Judge Tom Talks

Crosswalk and Disposition Tables

noreply@blogger.com (Tom Leonard) — Wed, 10 Aug 2011 09:56:00 +0000

The Oklahoma Workers' Compensation Act is repealed, and the Oklahoma Workers' Compensation Code is adopted. Most of the old provisions have been retained, but the numbering is new and the subsections have been shuffled. For example §3 (Definitions) of the Act is now §308 of the Code.

Tish Sommer, Special Counsel of the Oklahoma Workers' Compensation Court, alleviated this chaos by creating crosswalk and disposition tables that permit a quick, painless transition from the Code to the Act and from the Act to the Code.

The crosswalk table lists every section and subsection of the Code and points to its old location in the Act. The disposition table lists each provision of the old Act and points to its new location in the Code.

For those who are regular users of my website, the tables will be conveniently listed in the sidebar.

Budget Outlook for Oklahoma

noreply@blogger.com (Tom Leonard) — Mon, 13 Dec 2010 12:18:00 +0000

If you are unfamiliar with the Oklahoma Policy Institute, go to its website and bookmark it, add it to you feed reader or follow it on Twitter. It is the premier source for "timely and credible information, analysis and commentary on policy issues affecting Oklahoma."

Often quoted by the Tulsa World and Daily Oklahoman for its continuing series analyzing our state's fiscal policy and planning, its latest blog post is must-reading if you want the details and not just the spin.

Its latest analysis is a call to government to develop a long-term plan for revenue and expenditures, not just dealing with "this year's shortfall." According to David Platt, executive director, "we face a short-term outlook in which overall budgets are falling or flat; in FY ’14, three budget cycles from now, we project that the budget will still be less than FY ’08."

Every Oklahoman should become familiar with the term "tax expenditures." It is a budget term that essentially means depleting our tax base by giving tax exemptions, deductions, incentives, credits and the like that allow taxes not to be paid when they otherwise would. You didn't here about this until OKPolicy released its research early this year and reported that "[t]he total cost of tax expenditures - at least $5.6 billion in FY ’08 – equals more than 75 per-cent of total state appropriations and grew by over $1 billion, or 23 percent, in just two years."

The easy answer is to keep on doing what we've been doing, but OKPolicy gives us hope that farsighted, informed decision-making will lead to a stronger Oklahoma.

The Bunkhouse Rule

noreply@blogger.com (Tom Leonard) — Mon, 06 Dec 2010 12:49:00 +0000

The Supreme Court of South Carolina held that a worker's injuries occurred within the course and scope of his employment where the migrant worker sustained a right ankle fracture when he fell on a wet sidewalk outside housing provided by his employer at a remote tomato farm. The housing was supplied to the worker at no charge, in part, because of the remote location of the work site. Frantz Pierre v. Seaside Farms, Inc., 689 SE 2d 615, 386 SC 534, 2010

According to the Supreme Court, whether a worker was contractually required to live on the employers premises was not necessarily as important as whether the practical circumstances required that he or she live there. It determined that the worker in the instant case was essentially required to live on the employers premises by the nature of his employment and was making a reasonable use of the employer-provided premises at the time of his accident. The court also indicated that the workers injury was causally related to his employment in that it was due to the conditions under which he lived, i.e., a wet sidewalk outside his building.

The SC Supreme Court cites the rule in Larson "When an employee is required to live on the premises, either by his contract of employment or by the nature of his employment, and is continuously on call (whether or not actually on duty), the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment. However, if the employee has fixed hours outside of which he is not on call, compensation is awarded usually only if the course of the injury was a risk associated with the conditions under which claimant lived because of the requirement of remaining on the premises." 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, §24.01 (2009).

Reference: Oklahoma Workers' Compensation Law, Resident Employees.

IME Report Writing

noreply@blogger.com (Tom Leonard) — Mon, 08 Nov 2010 12:51:00 +0000

In Oklahoma workers' compensation reports from independent medical examiners are prepared by physicians who are either court-appointed or hired by one of the parties. The rules for drafting a competent report that will not only be admissible in Court, but also be credible on the issues to be decided, are at first glance hazy and ill-defined.

