Oklahoma Back, Neck, Spine & Disc Injury Settlements
Introduction to Back, Neck, Spine & Disc Injury Settlements in Oklahoma
When it comes to Oklahoma Workers’ Compensation settlements and awards, back, neck, spine and disc injuries predominate. Slips, falls, lifting injuries, falling objects and direct impact to the back and spine usually cause the damage. Whatever the condition, herniated, protruding, torn, bulging or slipped discs, compression and/or wedge fractures, these injuries most likely will lead to permanent injury and damage. Symptoms of serious spine and disc injury cases include back pain, weakness, sciatica, lumbago, radiculopathy, range of motion loss or even foot drop. Treatment for these conditions can be complicated and protracted. To make matters worse Oklahoma Workers’ Compensation Law has now enacted serious limits on how long an injured Oklahoma worker can draw weekly benefits for what the comp court defines as a “soft-Tissue” back, neck, spine and disc injury case.
As far as treatment, in most cases, an injured Oklahoma worker will simply receive a plain x-ray to diagnose the condition. However, inexpensive x-rays will merely show any serious injury or damage to the workers’ bone, or in the case of back, neck and spine cases, the condition of his or her vertebra. However, most serious worker’s compensation back and spine injuries are to the employee’s discs and/or other soft tissue structures, including ligaments, muscles and other supporting structures. In order to properly diagnose these conditions more sophisticated or invasive diagnostic studies or testing will be in order, such as an MRI, CT scan, myelogram, discogram, EMG or even Nerve Conduction Studies.
Employers and their Oklahoma workmans’ comp insurance companies will generally resist providing an injured employee with more expensive diagnostic tests, not only to avoid the obvious and direct cost of the procedure itself, but to prevent the proper and timely diagnosis of a more serious structural injury within and around the workers’ spine. This is because more serious disc injuries typically result in extended time away from work, wage loss and permanent disability. Serious disc injuries usually do not heal on their own, and usually have to be treated with narcotic pain, muscle relaxers, and/or anti-inflammatory prescription medication, physical therapy, epidural steroid injections (ESI’s) and/or nerve blocks. Many disc and spine injuries can only be repaired with surgery, including a laminectomy or discectomy procedure, and in many serious cases lumbar fusion using rods, cages or other orthopedic hardware. Serious neck injuries usually are treated with an anterior discectomy and fusion (ACDF) procedure. These surgical procedures are generally performed by either or both an orthopedic surgeon or neurosurgeon, or when an anterior lumbar approach is utilized, a general surgeon.
Even following recovery from a successful surgical procedure to his or her spine, many injured workers in Oklahoma will required protracted or even lifetime treatment from a pain management clinic or physician. In Oklahoma this post-recovery treatment, termed ‘continuing medical maintenance’, is generally disfavored and can only be secured by a a court order handed down from the Oklahoma Workers’ Compensation Commission specifically describing and setting forth the precise nature and extent of this continuing medical maintenance or treatment.
Under Oklahoma Workers’ Comp law an injured workers’ employer has the right, if not the duty, to select a doctor to treat the employees’ back, neck, spine or disc injury. However the Oklahoma Workers’ Compensation Court does allow an injured worker a one-time right to change his or her treating physician from the one designated by his or her employer’s insurance company.sss It should be noted that this change of treating physician requires a formal process and court order designating a new treating doctor for the injured worker, and should only be done with the assistance of an experienced Oklahoma Workers’ Compensation attorney, as any mistakes or delay and initiating or following these procedures could result in the injured worker choosing the wrong physician specialty or doctor or even losing his or her opportunity to select or change his or her physician at all.
As will be further discussed below, Oklahoma Workers’ Compensation law provides serious limits on a workers’ ability to receive wage loss and/or other cash benefits for what is described as a ‘soft-tissue’ injury or damage. To be clear, Oklahoma injured workers who do not receive either a spinal injection, a back surgery, or merely a recommendation of a back surgery by a neurosurgeon or orthopedic surgeon, will be limited to eight weeks of temporary total disability or wage loss benefits. Understanding this it is imperative that injured employees in Oklahoma contact a workers’ compensation attorney as soon as possible following a back, neck or disc injury to get a proper diagnosis and treatment to avoid incurring uncompensated wage loss and increased injury and spine damage caused by a delay in receiving proper treatment.
Oklahoma Workers' Compensation is the Only and Exclusive Remedy for Neck, Back, Disc & Spine Injuries Compensable Under the Act
Oklahoma Workers’ Compensation Act is the ‘exclusive remedy’ for any back, neck, spine & disc injury covered under that Act. The Oklahoma Workers’ Compensation Act specifically states that the statutory benefits available to an hurt worker covered under the Oklahoma Workers’ Compensation Law are the only rights &/or remedy available to that worker &/or his or her legal representative vis a vis that injured worker’s employer. in other words-Oklahoma employers are immune from lawsuits or other civil claims or actions for damages by employees who sustain job-related Disc, Spine, Back & Neck injuries.
Back, Neck, Spine and Disc Injury Cases Covered Under the Oklahoma Workers' Compensation Act
Injuries must arise out of and in the course & scope of worker’s employment: Back and neck injury cases that are covered or that are otherwise ‘compensable’ under the Oklahoma Workers’ Compensation Act are those that cause damage or harm to the physical structures that make up that worker’s vertebra, disc(s) or other supporting structures of the spine (including prosthetic devices, appliances or hardware previously placed in or near that worker’s spine). Such damage or defect must be caused or come about as a direct and proximate result of either an accident, cumulative trauma or occupational disease arising out of the course and scope of that employee’s employment.
The Oklahoma Workers Compensation Act describes the term “Course and Scope of a worker’s employment as:
- Any undertaking or activity of any character or kind for which the worker was hired, charged or tasked with that furthers, relates to or derives from the business, trade, or profession of an employer, and is undertaken or performed by the worker in the advancement of the business or affairs of that employer;
- The phrase includes and encompasses work or other activity carried out on the premises of an employer or at other locations prescribed or designated by the employer and necessarily includes business travel by the worker which advance or further the interests that is specifically directed by the employer.
