US Laws, Codes, Statutes & Cases

OKLAHOMA STATUTES

TITLE 85

WORKERS COMPENSATION

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§851.  Title of act.

This act shall be known as the "Workers' Compensation Act."

Added by Laws 1915, c. 246, art. 1, § 1.  Amended by Laws 1977, c. 234, § 1, eff. July 1, 1978.

§85-1.1.  Inapplicability to certain occupational diseases - Burden of proof - Construction.

A.  The Workers' Compensation Act shall not apply to cases of occupational disease in which the last injurious exposure to the hazards of such disease occurred before June 6, 1953.

B.  The burden of proof, by a preponderance of the evidence, shall be on the party requesting benefits or relief pursuant to the provisions of the Workers' Compensation Act unless otherwise specifically provided for by law.

C.  The provisions of the Workers' Compensation Act shall be strictly construed by the Workers' Compensation Court and any appellate court reviewing a decision of the Workers' Compensation Court.

Added by Laws 1953, p. 430, § 10.  Amended by Laws 1997, c. 361, § 1, eff. Nov. 1, 1997; Laws 2005, 1st Ex.Sess., c. 1, § 7, eff. July 1, 2005.

§85-1.2.  Workers' Compensation Court - Creation - Membership - Terms - Qualifications - Salaries - Presiding judge - Rules - Court of record - Principal office - Hearings - Administrator - Contempt powers.

A.  There is hereby created the Workers' Compensation Court which shall consist of ten (10) judges.  Each judge of the Court shall be appointed to a designated numbered position on the Court.  The positions shall be numbered one through ten.  The initial terms of the judges by position number shall expire on the following dates:

Position 1 shall expire 7-1-84.

Position 2 shall expire 7-1-84.

Position 3 shall expire 7-1-84.

Position 4 shall expire 7-1-82.

Position 5 shall expire 7-1-82.

Position 6 shall expire 7-1-80.

Position 7 shall expire 7-1-80.

Position 8 shall expire 7-1-88.

Position 9 shall expire 7-1-88.

Position 10 shall expire 7-1-96 after being appointed under the provisions hereinafter set forth effective September 1, 1993.

Thereafter, each position shall be filled by a judge appointed to serve a six-year term.

Provided the judges serving unexpired terms on the State Industrial Court shall serve on the Workers' Compensation Court until their terms expire only as provided herein.  The judges of the State Industrial Court whose terms expire March 14, 1979, shall serve in Positions 6 and 7 until that date, and the judge whose term expires March 14, 1981, shall serve in Position 5 until that date.  Upon expiration of these terms, the Governor shall appoint judges to serve the remainder of the initial terms designated in this section.  When a vacancy on the Court occurs or is certain to occur or for initial appointments to the Court, the Judicial Nominating Commission shall choose and submit to the Governor and the Chief Justice of the Supreme Court the names of three persons, in addition to the name of the incumbent judge, if any, for each appointment, each of whom has previously notified the Commission in writing that he or she will serve as a judge if appointed.  The Governor shall appoint one of the nominees to fill the vacancy, but if the Governor fails to do so within sixty (60) days, the Chief Justice of the Supreme Court shall appoint one of the nominees, the appointment to be certified to the Secretary of State.

B.  A judge of the Court shall have been licensed to practice law in this state for a period of not less than five (5) years prior to appointment.  Each judge, before entering upon the duties of  office, shall take and subscribe to an oath of office and file the same with the Secretary of State.  Each judge shall continue to serve until his or her successor has been appointed and qualified.  A judge shall be eligible for reappointment, provided that the judge may be removed for cause by the Court on the Judiciary prior to the expiration of his or her term.

C.  Each judge shall receive a salary equal to that paid to a district judge of this state, and shall devote full time to his or her duties and shall not engage in the private practice of law during the term in office.

D.  The Governor shall appoint from among the judges of the Workers' Compensation Court a presiding judge of that Court who shall serve for a two-year term commencing with the initial appointment beginning January 1, 1987.  Any judge so appointed shall not serve more than two times in succession.  The presiding judge shall preside at all hearings held by the Court, preside at such meetings of the judges of the Court as may be necessary and perform such other supervisory duties as the needs of the Court may require.  The presiding judge may designate one of the other judges to act as presiding judge in his or her place whenever necessary during the disqualification, disability, or absence of the presiding judge. During the disqualification, disability, or absence of the presiding judge, the acting presiding judge shall exercise all of the powers of the presiding judge.

E.  The Court shall have the authority to adopt reasonable rules within its respective areas of responsibility including the rules of procedure for the Court en banc, after notice and public hearing, for effecting the purposes of the Workers' Compensation Act.  All of the judges of the Court shall be present at all meetings wherein rules are adopted or amended.  All rules, upon adoption, shall be submitted to the Supreme Court, which shall either approve or disapprove them within thirty (30) days.  All rules, upon approval by the Supreme Court, shall be published and be made available to the public and, if not inconsistent with the law, shall be binding in the administration of the Workers' Compensation Act.