Former Judge Mary Black has cut through the fog with a report that she presented at the 2009 Court Educational Conference. While she gave the program at a breakout session, most of the non-medical attendees were listening to another speaker; and attorneys and claim handlers may have missed her speech.

The paper, IME Reports - Writing for Physicians, has been posted on my website. It is the best explanation of the myriad rules and pitfalls of report writing. Worth reading by those who write reports and by those who study and interpret them.

Rebirth of Positional Risk? You Make the Call.

noreply@blogger.com (Tom Leonard) — Mon, 01 Nov 2010 10:03:00 +0000

While making a run a truck driver violently gags on a piece of breakfast sausage and ruptures a cervical disc. Compensable? Arising out of employment? Yes for injuries occurring prior to 1986; no for injuries occurring from 1986 to July 1, 2005; for later injuries, what do you think?

Prior to the 1986 amendments to the Act, Oklahoma cases generally relied on the increased risk doctrine to determine whether a risk arose out of a worker's employment. However, the positional risk test had also been applied. In the food choking episode of Fox v. National Carrier, 1985 OK 91, 709 P.2d 1050, 1053, the Supreme Court held that but for claimant's employment as a truck driver he would not have been exposed to risk of choking on food at the restaurant. In other words, his risk of choking while engaged in the purely personal task of eating breakfast occurred because of the position he occupied while he was on duty and in the course of his employment.

In 1986, the Oklahoma Legislature amended the Act to require that "only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of employment." This language acted as a legislative repeal of the Fox ruling.

American Management Systems v. Burns, 1995 OK 58, ¶7, 903 P.2d 28, held “The 1986 amendment of 85 O.S. 1981 §3(7), which requires the source of a compensable injury to be employment-related - i.e., one that does not stem from a purely personal risk - plainly contravenes this court's pronouncement in Fox v. National Carrier. No longer may an injury be viewed as compensable solely because the worker, while in the course of employment, was exposed to the risk of harm. The law demands that the risk responsible for injury be causally connected to employment and exceed the ordinary hazards to which the general public is exposed.” See also, Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309.

Then along comes the 2005 reforms, and the legislature struck the “purely personal risk” language. Under the rules of statutory construction, "legislative familiarity with extant judicial construction of statutes in the process of being amended is presumed." Lekan v. P & L Fire Protection Co., 1980 OK 56, 609 P.2d 1289; Fenwick v. Oklahoma State Penitentiary, 1990 OK 47, ¶15, 792 P.2d 60.

Considering the clear pronouncement of Burns that the phrase “purely personal risk” effectively overruled Fox v. National Carriers, and the 2005 deletion of that term, did the legislature reinstate the Fox positional risk holding? If so, food ingestion accidents, spider bites in motels, good samaritan injuries and other off-premises claims of traveling employees may now be compensable.

You make the call.

Recreational Activities Are Not Compensable Under Oklahoma Law

noreply@blogger.com (Tom Leonard) — Mon, 25 Oct 2010 10:53:00 +0000

The 2005 amendments to the Oklahoma Workers' Compensation Act excluded recreational and social activities from the definition of injury. "Compensable injury" shall not include . . . injury incurred while engaging in, performing or as the result of engaging in or performing any recreational or social activities. 85 O.S. §3(13)(d), effective July 1, 2005.

Recreational injuries occurring prior to July 1, 2005, are generally compensable when 1) they occur on the business premises and are a regular incident of the job, or 2) participation was compulsory, or 3) there was a substantial direct benefit to the employer. If any one of these criteria is met, the claim is compensable, including travel to and from an off-premises Christmas party and taking the baby sitter home. Oklahoma Natural Gas Co. v. Williams, 1981 OK 147, 639 P.2d 1222.

The language of the new exclusion was interpreted by the Court of Civil Appeals in the case of Orcutt v. Lloyd Richards Personnel Service, 2010 OK CIV APP 77, __ P.3d __.