An “accident” to be covered under the Oklahoma Workers Comp Act is defined as one having factors external to the worker that:
- was not intended, anticipated, foreseen, planned &/or expected
- happened at an identifiable place and time
- happened by chance or from unknown causes
- was wholly independent of illness, mental disease or any other cause personal to the employee
Title 85A § 9.a
Repetitive Motion, Cumulative Trauma and Overuse Back, Neck, Spine & Disc Injury in Oklahoma
The Oklahoma Workers’ Compensation Court defines a ‘cumulative trauma’ neck, back, spine and disc injury to a worker as one that is created or otherwise caused by that worker’s sustained and/or repetitive physical activity over the course or a period of time and shall have resulted directly and be independent of any other cause or factor. Title 85A § 14
CONSEQUENTIAL OR COMPENSATORY SPINE, DISC, BACK & NECK INJURY CASES ARE COMPENSABLE UNDER OKLAHOMA WORKERS' COMPENSATION LAW
A consequential or compensatory back, neck, spine or disc injury case is one that comes about and is otherwise caused by injury or medical treatment to the part of the injured worker’s body that is the subject of the worker’s original work comp claim. Under Oklahoma law the Workers’ Compensation Court cannot make a proper finding of a consequential or compensatory injury unless or until is is proven by the injured employee &/or his or her Oklahoma City or Tulsa Workers’ Compensation Attorney with objective medical evidence that medical &/or surgical treatment for that consequential injury was or is needed or required.
Consequential Psychological Overlay and Concurrent Mental Impairment Injury(ies) in Back, Neck, Spine, and Disc Injury Cases
The Oklahoma Workers’ Compensation Commission has determined that in Oklahoma a mental and/or psychological injury and/or illness (i.e. depression, anxiety, PTSD) will not be considered a valid and compensable injury unless and until precipitated by or otherwise caused by a worker’s original and underlying Neck, Back, Spine or Disc injury case–and any finding that a mental impairment injury in Oklahoma arose out of and in the course of that worker’s employment must be proven by the injured employee &/or his or her Social Security Disability Attorney by a preponderance of the evidence. 85A § 13.A.1
The Oklahoma Workers’ Compensation Law further provides that, in order to be found compensable by the Court, a mental &/or psychological impairment injury must be diagnosed by a licensed psychiatrist or psychologist and this diagnosis must meet criteria set forth by the latest version of the Diagnostic and Statistical Manual of Mental Disorders. 85A § 13A.2
Evidence and Proof Needed to Win Back, Neck, Spine & Disc Injuries before the Oklahoma Workers' Compensation Court
Evidence & proof necessary to win spine and disc injury cases in Oklahoma: Under Oklahoma law an injured worker &/or his or her Tulsa or Oklahoma City workers’ compensation attorney must prove that his or her neck, back, spine or disc injury or condition arose out said worker’s employment by a preponderance of the evidence submitted to the Oklahoma Workers’ Compensation Commission. Such proof must be by medical evidence from a physician or doctor describing objective findings of injury or disease to the injured worker’s back, neck, vertebra, disc(s) or other supporting structures of the spine. Title 85A § 2.9.c & d “Objective Findings” are those that cannot come under the voluntary control of the injured worker (i.e. an employee’s ‘subjective complaints’)
The Oklahoma Workers’ Compensation Commission has said the term “major cause” means greater than fifty percent (50%) of the resulting injury, harm, disease, illness or other medical condition.
Oklahoma Workers’ Compensation Commission rules require that any medical opinion put before the court addressing the compensability of disc, spine, back and neck injury cases must be stated within a reasonable degree of medical probability.
BACK, NECK, SPINE & DISC INJURY CASES NOT COVERED UNDER THE OKLAHOMA WORKERS' COMPENSATION LAW
Back, neck and spine surgery or treatment cases not covered under Oklahoma Law: Back, neck, spine and disc injury cases that are excluded and not covered by the Oklahoma Workers’ Compensation law can be summarized as follows:
- Degeneration & Aging: Any sprain, degeneration process (i.e. degenerative disc disease or degenerative joint disease) damage, harm or condition of the structures surrounding an injured worker’s back, neck, discs or spine resulting from the natural aging process (to include arthritis, osteoarthritis, osteoporosis, spondylosis, spondylolisthesis and/or stenosis. Title 85A § 9.b(5)
- Preexisting Injury: Any preexisting injury or condition caused to an injured employee’s back, neck, spine and/or disc(s), unless the hurt worker’s treating physician plainly confirms that his or her patient sustained an identifiable and significant aggravation of his back or neck condition caused by events or circumstances arising out of and in the course and scope of the worker’s employment. Title 85A § 9.b(6) The Oklahoma Workers’ Compensation Court has defined a “pre-existing condition” to be any injury, disease, sickness, mental condition or the like (whether work-related or not), for which an injured worker had been recommended or otherwise received medical advice, a diagnosis, or medical treatment all preceding the date of injury in the case at hand.
- Any injury to a worker’s back, neck, spine or disc which was caused to the employee at a time when employment services were not being performed or before the employee was hired or after the employment relationship terminated is not covered or compensable under the Oklahoma Workers’ Compensation Law. 85A § 2.9.B(3)
- Assault, Horseplay & Intoxication Cases: Neck, back, spine and disc injuries that occur during or as a result of: (1) assaults & horseplay 85A § 9.b(1); (2) recreational or social activities 85A § 9.b(2); and (3) intoxication 85A § 9.b(4)
- Intervening Accidents & Injury: Oklahoma work comp benefits are not payable for an injury or disease caused from an independent & intervening non-work related injury or accident which occurs following an otherwise compensable injury which creates or even prolongs recovery and/or disability from that original compensable injury or disease. Title 85A § 9.f
- Traveling to and from work: Back, neck, spine and disc injuries cases which happen during or while the worker is transporting himself or herself to the workplace or worksite are not covered under the Oklahoma Workers’ Compensation Law. This is commonly known as the “coming and going” rule. Title 85A § 13.a
- Business travel that also benefits the worker: travel by the injured worker that is in furtherance of the business or trade of his or her employer–but which also inures to his or her benefit as well, is not covered under the Oklahoma Work Comp law. This is known as the “dual purpose” doctrine.
- Parking lot accidents: accidents occurring in or on any parking lot or other type of common area next to or adjoining a workers’ place of work which accident occurs before the worker clocks in or otherwise begins his or her work duty or arrives at his or her work station (or following the working clocking out or finishing his or her assigned work duties) is not covered under Oklahoma Workmen’s Comp.