F.  The Court is hereby designated and confirmed as a court of record, with respect to any matter within the limits of its jurisdiction, and within such limits the judges thereof shall possess the powers and prerogatives of the judges of the other courts of record of this state, including the power to punish for contempt those persons who disobey a subpoena, or refuse to be sworn or to answer as a witness, when lawfully ordered to do so.

G.  The principal office of the Court shall be situated in the City of Oklahoma City in quarters assigned by the Department of Central Services.  The Court may hold hearings in any city of this state.

H.  All county commissioners and presiding district judges of this state shall make quarters available for the conducting of hearings by a judge of the Court upon request by the Court.

I.  The judges of the Court shall determine the qualifications necessary for the job of Administrator.  Said qualifications shall be submitted to the Chief Justice of the Supreme Court for approval, disapproval or modification.

J.  Judges of the Workers' Compensation Court may punish for direct contempt pursuant to Sections 565, 565.1 and 566 of Title 21 of the Oklahoma Statutes.

Added by Laws 1977, c. 234, § 2, eff. July 1, 1978.  Amended by Laws 1981, c. 256, § 1, emerg. eff. June 25, 1981; Laws 1982, c. 271, § 1, operative July 1, 1982; Laws 1983, c. 304, § 167, eff. July 1, 1983; Laws 1985, c. 321, § 4, emerg. eff. July 29, 1985; Laws 1986, c. 222, § 2, eff. Nov. 1, 1986; Laws 1987, c. 223, § 1, operative July 1, 1987; Laws 1990, c. 283, § 1, eff. Sept. 1, 1990; Laws 1992, c. 294, § 1, eff. Sept. 1, 1992; Laws 1993, c. 349, § 1, eff. Sept. 1, 1993; Laws 2001, 1st Ex. Sess., c. 3, § 3, emerg. eff. Oct. 23, 2001.

§85-1.2A.  Salaries.

Notwithstanding other limits established by law, beginning January 1, 1998, the following judicial officers shall receive compensation for their services, payable monthly as follows:

A judge of the Workers' Compensation Court shall receive a salary as prescribed by Section 1.2 of Title 85 of the Oklahoma Statutes.

Added by Laws 1997, c. 384, § 8, eff. Jan. 1, 1998.

§85-1.3.  Workers' Compensation Court Administrator.

A.  The chief administrative officer of the Workers' Compensation Court shall be the Administrator, who shall be subject to the general supervision of the presiding judge of the Court, subject to the general administrative authority of the Chief Justice of the Supreme Court.

B.  The person serving as Administrator on the date of passage and approval of this act shall continue to serve as Administrator of the Court, provided said person is serving as Administrator on the effective date of this act.

C.  Except as provided in subsection B of this section, the Administrator shall be appointed by the Governor.

D.  The salary of the Administrator shall be ninety percent (90%) of the authorized salary of a judge of the Court.

E.  The Administrator shall serve a six-year term.  During the term, the Administrator may be removed from office only for cause, as provided by law for the removal of officers not subject to impeachment, pursuant to the provisions of Sections 1181 through 1197 of Title 22 of the Oklahoma Statutes.

F.  An Administrator who otherwise qualifies to serve as a judge of the Court shall not be eligible to serve as a judge of the Court for a period of one (1) year from the last date served as Administrator of the Court.

G.  In addition to  other duties set forth in Title 85 of the Oklahoma Statutes, the Administrator, subject to approval of the presiding judge, shall organize, direct and develop the administrative work of the Court, including the docketing, clerical, technical and financial work, establish hours of operation, and perform such other duties relating to matters within the purview of the Court as any judge of the Court may request.

H.  The Administrator shall employ other employees of the Court, within budgetary limitation, necessary to carry out the work and orders of the Court in an efficient and expedient manner.

Added by Laws 1986, c. 222, § 3, eff. Nov. 1, 1986.  Amended by Laws 2005, 1st Ex.Sess., c. 1, § 8, eff. July 1, 2005.

§852.1.  Employees excluded.

Commencing January 1, 1979, compensation provided for in the Workers' Compensation Act shall be payable to an employee for injuries arising out of and in the course of his employment.  The Workers' Compensation Act shall not apply to the following employees:

1.  Any person who is employed as a domestic servant or as a casual worker in and about a private home or household, which private home or household had a gross annual payroll in the preceding calendar year of less than Ten Thousand Dollars ($10,000.00) for such workers.

2.  Any person for whom an employer is liable under any Act of Congress for providing compensation to employees for injuries, disease or death arising out of and in the course of employment including, but not limited to, the Federal Employees' Compensation Act, the Federal Employers' Liability Act, the Longshoremen's and Harbor Workers' Act and the Jones Act, to the extent his employees are subject to such acts.

3.  Any person who is employed in agriculture or horticulture by an employer who had a gross annual payroll in the preceding calendar year of less than One Hundred Thousand Dollars ($100,000.00) cash wages for agricultural or horticultural workers.

4.  Any person who is a licensed real estate sales associate or broker, paid on a commission basis.

Laws 1977, c. 234, § 4, eff. July 1, 1978. Amended by Laws 1980, c. 340, § 2, emerg. eff. June 25, 1980.  