During his lunch break Andrew Orcutt injured his knee playing basketball in the company warehouse on a floor that had a goal and painted boundaries. The employer knew about, encouraged, and acquiesced in the games. Under the pre-2005 rules the claim would be clearly compensable. However, the trial court denied the claim based on the plain meaning of the new exclusionary terms. The COCA affirmed the trial court decision.

In an interesting sidelight (called dictum in the legal world), the COCA commented on the constitutionality of the provision. Although the issue was not properly framed for their consideration, the judges found that the legislative changes did not deprive a recreationally-injured worker of any constitutional rights. The legislature has the power to exclude classes of injuries that were compensable prior to the enactment.

The larger, unanswered question is whether employers no longer have tort immunity for injuries sustained at recreational and social functions such as Christmas parties, company sponsored sports leagues, the Orcutt basketball pick-up game, attendance at charitable events to name a few.

Six-Month Statute of Limitation Is Unconstitutional

noreply@blogger.com (Tom Leonard) — Wed, 20 Oct 2010 12:03:00 +0000

Oklahoma's 2005 amendments to the Workers' Compensation Act included a shortened period of time for terminated workers to file claims. Normally an injured employee must file a claim within two years of the date of injury or the date of last payment of compensation or medical benefits. Otherwise, the claim is barred; and benefits will be denied when the "statute of limitations" defense is asserted.

The 2005 legislative change added a special provision that stated "[p]ost-termination injury claims shall be filed within six (6) months of termination of employment." Although many court-watchers had believed that the new law was unconstitutional, it was not effectively challenged until the case of Ponca Iron & Metal v. Wilkinson, 2010 OK 75, __ P.3d __.

Jackie Wilkinson worked for Ponca Iron & Metal until her employment terminated on December 18, 2005. She filed her claim for compensation (Form 3) more than six months later. Employer argued that the six-month limitation barred her claim, but her attorney argued that the provision was unconstitutional. The trial court denied the limitations defense, awarded benefits and held that this section "unreasonably singles out employees who have been terminated and have sustained cumulative trauma injuries. The law is in direct conflict with the general two year statute of limitations for cumulative trauma injuries and arbitrarily puts an unfair burden on these claimants."

The Court of Appeals affirmed the decision without addressing the constitutional issue, and the Supreme Court granted review to address a question of first impression.

In a 7-2 opinion the Supreme Court held the six-month limitation violated the prohibition against special laws found in Art. 5 §46 of the Oklahoma Constitution. "[S]pecial laws are all those that rest on a false or deficient classification [and] create preference and establish inequality." Barrett v. Board of County Comm'rs of Tulsa County, 1939 OK 68, ¶0 (syllabus 3) and ¶7, 90 P.2d 442, 443 and 446.

Accordingly, the Court held "The classification of injured employees on the basis of continued versus terminated employment is a false and deficient classification of the larger class of injured employees because it creates preference for members in the continued employment group and results in unequal treatment for certain members of the terminated group that bear no reasonable relationship to curtailing retaliatory claims or preventing stale claims. Hence, we find the action of the Legislature to be unreasonable in their creation of this particular statutory classification. We hold the 2005 amendment to §43(A) adding the six-month statutory limitations period is unconstitutional."

NCCI Reports Continuing Decline in Claim Frequency

noreply@blogger.com (Tom Leonard) — Mon, 18 Oct 2010 11:53:00 +0000

According to NCCI claim frequency decreased in 2009 by 4.0% from 2008 (last year the annual decline was 3.4%). This continues a twenty-year downward trend that is expected to extend into 2010. You can read the full research report on its website, www.ncci.com.

