Workers’ Comp Lawyers in OKC
Introduction to Oklahoma Whole-Person (or Whole-Body) Permanent Partial Disability Cash Settlements
Oklahoma, as is true in most other states, has two different methods of determining or measuring the amount of permanent and partial disability sustained by an injured worker—which criteria used being wholly dependent upon the part of the employee’s body injured. These two methods, and the precise body parts covered by each such protocol, can be summarized as follows:
“Scheduled” or “Extremity” Injuries
This would include injury, disease and/or amputation to a worker’s limbs including his or her toes, fingers (including the thumb), hands, feet, knees, elbows, arms, and legs. This would also include permanent injury or damage to an employee’s sensory organs, such as his or her eye(s) or ears (hearing). Each of these body parts has a specific number of weeks assigned to it for complete loss (or loss of use) of that part—hence that is where the term “scheduled” injury comes from.
Whole-Body, Whole-Person, Non-Scheduled, or Unscheduled Injuries
As the name implies, non-scheduled or unscheduled injuries are those body parts that cannot or are not listed, covered, or addressed by the permanent partial disability schedules maintained by the Oklahoma Workers’ Compensation Court. Since the workers’ comp schedules generally apply to an injured worker’s limbs or extremities, unscheduled or whole person injuries are more focused on an injured employee’s body, trunk, torso, or head, as well as internal injury to organs. Examples of unscheduled or whole-man injuries are as follows:
- Head/Brain Injury(ies): Such as Post-Concussion Syndrome, Traumatic Brain Injury (“TBI”); Closed-Head Injuries (“CHI”), skull, jaw & other facial fractures (including orbital “blow-out” fractures) and any Post-traumatic Seizure Disorder.
- Mental Injury and Psychological Impairment: Including Post-Traumatic Stress Disorder (“PTSD”), Major Depression or Depressive Disorder (“MDD”), Mood Disorders, Anxiety and/or panic disorders and finally, any adjustment disorders.
- Neck and/or Cervical Spine Injuries: Including herniated (“HNP”), bulging, ruptured, torn and/or other intervertebral disc disorders; vertebral, burst, transverse process and compression fractures; and finally cervicalgia, stenosis and cervical radiculopathy.
- Low Back, Sacroiliac and other Lumbar Spine Injuries: Which would include conditions that cause low back pain and radiculopathy, including sciatica, lumbago, sacroiliitis, spondylolisthesis; lumbar disc trauma such as ruptured, torn, bulging and herniated lumbar intervertebral discs; as well as compression and burst fractures.
- Shoulder Injuries and Trauma: Including shoulder impingement syndrome, “frozen” shoulder, rotator cuff tendinitis and rotator cuff tears, including tears of the supraspinatus and subscapularis tendons, biceps tendon tears, shoulder dislocations, Superior Labrum (SLAP) tears, AC (acromioclavicular) joint separations and finally, clavicle (collar bone) fractures.
- Hip Joint Injuries and Disorders: Including labral tears and bursitis as well as femoral neck, intertrochanteric and subtrochanteric hip fractures.
- Heart, Lung and other Internal Organ Injury and Damage: This would necessarily include injury and disease to a worker’s lung such as chronic obstruction pulmonary disease, silicosis, and asbestosis and heart attacks and myocardial infarction.
This article will consider itself only with “whole-person” or unscheduled injuries. The monetary value of unscheduled injuries is discussed elsewhere on this site.
Proper Workup of Whole-Person Injury Case for Maximum Settlement Value in Oklahoma
Considering that permanent partial disability is only addressed and determined at the end of the case once the injured worker reaches his or her maximum medical improvement (discussed below); and any permanent partial settlement or award must be based upon objective clinical and diagnostic findings and evidence (also discussed below), it is absolutely imperative that an injured workers’ injury and case be promptly and completely developed. This can only happen if an injured worker hires an experienced Oklahoma City and/or Tulsa Workers’ Compensation Attorney as soon as possible after his or her injury to get the proper care, treatment and diagnostic testing necessary to document the true nature and extent of that worker’s injury. Proper workup and development of a permanent partial disability settlement requires expensive and sophisticated diagnostic testing—which undoubtedly will be resisted by the injured worker’s employer and its workers’ compensation insurance company. This testing would include the following:
- Magnetic Resonance Imaging (MRI) Scan: Sometimes performed with the use of Gadolinium contrast used to visualize and identify scar tissue and re-herniation in the case of spine injuries.
- Computerized Tomography (CT) Scan: A series of computer processed x-ray images for more detail than would be seen on a plain x-ray scan.
- Myelogram: Which uses contrast dye in combination with x-ray (or CT) imaging to visual problems with the spinal cord, spinal canal and/or nerve roots.
- Discogram (or Discography): Achieved through an invasive process where contrast dye is injected into the disc and viewed through radiography to determine the integrity of the disc.