§852.2.  Agricultural employees not engaged in operation of motorized machines  Exemption.

Notwithstanding any other provision of law, agricultural employees who are not engaged in operation of motorized machines shall be exempt from coverage of workers' compensation.

Laws 1979, c. 210, § 5, emerg. eff. May 30, 1979.  

§852.3.  Persons providing services in medical care or social services programs  Exemption.

The Workers' Compensation Act shall not apply to any person who is providing services in a medical care or social services program, or who is a participant in a work or training program, administered by the Department of Institutions, Social and Rehabilitative Services, unless the Department is required by federal law or regulations to provide workers' compensation for such person.

§852.4.  Persons providing services in medical care or social services program  Exemption.

The Workers' Compensation Act shall not apply to any person who is providing services in a medical care or social services program, or who is a participant in a work or training program, administered by the Department of Human Services, unless the Department is required by federal law or regulations to provide workers' compensation for such person.  This section shall not be construed to include nursing homes.

Laws 1980, c. 327, § 8, emerg. eff. June 25, 1980.  

§852.5.  Persons providing services in medical care or social service program  Exemption.

The Workers' Compensation Act shall not apply to any person who is providing services in a medical care or social services program, or who is a participant in a work or training program, administered by the Department of Human Services, unless the Department is required by federal law or regulations to provide workers' compensation for such person.  This section shall not be construed to include nursing homes.

Added by Laws 1981, c. 33, § 10, emerg. eff. June 30, 1981.

§85-2.6.  Certain employers of family members excluded.

An employer with five or less total employees, all of whom are related by blood or marriage to the employer, will be exempt from the Workers' Compensation Act.

Added by Laws 1997, c. 361, § 2, eff. Nov. 1, 1997.

§85-2.7.  Youth sports league employers excluded.

An employer which is a youth sports league which qualifies for exemption from federal income taxation pursuant to 26 U.S.C., Section 501(a) because it is an organization described in 26 U.S.C., Section 501(c)(3) or (4) shall be exempt from the Workers' Compensation Act.

Added by Laws 1998, c. 353, § 2, eff. Nov. 1, 1998.

§85-2b.  Coverage for certain public employees.

A.  1.  All public entities of this state, their agencies and instrumentalities, authorities, and public trusts of which they are beneficiaries shall provide workers' compensation to their employees and elected officials engaged in either governmental or proprietary functions in accordance with this section.  Compensation or indemnification for compensation shall be paid out of the funds of the public entities.

2.  Except as otherwise provided, the state and all its institutions of higher education, departments, instrumentalities, institutions, and public trusts of which it or they are beneficiaries shall insure against liability for workers' compensation with the State Insurance Fund and shall not insure with any other insurance carrier unless:

a. the State Insurance Fund refuses to accept the risk when the application for insurance is made,

b. specifically authorized by law, or

c. the state entity can obtain workers' compensation insurance coverage at the same cost or at a lower cost from another insurance carrier licensed in this state.  Effective November 1, 1999, and for the next two fiscal years thereafter, not to exceed fifteen (15) state entities each fiscal year may obtain workers' compensation insurance coverage pursuant to this subparagraph from an insurer other than the State Insurance Fund.  Beginning with the third fiscal year thereafter, all state entities may obtain workers' compensation insurance coverage pursuant to this subparagraph.

3.  The state, all state institutions of higher education except comprehensive universities, and all state departments, instrumentalities, institutions, and public trusts of which the state is a beneficiary, may self-insure under rules promulgated by the State Insurance Fund.  Self-insurance administration may only be obtained through the State Insurance Fund.  The state, all state institutions of higher education except comprehensive universities, and all state departments, instrumentalities, institutions, and public trusts so electing to self-insure shall pay premiums set by the State Insurance Fund.  The State Insurance Fund shall collect premiums, pay claims and provide for excess insurance.  All dividends or profits accumulating from a self-insurance program shall be refunded to the participants on a formula devised by the State Insurance Fund.

B.  All counties, cities and towns, their instrumentalities and public trusts of which they are beneficiaries shall insure against their liability for workers' compensation with the State Insurance Fund or, through any combination of the following, may:

1.  Self-insure and make any appropriation of funds to cover their risk;

2.  Secure reinsurance or excess insurance over and above a self-insurance retention in any manner authorized by subsections B and C of Section 167 of Title 51 of the Oklahoma Statutes;

3.  Secure compensation for their employees in the manner provided in the Political Subdivision Tort Claims Act; subsection C of Section 167 of Title 51 of the Oklahoma Statutes; or

4.  Insure with other insurance carriers licensed in the State of Oklahoma.

C.  Boards of education, their instrumentalities and public trusts of which they are beneficiaries shall insure against their liability for workers' compensation with the State Insurance Fund or, through any combination of the following, may:

1.  Self-insure and make any appropriation of funds to cover their risk;

2.  Secure reinsurance or excess insurance over and above a self-insured retention in any manner authorized by subsection B of Section 168 of Title 51 of the Oklahoma Statutes; or

3.  Insure with other insurance carriers licensed in the State of Oklahoma.

D.  Comprehensive universities shall insure against their liability for workers' compensation with the State Insurance Fund; or if it can be demonstrated to the Board of Regents of the comprehensive university prior to the inception date of a workers' compensation policy that the policy will result in a lower cost than one with the State Insurance Fund or, through any combination of the following, may:

1.  Self-insure and make any appropriation of funds to cover their risk; or

2.  Insure with other insurance carriers licensed in the State of Oklahoma.

E.  In addition to any other provision of this section, city, county, city-county, and public trust hospitals may insure with other insurance carriers licensed in this state if it can be demonstrated to the governing body of the hospital prior to the inception date of a workers' compensation policy each year that the policy will result in a lower cost than one with the State Insurance Fund.