Much of the reason for the current decline is the weakness in the job market. My colleagues and I often speculate about the impact of recession and recovery on claim frequency. NCCI's research explains it this way:

". . . economic recessions typically put additional downward pressure on claim frequency. This is because, during recession, there is less ― 'job creation', which translates into a more experienced, and thus less accident-prone, workforce. Additionally, during recessions, heightened ― 'job destruction' puts upward pressure on frequency as laid off workers may look to workers compensation for wage continuation. Taken together, NCCI research concludes that, during recessions, the impact of lessened job creation outweighs the impact of heightened job destruction, thus causing frequency to drop more than it would otherwise. During economic recoveries, as job creation picks up and job destruction abates, the proportion of inexperienced workers increases, thus putting upward pressure on frequency. However, unless the economic recovery is vigorous, this upward pressure is weaker than the general downward trend in frequency."

Tolling Limitation for Reopening Claims

noreply@blogger.com (Tom Leonard) — Mon, 27 Sep 2010 11:00:00 +0000

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

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

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

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

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

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

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

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

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

Congratulations to Owen Evans and David Reid

noreply@blogger.com (Tom Leonard) — Sun, 26 Sep 2010 16:43:00 +0000

Oklahoma Gov. Brad Henry appointed two Tulsa attorneys to the Workers' Compensation Court. David Reid succeeds Judge Mary Black, and Owen Evans will take my place on the Court. Let us all offer our congratulations and best wishes to both. They are seasoned lawyers who will hit the ground running.

For now, I plan to continue in the work comp arena. Keeping the Workers' Compensation Law website updated remains a priority. As things develop, I will keep you posted.

Oklahoma Legislative Changes, 2010

noreply@blogger.com (Tom Leonard) — Tue, 13 Jul 2010 13:55:00 +0000

Our staff attorney, Tish Sommer, has prepared a summary of the 2010 legislative changes to the Oklahoma Workers' Compensation Act. Enjoy!

Major Cause --- What Does It Mean?

noreply@blogger.com (Tom Leonard) — Wed, 17 Mar 2010 12:30:00 +0000

The March 13 issue of the Oklahoma Bar Journal is devoted to workers' compensation. One of the articles (written by yours truly) analyzes the "major cause" requirement for compensability of a work injury. My regular readers know that there are no published cases addressing the meaning of this term. If you decide to read it, remember that the conclusions are only a best guess of what the Supreme Court ultimately will say about major cause.

Major Cause --- What Does It Mean? can be viewed at my website.

All articles can be accessed at the OBA website or by clicking here. They include:

Revisiting the Vortex: The Collision of the Oklahoma Workers' Compensation Act, FMLA, ADA by Madelene A.B. Witterholt and Tyson D. Grayson;
Mediation and Workers' Compensation by Michael G. Coker;
The Evolution of Workers' Compensation in Indian Country by Jay Jones;
The Eight-Week Soft Tissue TTD Limitation by James M. Wirth;
Illegal Aliens, Immigration Policy and Workers' Compensation by Pam Cornett; and
Medicare Considerations for the Workers' Compensation Practitioner by Valerie Evans.

To Abey, or Not To Abey.

noreply@blogger.com (Tom Leonard) — Mon, 22 Feb 2010 12:03:00 +0000

A long, long time ago the word "abeyance" crept into our workers' compensation lexicon. According to The Free Dictionary by Farlex, it means temporarily suspended, on ice, in cold storage, hanging fire. The term does not appear in the Oklahoma statutes.

It was used before 2006 in Court Rule 19H (now renumbered Rule 39A) to describe the procedure for enforcement of 85 O.S. §25 requiring an injured employee to submit to a medical examination when ordered by the Court. This mandate and its resulting penalty reduce the risk of obstructive behavior by the employee, but it must be strictly construed.

Today abeyance is used in situations that exceed its original intent. It is typically raised by motion to the Court when the claimant misses a physician's appointment, fails to appear for deposition, cancels or misses physical therapy, refuses surgery due to pregnancy or when conflicting treatment for an unrelated disease or injury precludes treatment for the work injury.

Let's look at the statute and the rule. 85 O.S. §25 which provides: "An employee claiming or entitled to compensation under the Workers' Compensation Act, shall, if ordered by the Court, submit himself for medical examination. . . . If an employee refuses to submit himself to examination, his right to prosecute any proceeding under the Workers' Compensation Act shall be suspended, and no compensation shall be payable for the period of such refusal."