- Electromyogram and Nerve Conduction Studies (EMG/NCS): To examine the sensory and motor nerves for damage and other injury such as sciatica or radiculopathy from a ruptured disc or direct injury to a nerve such as from blunt force, crush or a brachial plexus injury.
Determination of Whole-Body Permanent Partial Disability Cannot Be Made Until Worker Reaches Maximum Medical Improvement, or “MMI”
The Oklahoma Workers’ Compensation Court has determined that the term “Maximum Medical Improvement” or “MMI” means that point in time where an injured workers’ injury has become static and, in most cases, permanent, and no further care and treatment nor the mere passage of time will lead to further improvement in his or her condition. There mere fact that further medical care, typically conservative in nature, is needed to keep the workers’ condition static and/or to prevent his or her condition from deteriorating—does not prevent a hurt worker from being deemed and otherwise declared at MMI. Generally, if and when an injured employee reaches maximum medical improvement is a medical question to be determined by a physician following a clinical examination of the worker and a review of his medical records and diagnostic testing.
Under Oklahoma law—whether a worker has sustained a permanent partial disability and the extent thereof, including permanent impairment for whole-person and non-scheduled injuries, can only be made after that worker reaches his or her maximum medical improvement.
Mandatory Use of 6th Edition of AMA Guides to Evaluation of Permanent Impairment in Whole-Body or Non-Scheduled Injury Cases
Unlike scheduled member injuries – by law any opinions and determinations of permanent impairment for whole-person or whole-body injuries must be made by medical experts and Oklahoma Workers’ Compensation Judges pursuant to, and in strict compliance with, protocol set forth in the Sixth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. If fact, the only deviations from the AMA Guides that are permitted by Oklahoma Law are the deviations from the guides provided in the actual guides themselves—and any such Guide-permitted deviation must be found by the Oklahoma Workers’ Compensation Court to be necessary and reasonable as shown in Court by clear and convincing evidence.
Medical Evidence Needed to Prove a Whole-Person Permanent Partial Disability Award or Settlement Under Oklahoma Compensation Law
Under Oklahoma Workers’ Compensation court rules, any medical opinion and testimony concerning a hurt employee’s permanent partial impairment for a whole-man injury must be provided by either a Medical Doctor (M.D.) or Doctor of Osteopathic Medicine (D.O.) licensed to practice medicine by the state of Oklahoma. Such expert opinion must by based upon identifiable objective evidence and provided within a reasonable degree of medical certainty.
Objective evidence or findings are those established by either or both clinical office findings made by the doctor or by objective radiographic or laboratory testing attributable to an injured worker’s condition. Certainly, Oklahoma Workers’ Compensation law strictly prohibits a doctor or Judge from making any finding or considering an injured worker’s subjective complaints of pain when evaluating or otherwise determining that worker’s permanent disability or final settlement. In other words, “pain and suffering” is not a compensable item of damage under Oklahoma compensation law—and it is reversible error for a workers’ comp judge to take an injured worker’s subjective symptoms into consideration when assessing and deciding his or her permanent partial disability settlement.
In Oklahoma—an expert medical opinion offered by licensed physician must contain, at a minimum: (1) the hurt worker’s whole-person permanent partial impairment rating, expressed as a numerical percentage of one hundred percent; and (2) whether or not, in the expert’s opinion, that permanent injury is work-related and proximately caused by the accidental injury or occupational disease that forms the basis of the underlying compensation case. Equally important to an expert medical witness’ opinion on permanent disability is the doctor’s opinion that the injured worker has, indeed, reached maximum medical improvement, or “MMI” as that term is defined above.
Use of Narrative Medical Reports to Prove Whole-Person Permanent Partial Disability Settlement in Oklahoma
In Oklahoma, as is true in most states, an attorney may offer competent expert medical testimony as to the fact, nature, and extent of his or her client’s whole-person permanent partial disability by any one of the following methods:
- A pre-trial (or with the Court’s permission, post-hearing) evidentiary deposition of that party’s expert medical witness (i.e. medical doctor or osteopath).
- Testimony from a party’s medical expert witness made in open court before the workers’ compensation Judge.
- Narrative medical report offered by a party containing his or her medical expert’s opinion as to the injured worker’s whole-person permanent partial disability rating.
The fact that a party’s written expert narrative report constitutes hearsay testimony otherwise inadmissible under Oklahoma’s rules of evidence is not grounds for an objection and its exclusion per the rules of the Oklahoma Workers’ Compensation Court. However, upon timely objection, any party not offering a report may demand cross-examination of the expert medical witness who authored the written report. In such case the party objecting and requesting cross-examination will be responsible for all costs in obtaining the testimony of the opposing party’s expert, including the doctor’s reasonable charges to prepare for and give his or her testimony, as well as the costs associated with a deposition proceeding.