F.  For purposes of the Workers' Compensation Act, all contracts of employment for state, county, municipal, and state funded educational entities and public trusts will be considered to have been entered into in this state regardless of where the work is performed.

G.  Where a person who is employed by the state, a municipality, a county, or by any political subdivisions thereof, and who, while off-duty from the employment, is employed by a private employer, the private employer alone shall be liable for compensation under the Workers' Compensation Act for any injury or death of the person arising out of and in the course of employment which occurs during the hours of actual employment by the private employer.  The provisions of Section 11 of this title shall be applicable to private employers specified in this subsection.  The provisions of this subsection shall not relieve the state, a municipality or a county, or any political subdivision thereof, from providing disability benefits to which a person may be entitled pursuant to a pension or retirement plan.  The provisions of this subsection shall not preclude an employee or group of employees so employed from providing separate compensation coverage for off-duty employment by a private employer.

Added by Laws 1955, p. 486, § 1.  Amended by Laws 1977, c. 234, § 5, eff. July 1, 1978; Laws 1980, c. 340, § 1, emerg. eff. June 25, 1980; Laws 1981, c. 105, § 1, eff. July 1, 1981; Laws 1982, c. 110, § 1; Laws 1982, c. 271, § 2, operative July 1, 1982; Laws 1986, c. 222, § 4, eff. Nov. 1, 1986; Laws 1995, c. 328, § 14, eff. July 1, 1995; Laws 1996, c. 3, § 24, emerg. eff. March 6, 1996; Laws 1999, c. 420, § 1, eff. Nov. 1, 1999; Laws 2000, c. 248, § 7, eff. Sept. 1, 2000.

NOTE:  Laws 1995, c. 326, § 2 repealed by Laws 1996, c. 3, § 25, emerg. eff. March 6, 1996.

§85-2c.  Repealed by Laws 1985, c. 312, § 55, emerg. eff. July 25, 1985.

§85-2e.  Temporary total disability benefits - State employees.

The state and all its institutions of higher education, departments, instrumentalities, institutions and public trusts of which they are beneficiaries shall first provide temporary total disability benefits to employees injured on the job under their policy of workers' compensation insurance.  At the option of the employee, temporary total disability benefits shall then be supplemented by any sick or annual leave available to the injured employee to the extent that the injured employee shall receive full wages during the employee's temporary absence from work; provided, the provisions of this section shall not preclude an employee from receiving any benefits to which the employee is entitled under the State Employees Disability Program Act, Section 1331 et seq. of Title 74 of the Oklahoma Statutes.

Added by Laws 1990, c. 283, § 2, eff. Sept. 1, 1990.

§85-3.  Definitions.

As used in the Workers' Compensation Act:

1.  "Administrator" means the Administrator of workers' compensation as provided for in the Workers' Compensation Act;

2.  "Amount in dispute" means the dollar value of any permanent disability award granted to the employee by the Court for a disability claim which is greater than the dollar amount offered by the employer to the employee for such disability claim if the employer admits compensability within twenty (20) days of the filing of the Employee's First Notice of Accidental Injury and Claim for Compensation, has not disputed medical treatment, and has made a written settlement offer within fifteen (15) days of the employee reaching maximum medical improvement;

3.  "Case management" means the ongoing coordination, by a case manager, of health care services provided to an injured or disabled worker, including, but not limited to:

a. systematically monitoring the treatment rendered and the medical progress of the injured or disabled worker,

b. ensuring that any treatment plan follows all appropriate treatment protocols, utilization controls and practice parameters,

c. assessing whether alternative health care services are appropriate and delivered in a cost-effective manner based upon acceptable medical standards, and

d. ensuring that the injured or disabled worker is following the prescribed health care plan;

4.  "Case manager" means a person who:

a. is a registered nurse with a current, active unencumbered license from the Oklahoma Board of Nursing, or

b. possesses one or more of the following certifications which indicate the individual has a minimum number of years of case management experience, has passed a national competency test and regularly obtains continuing education hours to maintain certification:

(1) Certified Disability Management Specialist (CDMS),

(2) Certified Case Manager (CCM),

(3) Certified Rehabilitation Registered Nurse (CRRN),

(4) Case Manager - Certified (CMC),

(5) Certified Occupational Health Nurse (COHN), or

(6) Certified Occupational Health Nurse Specialist (COHN-S);

5.  "Claimant" means a person who claims benefits for an injury pursuant to the provisions of the Workers' Compensation Act;