Under Court Rule 39A compensation may be suspended upon request indicating that respondent has given the claimant reasonable notice to appear for an examination and has delivered the statutory travel expenses. The burden then shifts to the claimant to show cause that there is a reasonable, credible excuse for the failure to appear.

The statute and rule only apply to medical examinations. The suspension of compensation issue based on these provisions therefore only arises in cases involving questions such as medical causation, need for treatment, temporary compensation and whether claimant has attained maximum medical improvement.

The forfeiture penalties of §25 and Rule 39A are not automatic. Due process of law requires that after compliance by the employer with Rule 39A claimant should be afforded a hearing to show that his failure to appear should be excused. McMinn v. State Industrial Court, 1961 OK 280, 366 P.2d 954. An injured worker may not be denied compensation because of refusal to accept medical treatment tendered by his employer, unless it be shown that such refusal was arbitrary and unreasonable. Macklanburg-Duncan Company v. Wimmer, 1955 OK 24, 280 P.2d 1001.

Neither the statute nor the rule empowers the Court to suspend compensation for failure to appear at deposition or for regularly scheduled or routine medical treatment. Willful failure to appear for deposition is subject to discovery penalties such as assessment of cost and attorney fees, dismissal of the claim or other sanctions. When the claimant fails or refuses to accept the treatment recommendations of a treating physician, case law sets the standard for terminating benefits.

Employer's duty to provide medical treatment creates the implied obligation of the employee to accept reasonable remedial measures that will cure or improve his condition. Cases discussing this obligation are found on the Oklahoma Law website at here and here. The modern rule states that a claimant does not forfeit compensation benefits when a medical condition, not caused by claimant, requires that the treatment being provided be postponed.

Conclusion: In those rare instances when an employee refuses a medical examination, the employee can lose temporary compensation until he complies with with the Rule 39A. The same claimant who has reached MMI could also lose the accrual of permanent benefits by unexcused failure to appear for a rating examination. However, not every failure will trigger the penalty of §25.

NCCI Report on Older Workers

noreply@blogger.com (Tom Leonard) — Wed, 20 Jan 2010 02:06:00 +0000

NCCI has released a new study on the impact of older workers on the work comp system. The long term impact is still uncertain as more workers defer retirement due to economic downturn and resulting loss on individual retirement imvestments.

For review and analysis of the report by our friend Jon Coppelman, take a look at the Workers' Comp Insider.

Texas Jury Awards Worker $70M

noreply@blogger.com (Tom Leonard) — Tue, 05 Jan 2010 19:25:00 +0000

That's right, worker awarded $70M in Texas case. That's M as in million. Read the account of this collosal verdict in the Journal-Record. It includes $20M for claimant's attorney fees. That's M as in million.

This monster verdict would not have been possible without the Texas workers' compensation reform that allowed employers to opt-out. Surely this will lead to alot of finger pointing and calls for more reform or a return to the old system. And the beat goes on. . . .

Annual Change in Mileage Reimbursement

noreply@blogger.com (Tom Leonard) — Mon, 04 Jan 2010 17:01:00 +0000

From the OSCN website:

The Internal Revenue Service has announced a decrease in the mileage reimbursement rate, effective January 1, 2010, to $0.50 per mile. This is a decrease from the $0.55 rate for 2009. (See IR-2009-111, Dec. 3, 2009, Internal Revenue Procedure 2009-54). The new rate is for travel incurred on and after January 1, 2010, not for 2009 travel reimbursement claims submitted after January 1st.

Post-Holiday Surge in Disability Claims

noreply@blogger.com (Tom Leonard) — Wed, 23 Dec 2009 10:45:00 +0000

The Well column of the New York Times posted a review of a recent study by The Hartford insurance company on the seasonality of illness and injury: low incidence of injury for the holidays and spiking rates in January and February.