Calculating the Precise Dollar Amount of a Whole-Person Permanent Partial Disability Settlement Award in Oklahoma
Two factors need to be determined before the cash dollar amount of an injured worker’s whole-body settlement can be calculated for an Oklahoma workers’ comp case:
- Injured worker’s whole person permanent impairment rating calculated under and in strict compliance with the AMA Guides, 6th Edition, described above.
- The worker’s weekly indemnity rate for permanent partial disability.
How to determine an injured worker’s whole-person impairment is discussed in full detail above. Calculating his or her weekly indemnity rate for permanent partial disability can only be determined after that worker’s average weekly wage, or earnings have been calculated according to the Oklahoma statutes detailing the same. Precise and proper calculation of an injured worker’s average weekly wage is discussed in full detail elsewhere on this site. However, for demonstration a general overview of calculating an injured worker’s average weekly wage, and hence his or her weekly permanent partial disability rate, will be provided here for simplicity.
In Oklahoma—a hurt employee’s average weekly wage is typically calculated by taking that employee’s gross earnings and dividing these total earnings by the number of full weeks the employee worked for his or her employer before the injury. That number would be the worker’s average weekly wage. Next, the injured employee’s permanent disability indemnity rate would be determined to be 70% of his or her average weekly wage. Example: employee worked for his or her employer for eleven (11) full weeks before his or her injury and had gross total earnings (before taxes and other deductions) of $5,328.32. This would produce an average weekly wage of $484.39 and a weekly indemnity rate for calculating his or her whole-man permanent disability settlement of $339.07:
$5,328.32 (earnings) / 11 (weeks) = $484.39 x 70% = $339.07 (rate)
Now the dollar amount of the settlement can be calculated. For example, assume an injured worker’s impairment rating under the 6th Edition of the AMA Guides has been determined by the Court to be 25% to the whole person. In Oklahoma the amount of the percentage is multiplied by three-hundred and sixty (360) weeks—and the number of weeks so calculated is now multiplied by the injured employee’s weekly permanent disability rate, calculated above. Following our example this worker’s whole-man permanent partial disability settlement would be $30,516.30.
25% (rating) x 360 (weeks) x $339.07 (rate) = $30,516.30 (PPD award)
Using our example, any 25% whole person impairment rating in Oklahoma will produce an award based on a consistent ninety (90) week period. The factor that will invariably change will be an individual worker’s weekly PPD rate which of course would depend on each worker’s weekly pre-injury earnings.
Maximum Weekly Rate for Whole-Person Permanent Partial Disability Settlements in Oklahoma
Unfortunately Oklahoma, like most states, has a maximum weekly rate or dollar amount that is utilized to determine an injured worker’s whole-person impairment award or settlement. It is an arbitrary “cap” if you will on the weekly dollar number rate that goes into computing the permanent disability settlement, which, of course, “caps out” the total gross cash settlement amount a worker can receive for a permanent partial disability settlement in Oklahoma.
The maximum weekly dollar rate or amount for PPD in Oklahoma is quite low, currently set at $360.00 per week, which means it will undoubtedly affect the overwhelming majority of injured workers in Oklahoma since most workers are earning a weekly wage or salary that, at 70%, would far exceed that $360.00 capped amount. For example, a worker earning only $514.50 per week would be capped at that $360.00 weekly amount—and obviously any worker in Oklahoma earning more than $514.50 per week will suffer a reduction in his or her whole-person settlement as a result of the cap.
For example, the same worker as described above, who instead had pre-injury average weekly earnings of $1,000.00, would, if not capped, have a weekly rate for whole person permanent partial disability of $700.00 ($1,000 weekly wage x 70% = $700). If not for the Oklahoma cap on that worker’s weekly PPD rate he or she would be entitled to a whole-body permanent partial disability award of
$0.25 (rating) x 360 (weeks) x $700 (weekly PPD rate) = $63,000.00.
Instead, with the Oklahoma Workers’ Compensation Court’s maximum weekly PPD rate ‘cap’ of $360 that worker’s whole-body permanent partial settlement would unfortunately look like this:
$0.25 (rating) x 360 (weeks) x $360 (capped weekly rate) = $32,400.00
The following chart shows the total number of weekly benefits a given percentage of whole person impairment will give an injured worker in Oklahoma, as well as the total dollar amount of that same worker’s PPD settlement at the maximum rate of $360 for that same percentage whole-man impairment. Certainly, the total dollar settlement amount listed in the following chart will apply to the specific percentage impairment listed if that same injured worker’s average weekly earnings prior to his or her injury exceed the amount of $514.50 per week.
Number of Weeks of Benefits and Total Dollar Settlement (at Maximum Rate) of Specified Whole-Person Impairment Ratings in Oklahoma