6.  "Court" means the Workers' Compensation Court;

7.  "Cumulative trauma" means a compensable injury, the major cause of which results from employment activities which are repetitive in nature and engaged in over a period of time and which is supported by objective medical evidence as defined in this section;

8.  "Employer", except when otherwise expressly stated, means a person, partnership, association, limited liability company, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association, corporation, or limited liability company, departments, instrumentalities and institutions of this state and divisions thereof, counties and divisions thereof, public trusts, boards of education and incorporated cities or towns and divisions thereof, employing a person included within the term "employee" as herein defined;

9.  "Employee" means any person engaged in the employment of any person, firm, limited liability company or corporation covered by the terms of the Workers' Compensation Act, and shall include workers associating themselves together under an agreement for the performance of a particular piece of work, in which event such persons so associating themselves together shall be deemed employees of the person having the work executed; provided, that if such associated workers shall employ a worker in the execution of such contract, then as to such employed worker, both the associated employees and the principal employer shall at once become subject to the provisions of the Workers' Compensation Act relating to independent contractors.  Sole proprietors, members of a partnership, members of a limited liability company who own at least ten percent (10%) of the capital of the limited liability company or any stockholder-employees of a corporation who own ten percent (10%) or more stock in the corporation are specifically excluded from the foregoing definition of "employee", and shall not be deemed to be employees as respects the benefits of the Workers' Compensation Act.  Provided, a sole proprietor, member of a partnership, member of a limited liability company who owns at least ten percent (10%) of the capital of the limited liability company or any stockholder-employee of a corporation who owns ten percent (10%) or more stock in the corporation who does not so elect to be covered by a policy of insurance covering benefits under the Workers' Compensation Act, when acting as a subcontractor, shall not be eligible to be covered under the prime contractor's policy of workers' compensation insurance; however, nothing herein shall relieve the entities enumerated from providing workers' compensation insurance coverage for their employees.  Sole proprietors, members of a partnership, members of a limited liability company who own at least ten percent (10%) of the capital of the limited liability company or any stockholder-employees of a corporation who own ten percent (10%) or more stock in the corporation may elect to include the sole proprietors, any or all of the partnership members, any or all of the limited liability company members or any or all stockholder-employees as employees, if otherwise qualified, by endorsement to the policy specifically including them under any policy of insurance covering benefits under the Workers' Compensation Act.  When so included, the sole proprietors, members of a partnership, members of a limited liability company or any or all stockholder-employees shall be deemed to be employees as respects the benefits of the Workers' Compensation Act.  "Employee" shall also include any person who is employed by the departments, instrumentalities and institutions of this state and divisions thereof, counties and divisions thereof, public trusts, boards of education and incorporated cities or towns and divisions thereof.  "Employee" shall also include a member of the Oklahoma National Guard while in the performance of duties only while in response to state orders and any authorized voluntary or uncompensated worker, rendering services as a firefighter, peace officer or emergency management worker.  Provided, "employee" shall not include any other person providing or performing voluntary service who receives no wages for the services other than meals, drug or alcohol rehabilitative therapy, transportation, lodging or reimbursement for incidental expenses.  "Employee" shall also include a participant in a sheltered workshop program which is certified by the United States Department of Labor.  "Employee" shall not include a person, commonly referred to as an owner-operator, who owns or leases a truck-tractor or truck for hire, if the owner-operator actually operates the truck-tractor or truck and if the person contracting with the owner-operator is not the lessor of the truck-tractor or truck.  Provided, however, an owner-operator shall not be precluded from workers' compensation coverage under the Workers' Compensation Act if the owner-operator elects to participate as a sole proprietor.  "Employee" shall not include a person referred to as a drive-away owner-operator who privately owns and utilizes a tow vehicle in drive-away operations and operates independently for hire, if the drive-away owner-operator actually utilizes the tow vehicle and if the person contracting with the drive-away owner-operator is not the lessor of the tow vehicle.  Provided, however, a drive-away owner-operator shall not be precluded from workers' compensation coverage under the Workers' Compensation Act if the drive-away owner-operator elects to participate as a sole proprietor;

10.  "Drive-away operations" include every person engaged in the business of transporting and delivering new or used vehicles by driving, either singly or by towbar, saddle mount or full mount method, or any combination thereof, with or without towing a privately owned vehicle;

11.  "Employment" includes work or labor in a trade, business, occupation or activity carried on by an employer or any authorized voluntary or uncompensated worker rendering services as a firefighter, peace officer or emergency management worker;

12.  "Compensation" means the money allowance payable to an employee as provided for in the Workers' Compensation Act;

13. a. "Compensable injury" means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness.  An injury, other than cumulative trauma, is compensable only if it is caused by a specific incident and is identifiable by time, place and occurrence unless it is otherwise defined as compensable in this title.  A compensable injury must be established by objective medical evidence, as defined in this section.

b. "Compensable injury" includes heart-related or vascular injury, illness or death only if an accident or the claimant's employment is the major cause of the heart-related or vascular injury.  Such injury shall be compensable only if it is demonstrated that the exertion necessary to produce the harm was extraordinary and unusual in comparison to other occupations and that the occupation was the major cause of the harm.  The injury must be established by objective medical evidence, as defined in this section.