Merry Christmas everybody. I'm feeling too good to write anything else. See you in January when the depression sets in. TomL

Comment on CompSource Privatization

noreply@blogger.com (Tom Leonard) — Mon, 07 Dec 2009 13:30:00 +0000

Interesting comment from an anonymous source (because of the Blogger protocols) has been posted on CompSource Privatization. This needs to be said:

What would probably help more than anything is to require in state handling of all WC claims. Alot of adjusters located in other states handle multiple states therefore they have different ideas on what they can do or not do and tend not to be as efficient. They can sometimes confuse one state with the other. From experience, it is difficult to handle more than one state therefore it affected the efficiency of the handling of my claims. If you don't know, you most of the time will put it off and work on something that you do know. It would create a competitive market for adjusters here in the state pushing for more experienced adjusters. It would also create more jobs and businesses.

Thanks for the feedback. I agree totally. If CompSource is privatized, where will the jobs go? Why isn't there an outcry from the economic development community about jobs and the instant premium increase predicted by NCCI? Texas wins with no chips in the game.

CompSource Privatization

noreply@blogger.com (Tom Leonard) — Thu, 03 Dec 2009 14:19:00 +0000

The Task Force on the Privatization of CompSource Oklahoma has published its final report. It is 303 pages long, so I just printed the first 42 pages of recommendations and comments from its members. Interesting reading to say the least.

As always I have my opinions, but I won't express them this time. . . . .okay, how about just one. . . ."oh, that we could all be as professional, responsive and cost-effective as CompSource."

Healthiest and Unhealthiest States

noreply@blogger.com (Tom Leonard) — Wed, 18 Nov 2009 14:51:00 +0000

Forbes.com posted a review of the results of the annual report of the nonprofit, United Health Foundation. Its survey covers 22 factors for determining the which are the healthiest states. Smoking, obesity, cancer, diabetes, childhood vaccination rate, infant mortality are all included in a composite ranking.

Oklahoma ranks 49th, just ahead of Mississippi. In 2008 we were 50th, just behind Mississippi. In 1990 we were 31st. Why the precipitous drop? Comorbidities are never mentioned in the discussions of loss-cost control. Isn't it time to take a deeper look at the cost problem?

Prior posting that mentions comorbidities: A Fool's Gambit.

Weekend Reading

noreply@blogger.com (Tom Leonard) — Thu, 12 Nov 2009 13:34:00 +0000

I just added OKPolicy.org to my Favorites Blogroll in the sidebar. Oklahoma Policy Institute began operations on January 28, 2008. It is a results-oriented, analytical organization "aimed at alleviating poverty, promoting fiscal responsibility, and expanding economic opportunity." You might want to read the article on the closing of the Mercury Marine plant in Stillwater. The company's tactics have angered the people of Oklahoma (the loser) and Wisconsin (the winner).

Nebraska Appleseed, a nonprofit, nonpartisan, public interest law project, has published its analysis of the Nebraska meat-packing industry, "The Speed Kills You." For some this may be all it takes to become a vegetarian. However, the report has some worthy ideas for improving the workers' compensation system beginning at page 49. One is to set every case for hearing within six months of filing the claim. In Oklahoma we could shorten this to two or three months, thus reducing lost worker time. Something to think about.

Let's Reduce Lost Time --- Medical Case Management

noreply@blogger.com (Tom Leonard) — Tue, 10 Nov 2009 14:38:00 +0000

As mentioned in my last posting, Oklahoma gets a low ranking compared to other states in the category of lost time. How can we improve our standing and get workers back to work quickly?

At the Court we think we are doing our part. Time to trial for nearly every judge is six to eight weeks, just the right amount of time for the attorneys to be prepared. So what else can we do?

I believe that much of the delay outside the courtroom can be ameliorated by judicial appointment of medical case managers.

What criteria should we use to decide when appointment is appropriate? Based on my experience dealing with cases ranging from the mundane to the tar-baby, certain events or circumstances are red flags that in the future will trigger consideration of case manager appointment. They include:

Claimant has missed work for more than thirty days
Injury to multiple body parts
Claimant has drug problems or is predisposed to them
History of missed appointments
Presence of comorbidities, such as obesity, diabetes, heart disease or heavy smoking, that potentially mask symptoms or impede recovery
Insurance carrier uses out of state adjusters or multiple PPOs

If my readers have suggestions to modify or expand this list, please contact me with your ideas at by posting a comment to this item or replying to your email notification.