- Work Break Injury(ies): Unauthorized or off-site back, neck, spine and disc injury cases which occur during, while or as a result of a work break are not covered by Oklahoma Workers’ Compensation Commission rules.
- Intentional Injury: Where an injured worker’s back, neck, spine or disc injury was “substantially occasioned” through the willful intent of that worker to bring about or cause injury to his or her person. Title 85A § 35.A.2
TREATMENT OF NECK, BACK AND SPINE CASES UNDER AN EMPLOYER PROVIDED 'CERTIFIED WORKPLACE MEDICAL PLAN
Treatment of Back, Neck, Spine & Disc Injury cases under an Oklahoma Workers’ Compensation Certified Workplace Medical Plan: Oklahoma employers have the option of providing their injured workers medical and hospital treatment under what is called a “certified workplace medical plan”. Basically any Oklahoma employer (or its workers compensation insurance company) can contract or otherwise agree with a group of medical treatment providers to provide medical and surgical treatment to its injured workers for said employees’ neck, back, spine and disc injury case. Said treatment must of course be provided consistent with the strict requirements of the Oklahoma Workers’ Compensation Law. Title 85A § 5
Oklahoma Workers’ Compensation Attorney Practice Pointer: Most employers and their workers’ compensation insurance carriers in Oklahoma do not exercise the option to use a certified workplace medical plan as these plans can be quite difficult to administer and do not generally result in curtailing either the costs or treatment that an injured worker would otherwise receive under a more traditional workers’ compensation treatment protocol-even in complicated spine and disc surgery cases.
Use of Official Disability Guidelines (ODG) in Oklahoma Workers' Compensation Back, Neck, Spine or Disc Injury Cases
When evaluating what is appropriate treatment for job-related spine and disc injuries in Oklahoma the Workers’ Compensation Commission considers the current edition of the “Official Disability Guidelines” or ‘ODG’ published by the Work Loss Data Institute as an authoritative guide. In fact the Oklahoma Workers’ Compensation Court has stated that the Official Disability Guidelines – Treatment in Workers Compensation (ODG), published by the Work Loss Data Institute is to be recognized as the primary standard of reference, at the time of treatment, in determining the frequency and extent of treatment and services presumed to be reasonable and medically necessary and appropriate for compensable injuries in Oklahoma, or in resolving disputes resolving what treatment is reasonable and necessary in an individual case.
The Oklahoma Workers’ Compensation Court has been clear, however, that these medical treatment guidelines are not strict requirements, not mandates or practice standards, but they do provide some practical advice by recognizing the treatment and care likely to most benefit hurt employees in an individual case. This is because generally these guidelines are evidence-based, scientifically valid, outcome focused, and designed to reduce or eliminate unnecessary, inappropriate, duplicate or even protracted care and treatment while making sure injured workers do, indeed receive reasonable and timely medical care and treatment.
The Oklahoma Workers’ Compensation law does require that doctors treating injured workers prescribe for those employees necessary prescription drugs as clinically appropriate and as outlined under the Official Disability Guidelines. In fact, prescription drugs that are not preferred, exceed or are not addressed by ODG require preauthorization and that preauthorization request must include the prescribing doctor’s drug regimen plan of care and the anticipated dosage or range of dosages.
EMPLOYER TO PAY FOR PROSTHETIC DEVICES NEEDED TO RELIEVE INJURED WORKER FROM THE EFFECTS OF HIS OR HER BACK, NECK, SPINE OR DISC INJURY
The Oklahoma Workers Compensation Court describes a ‘Prosthetic Device’ as one used to repair or replace a part or joint of the body that is lost or injured in a compensable work-related accident or illness.
Continuing Medical Maintenance for Back, Neck, Spine & Disc Injuries under Oklahoma Workers' Compensation Law
‘Continuing Medical Maintenance’, or simply ‘CMM’, under Oklahoma Workers’ Comp Law is only that treatment and medical care that is reasonable and necessary after an injured worker reaches maximum medical improvement to maintain the status quo of his or her compensable back, neck, spine and disc injury. By Oklahoma law continuing medical maintenance for back, neck, spine and disc injury cases cannot include or consist of any of the following treatment modalities:
- Diagnostic tests or testing, such as an EMG, CT Scan, MRI, X-ray, Myelogram, Discogram, Bone Scan, Ultrasound and the like;
- Surgery or Surgical Procedures, such as laminectomy, discectomy, artificial disc and/or anterior or posterior fusion procedures utilizing cages, plates or rods;
- Spinal Injections, including epidural steroid injections (ESI) and Stellate Block procedures;
- Mental Health Counseling & Therapy for any depression, anxiety or psychological overlay caused or consequential to the original compensable Spine, Disc, Back or Neck injury case;
- Passive or Active Physical Therapy to include chiropractic, massage, traction, aquatic, manipulation, accupuncture or other procedures;
- Pain Management or other Medical Devices or Equipment, including, but not limited to any trial or permanent implantation of a Spinal Cord Stimulator (SCS), TENS Unit, Morphine or Pain Pump or any other implantable medical device.
Note: The Oklahoma Workers’ Compensation Commission has said the term “Maximum Medical Improvement” means that no further improvement can be expected from additional medical treatment or the mere passage of time.
PROHIBITION ON MEDICAL PROVIDER REQUESTING PAYMENT FROM INJURED WORKER
It is illegal for any doctor, clinic or other medical provider or hospital to bill for payment or attempt to collect any fee (or any portion thereof) for treatment or services rendered to an injured worker as part of that patient’s workers’ compensation case. It is likewise illegal for any hospital, surgeon, therapist or the like to report any workers’ compensation patient to any credit-reporting agency for that patient’s failure to pay such medical bill.
NOTE: This prohibition against a medical care provider billing, seeking payment from or reporting a workers’ compensation patient to a credit-reporting agency only takes effect upon an injured employee &/or that employee’s Oklahoma Workers’ Compensation attorney properly filing with the Oklahoma Workers’ Compensation Court that workers’ initial claim for compensation and also properly giving that worker’s medical providers actual written notice sent to the medical provider by certified mail. Said notice must necessarily include the name or names of the responsible employer and/or the workers’ comp insurance company (if known), the hurt employee’s name, the details of the injury, and finally the workers’ compensation claim number, if known.
