Several workers’ compensation reforms proposed in a pair of Oklahoma House of Represenatives bills that died in the Senate had new life breathed into them by amendments the House attached to Senate Bill 1531.
According to the House Media Division the bill, which is sponsored by the Speaker of the House and the President Pro Tempore of the Senate, is expected to be referred to a House/Senate conference committee where a compromise will be developed.
The House amendments reflect proposals imprinted in House Bills 2396 and 2619, both of which died in the Senate Judiciary Committee.
HB 2396 was intended to erect a roadblock in the path of “ambulance chasing” attorneys.
HB 2619 contained myriad recommendations intended to eliminate fraud in workers’ compensation claims, discourage ‘dueling doctors’ and encourage disputes over worker injury claims to be resolved by negotiation rather than litigation. The principal author of HB 2619 said the legislation would trim workers’ compensation expenses in Oklahoma by a projected 7 percent to 12 percent and would save Oklahoma employers an estimated $80 million annually.
Among the proposals resuscitated by members of the House:
■ The state Workers’ Compensation Court would be directed to keep confidential its Form 2 records, also known as an “employer’s first notice of injury”, for six months after their filing. During those 180 days the reports could be made available only to the injured worker and his/her attorney, as well as “any prosecutorial authority.”
Anyone who ignored the prohibition would be fined $2,500 for an initial offense, or incarcerated up to 30 days in a county jail for a second or subsequent offense.
Also, public employees and public officials would be forbidden from allowing anyone to examine or reproduce Form 2 records if the report “is sought for the purpose of making a commercial solicitation.”
An employer is required to file a Form 2 with the Workers’ Compensation Court whenever there is a loss of time from the workplace beyond the shift, or if a worker needs medical attention away from the work site because of an on-the-job mishap.
The court received 61,452 Form 2’s last year, 67,190 in 2002, and 75,462 in 2001, records reflect.
“Right now, Form 2’s are essentially put into a box” at the Workers’ Compensation Court, a Representative who is an attorney told a House committee. A few unscrupulous lawyers are rummaging through the forms “and chasing down injured workers” in an attempt to persuade them to file lawsuits, the legislator related.
■ Mediation would be mandatory before a Form 3, which is an “Employee’s First Notice of Accidental Injury and Claim for Compensation”, could be filed with the Workers’ Compensation Court. Under existing law, mediation is voluntary, not compulsory.
The Workers’ Compensation Court received 17,390 claimant filings last year and 18,474 the year before, records reflect.
■ A worker could be required to submit to drug testing after any on-the-job injury or any mishap that damages the employer’s property. Legislation approved by the House would eliminate the requirement that before testing can be compelled, there must be reasonable suspicion or a causal link between the accident and the alleged drug/alcohol use.
■ An employer would be allowed to file a civil suit in district court against an employee suspected of having committed workers’ compensation fraud. Currently the only option is for the Attorney General to bring a criminal case against a fraudulent claimant.
■ The legislation defines “amount in dispute” for the purpose of limiting claimants’ attorney fee awards. The phrase would mean a percentage of the amount awarded to an injured employee in excess of what the employer offered prior to trial.
■ Attorney fees on awards for disability would be limited to 20 percent of the “amount in dispute.”
■ Hearings of the state’s Workers’ Compensation Court would have to be held in the county where the injury occurred, or by video conference conducted at the nearest regional technology center school. Currently those hearings are held only in Oklahoma City or Tulsa.
■ Whenever an injured worker is treated with prescription drugs, generic medications would have to be used “when available.”
■ When the Workers’ Compensation Court is assembling evidence in a case, testimony from the physician who is treating the injured worker would be given deference “for rating purposes only.” An employer who disagreed with the worker’s doctor could seek a second medical opinion. The court could then choose either opinion or “split the difference” between the two.
■ Except in cases involving corrective surgery, permanent partial disability could not be awarded unless there is “objective evidence” of an anatomical abnormality and proof that the employee’s wage-earning ability has been “adversely impaired.” The requirement for objective medical findings is directed primarily at claims seeking benefits for sprains and strains, which account for many workers’ comp cases, as well as claims alleging psychological impairment.
■ The court could order an independent medical examiner to determine whether surgery should be performed on an injured worker, if the claimant and the treating physician disagreed.
■ A settlement agreement providing for a lump-sum payment, if signed by both the employer and the injured worker, would have to be approved by the Workers’ Compensation Court so long as the terms of the agreement “conform to the Workers’ Compensation Act.”
The amended version of Senate Bill 1531 sailed through the House, 98-1, and was returned to the Senate.
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