c. "Injury" or "personal injury" shall not include mental injury that is unaccompanied by physical injury, except in the case of rape which arises out of and in the course of employment.

d. "Compensable injury" shall not include the ordinary, gradual deterioration or progressive degeneration caused by the aging process, unless the employment is a major cause of the deterioration or degeneration and is supported by objective medical evidence, as defined in this section; nor shall it include injury incurred while engaging in, performing or as the result of engaging in or performing any recreational or social activities;

14.  "Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer;

15.  "Insurance carrier" shall include stock corporations, reciprocal or interinsurance associations, or mutual associations with which employers have insured, and employers permitted to pay compensation, directly under the provisions of paragraph 4 of subsection A of Section 61 of this title;

16.  "Major cause" means the predominate cause of the resulting injury or illness;

17.  "Objective medical evidence" means evidence which meets the criteria of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto;

18.  "Occupational disease" means only that disease or illness which is due to causes and conditions characteristic of or peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease.  An occupational disease arises out of the employment only if the employment was the major cause of the resulting occupational disease and such is supported by objective medical evidence, as defined in this section;

19.  "Permanent impairment" means any anatomical abnormality after maximum medical improvement has been achieved, which abnormality or loss the physician considers to be capable of being evaluated at the time the rating is made.  Except as otherwise provided herein, any examining physician shall only evaluate impairment in accordance with the latest publication of the American Medical Association's "Guides to the Evaluation of Permanent Impairment" in effect at the time of the injury.  The Physician Advisory Committee may, pursuant to Section 201.1 of this title, recommend the adoption of a method or system to evaluate permanent impairment that shall be used in place of or in combination with the American Medical Association's "Guides to the Evaluation of Permanent Impairment".  Such recommendation shall be made to the Administrator of the Workers' Compensation Court who may adopt the recommendation in part or in whole.  The adopted method or system shall be submitted by the Administrator to the Governor, the Speaker of the House of Representatives and the President Pro Tempore of the Senate within the first ten (10) legislative days of a regular session of the Legislature.  Such method or system to evaluate permanent impairment that shall be used in place of or in combination with the American Medical Association's "Guides to the Evaluation of Permanent Impairment" shall be subject to disapproval in whole or in part by joint or concurrent resolution of the Legislature during the legislative session in which submitted.  Such method or system shall be operative one hundred twenty (120) days after the last day of the month in which the Administrator submits the adopted method or system to the Legislature if the Legislature takes no action or one hundred twenty (120) days after the last day of the month in which the Legislature disapproves it in part.  If adopted, permanent impairment shall be evaluated only in accordance with the latest version of the alternative method or system in effect at the time of injury.  Except as otherwise provided in Section 11 of this title, all evaluations shall include an apportionment of injury causation.  However, revisions to the guides made by the American Medical Association which are published after January 1, 1989, and before January 1, 1995, shall be operative one hundred twenty (120) days after the last day of the month of publication.  Revisions to the guides made by the American Medical Association which are published after December 31, 1994, may be adopted in whole or in part by the Administrator following recommendation by the Physician Advisory Committee.  Revisions adopted by the Administrator shall be submitted by the Administrator to the Governor, the Speaker of the House of Representatives and the President Pro Tempore of the Senate within the first ten (10) legislative days of a regular session of the Legislature.  Such revisions shall be subject to disapproval in whole or in part by joint or concurrent resolution of the Legislature during the legislative session in which submitted.  Revisions shall be operative one hundred twenty (120) days after the last day of the month in which the Administrator submits the revisions to the Governor and the Legislature if the Legislature takes no action or one hundred twenty (120) days after the last day of the month in which the Legislature disapproves them in part.  The examining physician shall not follow the guides based on race or ethnic origin.  The examining physician shall not deviate from said guides or any alternative thereto except as may be specifically provided for in the guides or modifications to the guides or except as may be specifically provided for in any alternative or modifications thereto, adopted by the Administrator of the Workers' Compensation Court as provided for in Section 201.1 of this title.  These officially adopted guides or modifications thereto or alternative system or method of evaluating permanent impairment or modifications thereto shall be the exclusive basis for testimony and conclusions with regard to permanent impairment with the exception of paragraph 3 of Section 22 of this title, relating to scheduled member injury or loss; and impairment, including pain or loss of strength, may be awarded with respect to those injuries or areas of the body not specifically covered by said guides or alternative to said guides.  All evaluations of permanent impairment must be supported by objective medical evidence;

20.  "Permanent total disability" means incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation; loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability;

21.  "Permanent partial disability" means permanent disability which is less than total and shall be equal to or the same as permanent impairment;

22.  "Maximum medical improvement" means that no further material improvement would reasonably be expected from medical treatment or the passage of time;

23.  "Independent medical examiner" means a licensed physician authorized to serve as a medical examiner pursuant to Section 17 of this title;

24.  "Certified workplace medical plan" means an organization of health care providers or any other entity, certified by the State Commissioner of Health pursuant to Section 14.3 of this title, that is authorized to enter into a contractual agreement with a self-insured employer, group self-insurance association plan, an employer's workers' compensation insurance carrier or an insured, which shall include any member of an approved group self-insured association, policyholder or public entity, regardless of whether such entity is insured by CompSource Oklahoma, to provide medical care under the Workers' Compensation Act.  Certified plans shall only include such plans which provide medical services and payment for services on a fee-for-service basis to medical providers and shall not include other plans which contract in some other manner, such as capitated or pre-paid plans; and

25.  "Treating physician" means the licensed physician selected as provided in Section 14 of this title.