Of course, if a workers’ back, neck, disk or spine injury claim is found to be not compensable by the Tulsa or Oklahoma City Workers’ Compensation Commission, then the hospital, clinic or physician’s office will be lawfully permitted to collect from the worker any unpaid portion of the medical bill or any other charge for medical services provided to that employee. In addition, any statute of limitations that would otherwise apply to collection of the medical, hospital or surgical bill will be tolled up to and during the time the case is pending and until a final unappealable determination is made that the workers’ back, neck, disc or spine injury is not compensable under the Oklahoma Workers’ Compensation Law.
Oklahoma Temporary Total Disability (TTD) Settlements for Back, Neck, Spine & Disc Injury Cases
Worker Entitlement & Amount of TTD Benefit Check in Oklahoma: In Oklahoma an injured worker, unable to perform the duties of his or her regular job assignment (or any “light-duty” or alternative work properly offered to him or her by the employer) as a result of limitations imposed by his or her back, neck, spine or disc injury, should, by law, be paid Temporary Total Disability (or ‘TTD’) compensation during the period of that worker’s total incapacitation. Such TTD benefit under Oklahoma Workers’ Compensation Law is to be paid at seventy percent (70%) of the hurt employee’s pre-injury average weekly wage (computation of which is described below). The periodic amount is paid weekly and also subject to a statutory maximum benefit cap, currently set at $590.63 per week. This maximum benefit amount or cap is usually raised every year on November 1st and is computed at 70% of Oklahoma’s average weekly wage for the preceding year.
How Long is Temporary Total Disability Paid under Oklahoma Workers’ Comp Law?: TTD in Oklahoma for a back, neck, spine or disc injury case is paid for the duration of the injured worker’s total incapacity to work, up to a maximum of one-hundred four (104) weeks, obviously benefits are subject to a statutory cap of two years duration, unless there is a compensable ‘consequential injury’, all as discussed in the next section.
Additional Year of Temporary Total Disability Payments Available for Worker with a “Consequential” Back, Neck, Spine or Disc Injury: In Oklahoma, a worker who can prove that he or she has sustained what is termed a ‘consequential’ back, neck, spine or disc injury, or that his or her original back or neck injury (or treatment for that condition) has caused or resulted in injury to a new or separate body part or system, and that he or she needs additional time to heal from that condition, TTD will be paid for an additional period of no more than an fifty-two (52) weeks. Any award of an additional period of TTD beyond the initial two year period must be proven by ‘clear and convincing’ evidence–a burden much higher than required to prove entitlement to other benefits under the Oklahoma Workers’ Compensation system.
The Oklahoma Workers’ Compensation Commission has said that the term “pre-injury or equivalent job” means the job title or position the injured employee was performing for his or her employer at the time his or her back, neck, spine or disc injury happened (or any other job offered to said injured worker by said employer that pays at least one-hundred percent (100%) of that injured worker’s pre-injury average weekly wages, or ‘AWW’, defined elsewhere on this site).
Three Day Waiting Period Applies to TTD Benefits Paid in Oklahoma: In Oklahoma a worker suffering a compensable back, neck, spine or disc injury will not be paid a TTD check for the first three days of the initial period of total disability–in other words, if an injured worker returns to work, is released from treatment, or his or her TTD check is properly terminated for any other reason, he or she will not suffer another three-day waiting period if he or she should reinitiate active medical treatment and be forced off work again for his or her injury.
Misconduct includes, but is not limited to the following:
- Unjustified tardies &/or absenteeism
- Abandonment or neglect of assigned job duties
- Rule &/or policy violation
- Dangerous activity or omissions
- Lying or other dishonesty
- Illegal activity
The Oklahoma Workers Compensation Law provides that an Oklahoma employer cannot discharge an injured worker:
- while said employee is drawing a temporary total disability check and simply because the worker is otherwise absent from work; or
- for the sole purpose of avoiding payment of temporary total disability benefits to that hurt worker. 85A O.S. § 7.E
On the other hand, under State workers’ compensation law, no Oklahoma employer will be forced to re-employ or retain any injured worker who, after his or her period of TTD has ended, is determined by a doctor to be unable to perform his or her regular assigned work duty (or whose job is no longer available). 85A O.S. § 7.F
Limits on Work Comp Temporary Total Disability Payments for 'Soft-Tissue' Neck, Back, Spine & Disc Injuries in Oklahoma
The Oklahoma Workers’ Compensation Court has determined that the term ‘surgery’ specifically does not include an epidural steroid injection, sympathetic nerve block or other type of injection or otherwise the placing of fluids beneath the injured worker’s skin for medical reasons, regardless of whether for treatment or diagnostic purposes.
TERMINATION OF TEMPORARY TOTAL CHECK FOR NECK, BACK AND DISC INJURY CASES UNDER OKLAHOMA LAW
Termination of Temporary Total Disability (TTD) Benefits Under Oklahoma Law Upon Injured Worker’s Release from Active Medical Treatment by his or her Authorized Treating Doctor: In Oklahoma an employer can terminate its injured employee’s TTD check when that worker is released from active medical treatment by his or her treating physician on all injured body parts that have been determined or agreed to be part of that worker’s case–including any consequential injury(its). Title 85A § 45.A.2
Under Oklahoma Law an employer can also terminate its worker’s temporary total disability check under the following additional situations:
- Missed Appointments: Employee, without proper reason or excuse, misses three consecutive appointments with his or her treating doctor or therapist;
- Noncompliance: Employee fails to follow his or her doctor’s recommendations or orders;
- Abandon’s Medical Care: Any other reason where it is proven that the worker fails to follow through with his or her medical doctor or treatment.
Procedure that must be followed by an employer to lawfully terminate an injured worker’s TTD check under Oklahoma’s Workers’ Compensation law: The process to lawfully terminate an injured worker’s temporary total disability check in Oklahoma is as follows:
- The employer (or most probably its workers’ compensation insurance company) must first notify the injured employee (or said hurt worker’s Oklahoma City or Tulsa workers’ comp attorney) of its intent and the reason it feels justified to terminate the worker’s cash benefit check. Such notification must be in writing and is generally accomplished by the employer simply filing with the workers’ comp commission a Form 13 REQUEST FOR PREHEARING CONFERENCE and designating thereon the issue of “Motion to Terminate Temporary Compensation”.
- The injured worker (or again that employee’s Oklahoma City or Tulsa workers’ compensation lawyer) then has ten (10) days (from the date of the employer’s notice to terminate TTD) to file an objection to termination of his or her temporary benefit with the Oklahoma Workers’ Compensation Commission. This is generally accomplished by the injured employee filing with the Commission his or her own Form 13 REQUEST FOR PREHEARING CONFERENCE endorsing the issue “Objection to Termination of Temporary Compensation”.
