktrip Corporation, #120,960, the claimant appealed an order of the Workers’ Compensation Court of Existing Claims which denied his request for a spinal cord stimulator. Per the trial judge’s order, CMM is a “limited and tightly structured exception to the general rule that medical treatment ceases by operation of law when permanent disability begins…(and) only those things first authorized in the medical maintenance order may be brought to the Court’s attention in any manner other than a motion to reopen for a change of condition for the worse.” In other words, since the spinal cord stimulator was not specifically referenced in the CMM Order, the claimant would have to prove a change of condition for the worse to receive authorization for that medical device.

The COCA overturned the Court of Existing Claims order, ruling that CMM, once properly established either by recommendation of the treating physician or an independent medical examiner, “may be reviewed by the Court at any time,” and that the lower Court had “erred in holding Claimant was required to file a motion to reopen and demonstrate a change of condition for the worse.” The matter was remanded back to the trial judge to determine whether placement of the spinal cord stimulator is considered reasonable and necessary to maintain the claimant’s condition, as required in the statutory provision which established CMM.

As this appellate ruling affects mainly those claims which are still active under the Court of Existing Claims, it may have a limited impact for claims under the AWCA. Having said that, we strongly recommend that any orders for CMM under the AWCA set out with specificity what benefits are to be included therein. CMM orders should be limited to prescription medications only, and should exclude spinal cord stimulators, which historically have been considered part of active medical treatment.

Since extensive amendments to the then-Workers’ Compensation Act were enacted in 2005, the term “major cause” has been used by the Oklahoma Legislature in its definition of a compensable injury. Generally speaking, in order for an on-the-job injury to be valid, greater than 50% of the resulting injury, disease or illness must be related directly to the work-related trauma, be it by way of a single event, or through cumulative trauma. However, this term was replaced by the usage of “sole cause” with enactment of the Administrative Workers’ Compensation Act (AWCA) in 2014. Per the AWCA, a compensable injury “means damage or harm to the physical structure of the body…caused solely as the result of either an accident, cumulative trauma or occupational disease arising out of the course and scope of employment.” This “sole cause” test caused some confusion, especially in claims involving cumulative trauma, in that it appeared to increase the burden of proof for a claimant who may have had some pre-existing arthritis or other non-job related pathology which made it more difficult to prove a compensable injury. The usage of sole cause was ultimately appealed, with the OK Court of Civil Appeals determining that literal application of the term sole cause would result in an “arbitrary and unreasonable denial of a remedy to a large class of injuries.” Sequel Youth & Family Services LLC v. Ayisi, 2018 OK CIV APP 7. Following the Ayisi decision, the AWCA was amended to resume the use of major cause in its definition of compensable injury. The sole cause language was deleted in place of the older major cause standard. So how does major cause apply from a practical standpoint - specifically, does major cause refer only to the need for medical treatment once a claim has been found compensable, or does it refer to the degree of evidence needed to prove a compensable claim to begin with?

The OK Court of Civil Appeals recently addressed this question in its opinion in Bryan Linn Farms v. Arthur Monsebais, Jr. In Monsebais, the claimant admittedly suffered from pre-existing, though non-symptomatic, arthritis in his injured knee. Both the treating doctor and Independent Medical Examiner (IME) determined that the claimant had aggravated his pre-existing condition at work, but also felt that the need for total knee replacement, recommended as treatment, resulted from the pre-existing arthritic condition rather than the trauma sustained on the job. In other words, the major cause of the need for knee replacement was the underlying arthritis. The claimant’s subsequent request for the total knee replacement was denied at the trial level based upon the major cause defense. This denial of treatment was subsequently overturned by the Commission En Banc.

Employer appealed to the OK Supreme Court, with the matter being assigned to Division 4 of the Court of Civil Appeals (COCA). The COCA unanimously upheld the need for a total knee replacement writing - ‘The “major cause” analysis is not involved in determining the need for or against a particular course of medical treatment for a compensable injury. Major cause is used in the analysis of determining a compensable on-the-job- injury…The employment must be the major cause of the injury, but employment does not need to be the major cause of the need for a particular course of treatment for a compensable injury. Claimant is not required to prove that the employment is the major cause of the need for a total knee replacement. The ALJ and Dr.s….erroneously imposed a burden on the claimant that is not required under the statutory scheme. An employer is required to provided medical treatment as may be reasonably necessary in connection with the compensable injury.’

So, as we analyze defenses going forward, we must be mindful that the term major cause applies to the underlying compensability of a claim, rather than reasonable and necessary medical treatment once a claim is determined to be compensable.

Please feel free contact our office should you have any questions regarding this significant appellate ruling, or with any other questions you may have.

A question which we often face following enactment of the Administrative Workers’ Compensation Act (AWCA) in February 2014, is whether a claimant with a well-documented pre-existing condition can have a new injury when that pre-existing condition is aggravated by an on the job injury? By enacting the AWCA the Oklahoma Legislature attempted to limit liability for claims wherein the claimant had a known pre-existing condition. Per 85A Section 2(9)(b)(5) a “compensable injury” does not include a
”strain, degeneration, damage or harm to, or disease or condition of, the eye or musculoskeletal structure or other body part resulting from the natural results of aging, osteoarthritis, arthritis, or degenerative process including, but not limited to, degenerative joint disease, degenerative disc disease, degenerative spondylosis/spondylolisthesis and spinal stenosis…” However, the AWCA also provides a potential exception for pre-existing conditions, if  that condition is aggravated by an “identifiable and significant” event which is clearly confirmed by the treating physician.  85A O.S. Section 2(9)(b)(6).

To date, the Oklahoma Supreme Court has yet to weigh in on the statutory interpretation of these potentially conflicting provisions, though a recent appellate decision in Fitzwilson v. AT&T, 2019 OK CIV APP 48, has suggested that a trial court may not deny a claim based upon a pre-existing condition unless they fully consider the exception as set out in Section 2(9)(b)(6). Relying on reasoning set out in the earlier Ayisi decisions, the Fitzwater court held that “[e]ven if Claimant’s work-related incident, which Employer admitted occurred, was not  ‘the sole or major cause of her resulting lumbar spine deterioration or degeneration that ultimately necessitated surgery’ and is excluded from being compensable pursuant to Sec. 2(9)(b)(6), the WCC was required to determine if her injury was compensable pursuant to Sec. 2(9)(b)(6) because Claimant’s treating physician, Dr. Hendricks, ‘found that Claimant sustained a significant and identifiable aggravation of her preexisting injury.’” The Court of Civil Appeals itself did not determine whether the claim was compensable, but remanded the matter back to the Administrative Law Judge to re-consider based upon the statutory interpretation set out in the appellate opinion.

So as we analyze defenses for cumulative trauma claims going forward, the Court of Civil Appeals makes it clear that both sections 85A 2(9)(b)(5) and 2(9)(b)(6) must be read in conjunction with one another rather than separately, at least pending a ruling on this issue from the Oklahoma Supreme Court.