Added by Laws 1915, c. 246, art. 1, § 3.  Amended by Laws 1919, c. 14, p. 15, §§ 2, 3; Laws 1923, c. 61, p. 119, § 2; Laws 1941, p. 477, § 2; Laws 1945, pp. 414, 415, §§ 1, 2, emerg. eff. May 7, 1945; Laws 1953, p. 427, §§ 1, 2, emerg. eff. June 6, 1953; Laws 1957, p. 571, § 1, emerg. eff. May 15, 1957; Laws 1959, p. 397, § 1, emerg. eff. July 15, 1959; Laws 1961, p. 638, § 2, emerg. eff. April 26, 1961; Laws 1977, c. 234, § 6, eff. July 1, 1978; Laws 1985, c. 266, § 1, eff. Nov. 1, 1985; Laws 1986, c. 222, § 5, eff. Nov. 1, 1986; Laws 1988, c. 2, § 1, emerg. eff. Feb. 3, 1988; Laws 1990, c. 283, § 3, eff. Sept. 1, 1990; Laws 1992, c. 294, § 2, eff. Sept. 1, 1992; Laws 1993, c. 366, § 51, eff. Sept. 1, 1993; Laws 1994, c. 2, § 33, emerg. eff. March 2, 1994; Laws 1994, 2nd Ex. Sess., c. 1, § 17, emerg. eff. Nov. 4, 1994; Laws 1996, c. 105, § 1, eff. Nov. 1, 1996; Laws 1996, c. 363, § 1, eff. Nov. 1, 1996; Laws 1997, c. 188, § 1, eff. Nov. 1, 1997; Laws 1997, c. 361, § 3, eff. Nov. 1, 1997; Laws 2001, 1st Ex. Sess., c. 3, § 4, emerg. eff. Oct. 23, 2001; Laws 2003, c. 329, § 60, emerg. eff. May 29, 2003; Laws 2005, 1st Ex.Sess., c. 1, § 9, eff. July 1, 2005.

NOTE:  Laws 1993, c. 349, § 2 repealed by Laws 1994, c. 2, § 34, emerg. eff. March 2, 1994.

§853.1.  Definitions applicable to death benefits.

A.  In respect to death benefits under the Workers' Compensation Act, the following definitions shall apply:

(1) "Actually dependent" means:

a. a surving spouse as defined in this section;

b. a child as defined in this section; or

c. any other person dependent in fact upon the employee and refers only to a person who receives onehalf (1/2) or more of his support from the employee;

(2) "Surviving spouse" means only the employee's spouse living with or actually dependent upon the employee at the time of his injury or death, or living apart for justifiable cause or by reason of desertion by the employee;

(3) "Child" means a natural or adopted son or daughter of the employee under eighteen (18) years of age; or a natural or adopted son or deaughter of an employee eighteen (18) years of age or over and physically or mentally incapable of selfsupport; or any natural or adopted son or daughter of an employee eighteen (18) years of age or over who is actually dependent; or any natural or adopted son or daughter of an employee between eighteen (18) and twentythree (23) years of age who is enrolled as a fulltime student in any accredited educational institution.  The term "child" includes a posthumous child, a child legally adopted or one for whom adoption proceedings are pending at the time of death, an actually dependent stepchild or an actually dependent acknowledged child born out of wedlock;

(4) "Grandchild" means a child of a child, as herein defined;

(5) "Brother" and "sister" means a sibling of the employee under eighteen (18) years of age, eighteen (18) years of age or over and physically or mentally incapable of selfsupport, eighteen (18) years of age or over and actually dependent and brothers and sisters by adoption.  Married brothers or married sisters shall not be included except as provided in paragraph (1) of this section; and

(6) "Parent" means a mother or father, a stepparent, a parent by adoption and a parentinlaw, if actually dependent in each case except as provided in paragraph (1) of this section.

B.  All questions of relationship and dependency shall be determined as of the time of injury for purposes of income benefits for injury, and as of the time of death for purposes of income benefits for death.

§853.4.  Commencement of claims  Procedure.