- If the injured worker or his Tulsa Work Comp Lawyer timely and otherwise properly lodge an objection to termination of his or her TTD check the Oklahoma Workers’ Compensation Commission will for-with set the matter down for a court hearing to determine whether TTD payments should be restarted. Pursuant to Oklahoma workers’ compensation law this hearing is to be set within twenty (20) calendar days of the injured workers’ attorney filing the objection to such termination.
- The injured worker’s Temporary Total Disability check will only be restarted if the hurt employee and his or her attorney can prove to the Oklahoma Workers’ Compensation Judge either: (1) a good reason for his or her medical noncompliance or abandoning treatment; or (2) that he or she is in need of further active medical treatment or surgery and cannot work in the interim. Title 85A § 45.A.2
NOTE: An administrative law judge with the Oklahoma Workers’ Compensation Commission may well select (usually following argument made upon motion made by either the injured worker, the employer or any attorney for either) an independent medical examiner (usually referred to as a ‘Court IME’) to help the Court resolve the issue of whether the injured worker indeed does need further treatment and hence a TTD check during this healing period. According to Court rules this Court IME cannot thereafter render care and treatment to the hurt worker, unless specifically agreed to be any between the injured worker on one hand and his or her employer on the other. Title 85A § 45.A.2
TTD BENEFITS REDUCED OR ELIMINATED BY WAGE LOSS OR DISABILITY BENEFITS PAID FOR BY WORKER'S EMPLOYER
Any TTD benefits otherwise due and payable to an injured worker for his or her back and spine injury will be reduced, or offset, dollar for dollar, by any amount of employer provided or sponsored periodic or lump sum wage loss type benefits which have been paid to the injured worker as compensation for the same period the payment of TTD was meant to cover. The disability benefits which are subject to this offset include, but are not limited to, as follows:
- Group Disability Policy
- Group Loss of Income Policy
- Group Accident, Health, or Accident and Health Policy
- Self-insured Employee Health or Welfare Benefit Plan
NOTE: This reduction &/or elimination of an injured worker’s TTD check where he or she receives disability income from another source does not apply to any wage loss type benefit that the worker paid the premium for himself or herself. Title 85A § 44.A
Oklahoma Worker’s Compensation Law requires an injured worker to affirmatively disclose on his or her Employee’s First Notice of Claim for Compensation, or Form 3, the identity and contact information for any insurance company or other entity providing him or her with any long or short term disability or other type of wage loss benefits for his or her back, spine, disc or neck injury that is the subject of his or her Oklahoma Workers’ Compensation Case. Title 85A § 44.B
Oklahoma Workers' Comp Temporary Partial Disability ('TPD') Benefit Payments for Back, Neck, Spine or Disc Injury
The Oklahoma Workers’ Compensation Commission has determined that the term “Temporary Partial Disability”, or ‘TPD’ refers to a hurt worker who is temporarily unable to perform his or her regular job duties, but can perform alternative or ‘light duty’ work which has been offered to him or her by the employer where the employee was working when he or she got hurt (or really even another or new employer who offers the employee work paying less than that worker’s pre-injury wage). Obviously the light duty job being offered has to be either for the injured worker to work less hours, earn less per hour worked, or even both, as long as the injured worker is making less overall than he or she was making all before the injury occurred.
Amount of Temporary Partial Disability Check in Oklahoma for Back, Neck, Disc or Spine Injury Case: In Oklahoma, any hurt employee, who is still under active medical treatment (i.e. he or she has not achieved maximum medical improvement) and is unable, as a result of his or her back, neck, spine or disc injury, from doing his or her pre-injury job (or another job equivalent in pay), but has been offered and is working light-duty work offered to him or her, will be paid a TPD check computed at seventy-percent 70% of the difference between that hurt employee’s average weekly wage before he was hurt, and his or her average weekly earnings made while performing his or her light-duty work. Again, this temporary partial disability settlement is only paid when the injured worker’s light duty assignment pays less per week than the injured worker’s job that he or she was doing at the time the injury occurred. 85A § 45.B.
Duration of Temporary Partial Disability Settlement Check in Oklahoma: A temporary partial disability check under Oklahoma Workers’ Compensation Commission rules is capped, i.e. will not be paid beyond, fifty-two (52) weeks.
EMPLOYER'S LAWFUL OFFER OF 'LIGHT-DUTY' WORK WILL TERMINATE WORKER'S RIGHT TO TTD OR TPD CHECK
In Oklahoma – if an employee who suffers a compensable neck, back, or spine injury case refuses to accept or otherwise perform light-duty work assigned to him or her by his or her employer – he or she will not be entitled to receive either a temporary total disability or temporary partial disability check. 85A § 45.B.3
The Oklahoma Workers’ Compensation Commission has said that the term “pre-injury or equivalent job” means the job title or position the injured employee was performing for his or her employer at the time his or her back, neck, spine or disc injury happened (or any other job offered to said injured worker by said employer that pays at least one-hundred percent (100%) of that injured worker’s pre-injury average weekly wages, or ‘AWW’, defined elsewhere on this site).
Oklahoma Permanent Partial Disability Settlements and Awards for Back, Neck, Spine and Disc Injury Cases
The Oklahoma Workers’ Compensation Act describes “Permanent Partial Disability” to be the nature and severity, expressed as a percentage loss of use of the total capabilities of a human body and is only determined after the injured worker has achieved maximum medical improvement–all as proven by competent medical evidence and opinion.
“Scheduled member” or “member” means hands, fingers, arms, legs, feet, toes, and eyes
When making a permanent partial disability impairment rating to an injured worker’s neck, back, discs or spine a rating doctor in Oklahoma must follow the sixth edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”.
As with all civil injury cases–Oklahoma Workers’ Compensation Court rules require that any medical opinion or evidence put before the court addressing permanent disability or impairment to a hurt worker’s back, neck, intervertebral discs or lumbar or cervical spine must be phrased within a reasonable degree of medical certainty or probability–or such evidence will be excluded from consideration by the court.
When determining permanent partial disability awards or settlements doctors and judges in Oklahoma cannot consider the injured worker’s subjective complaints of pain and other symptoms and all such evaluations must be supported by objective medical findings and evidence.