A Fool's Gambit

noreply@blogger.com (Tom Leonard) — Tue, 03 Nov 2009 13:30:00 +0000

When it comes to workers' compensation reform, why or why can't we be more like Texas. . .or Kansas. . .or Missouri. . .or this time, Arkansas? Well, take your pick, because yet another state by state scorecard for workers' compensation has been published. Read the analysis and conclusions in Risk and Insurance, one of my favorite websites.

When ranked in the categories of Low Lost Time Frequency, Short Duration of Disability, High Benefit Generosity, Low Insurance Cost, the states received a letter grade and a composite ranking from 1 to 9. Oklahoma ranked 7 (C+).

But look, Arkansas ranks 3 (A-). Isn't a group working on a "modified" Arkansas plan for another round of workers' comp reform. Did anyone notice that Arkansas ranks near the bottom for injury benefits? Only seven states have lower benefit rankings. It sounds so high-minded to say we will scrap the old system for a new high performing one that moves us to the head of the class. But what are the hidden costs and tradeoffs? For Arkansas low benefits (C) equals low costs(A+). Sounds easy.

What about the number one state, Massachusetts? It has high benefits (A+) and low cost (A+). They have worked at improving their system for 15 years, starting under Republican governor William Weld --- not your usual 90-day wonder that we are always promised. They broadened the number of covered workers by eliminating uninsured independent contractors. In Oklahoma we try to make it easier to work without coverage. They tuned up their existing system by cracking down on the fraudulent underreporting of wages. Why is there more talk about that?

In the final analysis, modeling Oklahoma after another state is a fool's gambit, taking an uncalculated risk for an intangible gain. Let's face it. We may never get high marks in some of the categories. For example, duration of disability may be influenced by unreported factors, Oklahoma's consistently high rankings in obesity, heart disease and diabetes. This complicating factor may never change and thus dampens any attempt to reduce lost time. So why should we throw out the baby with the bath water, and fill the pan with another state's bath water?

Instead, we should be committed to continuously improving the existing system. Our mission should be to get workers back to work as expeditiously as possible. One of our goals to accomplish this mission should be to streamline the authorization process for medical treatment. We will measure of our success by steadily climbing up the rankings ladder, not taking one giant step to the top.

Our Aging Workforce

noreply@blogger.com (Tom Leonard) — Thu, 29 Oct 2009 12:39:00 +0000

Aging America: The Iceberg Dead Ahead by Tom Lynch, founder of LynchRyan, Inc., is a remarkable article on the potential impact of older workers on the workers' compensation system. Baby boomers are reaching retirement age but 50% will defer retirement for a variety of reasons: global economic meltdown, rising health costs, inadequate social security and Medicare systems.

Generally the higher cost of treating injuries to older workers is offset by their lower accident frequency. However, the data does not consider the growing proportion of aging workers. Lynch predicts losses will rise significantly due to Boomer injuries, driving up employer premiums.

Good read for the weekend.

LexisNexis Top 25 Blogs

noreply@blogger.com (Tom Leonard) — Tue, 27 Oct 2009 12:30:00 +0000

As the blogosphere of workers' compensation information expands, how do we find the better blogs? LexisNexis, publisher of Larson on Workers' Compensation, answers by annually honoring the Top 25 Blogs for Workers' Compensation and Workplace Issues.

I am delighted that Judge Tom Talks is one of the Top 25 in the category of Best Individual Bloggers. JTT is described as the "quintessential 'virtual watercooler.'" I'm not sure what that means, but I think it refers to stripping out the legalese and using a conversational style.

Our keynote speaker at the Stillwater Conference, Jon Coppelman, is again selected in the category of Best Ongoing Achievement for the "gold standard of workers' compensation blogs," Workers' Comp Insider. Congratulations, Jon!