Under Oklahoma Workers’ Compensation law the determination of how much a worker’s permanent disability settlement is for his or her back, neck, spine or disc injury is ultimately made by an Oklahoma Workers’ Compensation Administrative Law Judge. 85.C.1
DETERMINING CASH AMOUNT OF PERMANENT PARTIAL DISABILITY SETTLEMENTS AND AWARDS FOR SPINE, BACK, AND NECK INJURIES UNDER OKLAHOMA WORK COMP LAW
There are traditionally two types of permanent partial disability awards or settlements under Oklahoma Workers Compensation law. “Scheduled Injuries” are by and large those that affect the injured worker’s extremities or senses (i.e. fingers, hands, wrists, elbows, feet, ankle, eyes and ears) and are generally determined by taking the percentage loss that bears to the number of weeks for that injured body part as found on a schedule. On the other hand injury to an individual’s neck, back and spine, as well as other “whole body” or “whole person” injuries (i.e. shoulders, head, hips) are determined by taking the injured worker’s impairment to his body as a whole as a percentage of three-hundred fifty (350) weeks. 85A § 45.C.8.
Permanent partial disability awards and settlements under Oklahoma Workers’ Compensation Law for Neck, Back, Spine and Disc injury cases are computed at seventy-percent (70%) of the injured worker’s average weekly wage (not to exceed a statutory cap set at Three-Hundred Twenty-Three Dollars ($323.00) per week), for that period of weeks as determined above that period again not exceeding Three-Hundred Fifty (350) weeks. 85A.C.4
EVIDENCE NEEDED TO PROVE A PERMANENT PARTIAL DISABILITY SETTLEMENT OR AWARD FOR BACK, NECK AND SPINE CASES UNDER OKLAHOMA LAW
Any demand or request for a permanent partial disability award &/or settlement for a back, spine disc or neck injury brought by an injured worker must be fully supported by competent medical testimony from a medical doctor, osteopathic physician, or a chiropractor. Unfortunately in Oklahoma an injured worker and/or his or her Oklahoma City or Tulsa Workers’ Compensation Lawyer must go forth and pay for an examination with a physician and submit to the Court a medical report supporting that workers’s permanent impairment and disability before a permanent disability award will ensue.
Any medical opinion or finding of disability made by such medical professional must be supported by objective medical findings and must further include the following opinions:
- the employee’s percentage of permanent partial disability and whether, in the physician’s opinion – this impairment is work-related and otherwise caused by the worker’s compensable back, neck or spine injury;
- any physician’s opinion as to the nature and extent of a worker’s back, neck and spine injury must be made by using criteria from the sixth edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” and said evaluator may not deviate from the sixth edition except as may be specifically provided for in those guides. 85A.45.C.1 & 3
NOTE: Medical opinions and testimony from physicians going to the issue of permanent impairment and disability to a worker’s spine must be stated within a reasonable degree of medical certainty or probability to be admissible before the Oklahoma Workers’ Compensation Commission. 85A.C.1
NOTE: Any award of PPD or impairment made by an Oklahoma Workers’ Compensation judge which is not otherwise supported by objective medical findings made by a treating physician who is also a medical doctor, doctor of osteopathy, chiropractor or a qualified independent medical examiner will be considered on appeal as a abuse of judicial discretion and vacated.
LIMITS ON WORKER'S PERMANENT PARTIAL DISABILITY SETTLEMENT OR AWARD FOR BACK, NECK, SPINE & DISC INJURY UNDER OKLAHOMA LAW
The following limits or caps apply to permanent partial disability awards and settlements for back, neck, disc and spine injury cases under Oklahoma Workers’ Compensation Law:
- PPD Awards may not exceed 100%: Permanent partial disability awards or settlements (or any combination of such awards or settlements) made to an injured Oklahoma worker cannot exceed more than one-hundred percent to the body as a whole. 85 § 45.C.1
- No award of PPD for part of spine not treated: A Permanent Partial Disability award and/or settlement will not be made or allowed for any part of the injured worker’s back, neck or spine to which no medical treatment was rendered. 85§ 45.C.2
- Two or more PPD awards or settlements may not be paid concurrently: No cash benefit payments on any permanent partial disability award can begin unless and until weekly payments on any prior disability award have been paid out or otherwise have ended or been exhausted. 85A § 45.C.7
Affect of Previous Injury or Disability on Oklahoma Workers' Compensation Back, Neck, Spine and Disc Injury Permanent Partial Disability Settlements
INJURED WORKER’S AWARD OR SETTLEMENT FOR PERMANENT PARTIAL DISABILITY WILL BE REDUCED BY PERCENTAGE OF IMPAIRMENT THAT EXISTED AT THE TIME OF HIS OR HER CURRENT BACK OR NECK INJURY CASE: The simple fact that an injured worker has suffered a previous injury or obtained disability for a prior back, neck, spine or disc injury will not automatically preclude that worker from receiving a permanent partial disability award or settlement for a subsequent accident or injury to his or her spine. However – in that situation where there exists a prior or previous PPD disability, award and/or settlement (including any prior non-work related injury or disability) and that disability is accelerated or aggravated by the later work-related event, monetary compensation for permanent partial disability will only be paid for that amount that was caused by the later work-related accident and/or injury. Certainly no compensation will be paid for the pre-existing disability or impairment in the current back or neck injury case.
REDUCTION IN COMPENSATION FOR PRE-EXISTING INJURY ONLY APPLIES TO PERMANENT DISABILITY BENEFITS: Any reduction in a hurt worker’s compensation or benefits under the Oklahoma Workers’ Compensation Act for a pre-existing disability to that worker’s back, neck, disc or spine only affects that worker’s permanent disability award for a later back or neck injury case. The reduction spoke about in the previous section does not apply to a worker’s receipt of temporary total, temporary partial, disfigurement or medical benefits under the Oklahoma Workers’ Compensation Act. 85A § 45.C.6
If an injured worker has previously been awarded a permanent partial disability benefit or otherwise settled his or her case through the Oklahoma Worker’s Compensation Court of Existing Claims or by the current Commission – the percentage found by the Court or which provides the basis for that prior settlement of the hurt worker’s back, spine or neck case conclusively establishes the amount of pre-existing disability or injury for purposes of reducing the injured worker’s award in his or her current case. For pre-existing injury or impairment to a worker’s spine, back or neck that has not been previously adjudicated or settled by either the Worker’s Compensation Court of Existing Claims (or the current Workers’ Compensation Commission) the amount of pre-existing impairment or permanent disability will be determined by a Commission ALJ based upon competent evidence submitted to the Court. 85A §45.C.6.a
Oklahoma Permanent Partial Disability Award or Settlement Deferred where Injured Worker Returns to Previous Work
Permanent Partial Disability Award “Deferred” for Employees Returning to Pre-injury or Equivalent Work: Under Oklahoma Workers’ Compensation Law any worker otherwise suffering a permanent back, neck, spine or disc injury will not be paid any Permanent Partial Disability Settlement or award as long as he or she has been offered and indeed returns to his or her pre-injury job or an equivalent work position. In such case any award of PPD will by law be “deferred” and held in reserve by that worker’s employer and/or its insurance company. 85A § 45.C.5 Furthermore – the monetary amount of any worker’s permanent partial disability award or settlement will be reduced by 70% of that injured worker’s average weekly wage for any such week he or she works for his or her old employer at his or her pre-injury or a similar or equivalent job. 85A § 45.C.5.a The following additional rules apply to this deferment process:
- If, for some reason other than misconduct, the injured worker’s employer terminates him or her (or the position being offered is not the employee’s pre-injury or equivalent job), the remaining permanent partial disability settlement award will then be paid to the employee in one lump sum. If it is alleged that the injured worker is fired for cause, that worker’s employer has the burden to prove that the employee engaged in some form of misconduct. 85A § 45.C.5.b
- During any period of time in which an injured worker refuses or neglects to return to his previous or an equivalent job, his or her permanent partial disability award or settlement will continue to be deferred and reduced by seventy percent (70%) of that hurt worker’s average weekly wage for each week he or she otherwise refuses to return to his or her prior job or equivalent work. 85A § 45.C.5.c
Vocational Rehabilitation Awards for Neck, Back & Spine Injuries Under Oklahoma Law
An hurt worker whose neck, back or spine injury is serious enough to cause him or her to otherwise be eligible for a permanent partial disability settlement or award from the Oklahoma Workers’ Compensation Commission will also be eligible to receive vocational retraining to be provided by a technology center and/or public secondary school offering vocational-technical education courses (or a member institution of the Oklahoma State System of higher education). Training under Oklahoma Worker’s Comp law will include, as appropriate, retraining and/or job placement with the goal to put the hurt worker back to gainful employment. All tuition and other retraining expenses related to vocational rehabilitation services are to be paid by the injured worker’s employer and/or its insurance company directly to the school, college or other facility providing vocational rehabilitation services to the injured worker.
Vocational Rehabilitation Director will Determine Hurt Worker’s Need For and Type of Vocational Services
If it appears that the injured worker cannot return to his or her pre-injury or an equivalent job all as a result of his or her permanent restrictions, and upon a proper and timely request from either the employer, its insurance carrier, or the injured worker, or his worker’s compensation attorney – the Vocational Rehabilitation Director will decide if that hurt employee is qualified to receive retraining and/or other vocational services. To this end the Vocational Rehab Director most likely will refer the injured worker for a vocational evaluation with a qualified vocational expert to determine the practicability for vocational retraining services in that particular case which will allow the injured employee to return to some form of gainful employment. The cost of this vocational evaluation is to be paid for by the injured worker’s employer. Upon receipt of the vocational expert’s report a Commission Judge will then order that any education, training, job placement or other vocational type services, as recommended in the report, be provided to the injured employee at the expense of his or her employer and/or its workers’ compensation insurance carrier. 85A § 45.E.2 & 4
Presumption of Need for Vocational Retraining for Certain Types of Injured Workers
Under Oklahoma Law there is a presumption that a need for vocational retraining or job placement services is appropriate for manual laborers with either one of the following neck, back or spine injuries or conditions:
- Multilevel neck or back fusion greater than two levels, and/or
- Three, four, or five level positive discogram of either or both the cervical or lumbar spine which has been surgically treated.
Vocational Rehab or Placement Program in Oklahoma Limited to a Period of One Year or Less: Vocational Rehabilitation, Retraining and/or Job Placement Services under Oklahoma Workers Compensation Law are limited to a period of not more than fifty-two (52) weeks. 85A § 45D.6
A Judge of the Workers’ Compensation Court can properly order that vocational retraining, job placement and/or other vocational type services can commence even before an injured worker has reached his or her maximum medical improvement or received his or her permanent restrictions – as long as the worker’s treating doctor feels it likely that the worker’s back, neck or spine injury will prevent the employee from returning to his or her previous work. In awarding these early vocational rehabilitation benefits deference should be given by the Court to the hurt employee’s then existing temporary restrictions and the probability that vocational retraining will indeed return the injured worker to gainful work sooner than if such benefits were to be given after the worker is released from active medical care as is traditionally the case. 85A § 45D.5
Formal Request for Rehabilitation Services Must be Made Within 60 Days of Worker Receiving Permanent Restrictions: An injured worker and/or his or her Tulsa or Oklahoma City workers’ compensation attorney must request a trial or pre-hearing on the injured worker’s entitlement to vocational rehabilitation training or other services within sixty (60) days of that worker receiving permanent restrictions that would prevent that injured worker from returning to his or her previous work or an equivalent occupation. If such a request is not properly or timely requested a worker’s right to any otherwise available vocational services will be lost. 85A § 45D.6
Income & Living Expenses Payable Where Training Away From Worker’s Home
If an injured worker’s selected training and/or rehabilitation program requires that he or she reside at that facility or away from the worker’s usual and customary place of residence – the reasonable cost of that injured worker’s room/board/lodging and travel – as well as the usual tuition, books and necessary equipment necessary for the training program will be paid by the injured worker’s employer or the employer’s worker’s compensation insurance company. In addition – where the injured worker is required to stay at the training or school facility or is otherwise required to stay away from the worker’s usual and customary residence that worker will also be entitled to an indemnity or weekly disability check all while and during the time he or she is required to be away from his or her residence for his or her retraining program. The amount of this weekly wage replacement or income check will be the same and calculated at the rate of his or her temporary total disability (TTD) benefit check – i.e. seventy percent (70%) of his or her average weekly wage (AWW).
Weekly Workers’ Compensation Benefit Check Payable to Worker Actively Engaged in Retraining Program for Purpose of Determining Permanent Total Disability Status
For those injured workers in Oklahoma whose Back, Neck, Spine or Disc Injury case is so serious that they are essentially unable to perform any form of employment whatsoever unless and until retrained said worker will be paid a weekly workers’ compensation benefit check during the time he or she is actively and in good faith participating in his or her vocational rehabilitation or retraining program. The amount of this weekly benefit paid while the injured worker is under training will be the amount and computed the same as that worker’s Temporary Total Disability (TTD) check, i.e. at seventy percent (70%) of that worker’s pre-injury average weekly wage (AWW) up to the state average weekly wage for the year the worker was injured. This weekly indemnity benefit is limited to fifty-two (52) weeks in duration. 85A § 45E.8
Amount paid by Employer and/or Insurance Company for Tuition and other Retraining Expenses can be deducted from any Final Award or Settlement Payable to the Injured Employee
An employer and/or its workers’ compensation insurance company can unfortunately deduct from any final award or settlement payable to an injured worker the amount said employer paid on behalf of the injured worker for his or her retraining program.
Oklahoma Workers' Compensation Back, Neck, Spine & Disc Injury Permanent Total Disability (PTD) Settlements
The Oklahoma Workers’ Compensation Commission has said that “Permanent Total Disability” or simply “PTD” in Oklahoma means that a worker, because of his or her industrial neck, back, spine or disc injury, now has the incapacity to earn any wages in any employment for which said worker may be or become suited by education, training, experience or vocational rehabilitation. The statute goes further by stating that any back, neck or spinal cord injury which causes an injured worker to become paralyzed or otherwise lose his or her ability to control either both hands, both legs, both feet or any combination thereof will be deemed PTD under Oklahoma Work Comp law. This is called “statutory permanent total disability” or “presumptive permanent total disability”. Certainly any Oklahoma worker rendered a quadriplegic or paraplegic from a spinal cord injury or damage caused by his or her industrial accident will be deemed or found Permanently and Totally disabled under Oklahoma law.
Amount of Permanent Total Disability Check Under Oklahoma Workers’ Comp Law
Under Oklahoma Workers’ Compensation Law an injured worker, otherwise rendered permanently and totally disabled by his or her back, neck, spine or disc injury, will be paid a periodic cash benefit computed at seventy percent (70%) of that worker’s average weekly wage (computation of which is discussed elsewhere on this site), up to a maximum amount which is equal to Oklahoma’s average weekly wage for the year in which the worker was hurt. The current maximum Permanent Total Disability check in Oklahoma is set at $867.71 for all injuries which happen in the year 2019 – and this amount usually increases every year as long as Oklahomans’ average wage increases as well. 85A § 45.D.1
Duration of Permanent Total Disability Check Under Oklahoma Law
Oklahoma Workers’ Compensation Permanent Total Disability weekly checks will continue until the injured worker’s Back, Neck and Spine injury no longer meets the definition of PTD under Oklahoma Law or the worker reaches his or her full retirement age under Social Security or for a period of fifteen (15) years – whichever is longer. 85A § 45.D.1
NOTE: If it is the case that the Oklahoma Workers’ Compensation Commission issues both a Permanent Partial and a Permanent Total Disability award the PTD award or settlement will not begin payment until the full PPD award is paid out.
NOTE: If an injured worker’s back, neck, spine or disc injury renders him or her permanently and totally disabled under Oklahoma law he or she can still draw a permanent total disability check even though he or she has not reached the point of maximum medical improvement and has also received or otherwise exhausted the statutory maximum period of temporary total disability checks of two years under Oklahoma Law (or three years if the worker has proven up a “consequential” injury). 85A § 45D.1
Worker’s Permanent Total Disability Status to BE REVIEWED ANNUALLY BY COMMISSION
The Oklahoma Workers’ Compensation Commission will review on a yearly basis each case where an injured worker has been adjudged PTD or otherwise receiving a Permanent Total check. Such review will include, but may not be limited to, requiring the injured worker to submit annually an affidavit, made under the penalty of perjury, confirming that he or she has not engaged in ‘gainful employment’ during the period under review and furthermore that he or she is not physically and/or mentally capable of performing such gainful work. Failure to file such an affidavit will result in suspension of a permanent total disability worker’s check. 85A § 45.D.2
“Gainful Employment” has been defined by the Oklahoma Workers’ Compensation Court to mean an injured employee’s ability or capacity to perform work for money or wages that is not sporadic, occasional or casual.
DISFIGUREMENT AWARDS ON OKLAHOMA BACK, NECK, DISC AND SPINE INJURY COMPENSATION CASES
Oklahoma Workers’ Compensation Court may award up to $50,000.00 for Permanent & Serious Disfigurement
An injured worker, sustaining serious and permanent burns, scars and disfigurement as a result of his or her back, neck, disc or spine injury may be awarded a lump sum disfigurement settlement up to a maximum amount of $50,000.00 by the Oklahoma Workers’ Compensation Court. An award of disfigurement in Oklahoma cannot be made until at least twelve (12) months have passed after a worker’s injury causing such disfigurement.
Injured Worker Cannot Receive Both a Disfigurement and Permanent Partial Disability Settlement to the Same Part of The Body
In Oklahoma an injured worker cannot receive both a disfigurement award and a permanent partial disability settlement to the same part of the body. This requires, where an injured worker has both scarring, burns and disfigurement as well as a permanent orthopedic, neurologic or other anatomical injury, to choose between receiving either an award for disfigurement or a permanent partial disability settlement. In other words he or she cannot receive both.
EXAMPLE: Most typically when an injured worker gets neck surgery in Oklahoma the surgeon will remove bone from that worker’s hip to put in the worker’s neck to replace the disc and otherwise complete the fusion. In such case the injured worker cannot get both disfigurement to his or her neck from the scar where the surgeon went in to the worker’s neck to perform the surgery in addition to permanent partial disability for the neck fusion. He is she must choose one or the other. The worker, however, can get a disfigurement award for the scar on the worker’s hip caused from the procedure performed to remove bone from the worker’s pelvis to complete the fusion. In virtually all cases the injured worker and/or his or her worker’s compensation attorney will elect to receive permanent partial disability for the neck injury and fusion, as undoubtedly the impairment from such an injury and resulting surgery will yield more in monetary benefits than the disfigurement from the scar left from the actual surgical procedure. In other cases the decision may not be so clear, however.