A.  1.  All claims for any compensation or benefits under the Workers' Compensation Act shall be commenced with the filing of a notice of injury with the Administrator.  All claims filed for workers' compensation benefits shall contain a statement that all matters stated therein are true and accurate, and shall be signed by the claimant and the claimant's agent, if any.  Any person who signs this statement or causes another to sign this statement knowing the statement to be false shall be guilty of perjury.  An individual who signs on behalf of a claimant may be presumed to have the authorization of the claimant and to be acting at the claimant's direction.  All answers and defenses to claims or other documents filed on behalf of a respondent or the respondent's insurer in a workers' compensation case shall contain a statement that all matters stated therein are true and accurate, and shall be signed by the respondent, the insurer, or their respective agents, if any.  Any person who signs such a statement or causes another to sign such a statement, knowing the statement to be false, shall be guilty of perjury.  An individual who signs on behalf of a respondent, its insurer, or its agent may be presumed to have the authorization of the respondent, its insurer and agent to be acting at their direction.

2.  All matters pertaining to such claims shall be presented to the Administrator until such time as the Administrator is notified in writing by a party that there is a controverted issue that cannot be resolved by the parties or that the parties have received an agreed final order from the Court.  The Administrator shall, within seven (7) days of the receipt of such notification, set the matter for hearing at the earliest available time to be heard by the Court in the appropriate judicial district as provided in Section 3.5 of this title.  The Administrator shall assign a member of the Court to hear a docket in each judicial district of the state at least once each calendar month when there has been a request for a hearing in the judicial district.  The Administrator shall assign judges to the state judicial districts on a rotating basis for the purpose of holding prehearing conferences and settlement conferences and hearing cases.  At the request of either party, a prehearing conference shall be held before the member of the Court assigned to the case within fortyfive (45) days of the filing of a claimant's request for a hearing.  The purpose of the prehearing conference shall be to mediate and encourage settlement of the case or determine issues in dispute.

3.  The Court, upon its own motion or at the request of any of the parties, may set a settlement conference at any practicable time.  The conference shall be held before any Workers' Compensation Court Judge or an Active Retired Judge sitting by special designation for that purpose, other than the judge assigned to the case.  The purpose of the settlement conference is to permit an informal discussion among the parties, the attorneys, and the settlement judge on every aspect of the case bearing on its settlement value in an effort to resolve the matter before trial.  The settlement judge shall not have any communications regarding the case or the settlement conference with the assigned trial judge other than to advise the trial judge that a settlement was or was not reached.  The setting of a settlement conference by the Court, or a request for a settlement conference by any party, shall not preclude any party from filing a Motion to Set for Trial.

4.  The Court shall be vested with jurisdiction over all claims filed pursuant to the Workers' Compensation Act.  The Court shall determine the lawfulness of any claim for compensation under the Workers' Compensation Act based on the weight of evidence; provided, however, any claim, and subsequent disability, that has as its source a physical condition resulting from incremental damage or injury or a gradual deterioration of physical health, which is caused by a condition arising out of and in the course of employment, must be proven by a preponderance of the evidence presented to the Court.

B.  All claims so filed shall be heard by the judge sitting without a jury.  All petitions for final orders or awards filed pursuant to the provisions of Section 84 of this title must be approved by the Court having jurisdiction before a final order or award may be entered.  All matters relating to a claim for benefits under the Workers' Compensation Act shall be filed with the Administrator.

Added by Laws 1977, c. 234, § 8, eff. July 1, 1978.  Amended by Laws 1986, c. 222, § 6, eff. Nov. 1, 1986; Laws 1993, c. 349, § 3, eff. Sept. 1, 1993; Laws 2001, 1st Ex. Sess., c. 3, § 5, emerg. eff. Oct. 23, 2001.

§85-3.5.  Venue - Videoconference.

A.  Upon the agreement of the parties, the venue shall be the judicial district of the county of the legal residence of the claimant at the time the injury was sustained, the judicial district of the county where the injury occurred or the judicial district of the county of the principal place of business of the employer.

In the event that the claimant is not a legal resident of the State of Oklahoma, the necessary hearings shall be held in the judicial district of the county of the principal place of business of the employer If the parties do not agree to venue as provided for in this section, hearings may be held in any jurisdiction if the Judge determines that good cause has been shown.

B.  Upon agreement of the parties, the Court may hold hearings related to a claim by videoconference.

Laws 1977, c. 234, § 9, eff. July 1, 1978; Laws 2005, c. 1, § 10, eff. July 1, 2005.

§85-3.6.  Appellate procedures.

A.  All the evidence pertaining to each case, except upon agreed orders, shall, insofar as may be possible, be heard by the judge initially assigned to the case.  Upon the completion of such hearing or hearings, the judge hearing the cause shall make such order, decision or award as is proper, just and equitable in the matter.  Either party feeling himself aggrieved by such order, decision or award shall, within ten (10) days, have the right to take an appeal from the order, decision or award of the Judge to the Workers' Compensation Court sitting en banc.  Such appeal shall be allowed as a matter of right to either party upon filing with the Administrator a notice of such appeal.  Such Court en banc shall consist of three (3) Judges of the Court, none of whom shall have presided over any of the previous hearings on the claim.  The Court en banc may reverse or modify the decision only if it determines that such decision was against the clear weight of the evidence or contrary to law.  Upon completion of the appeal, the members of the Court sitting en banc shall issue such order, decision or award as is proper, just and equitable.  Only those members participating in the hearing on appeal shall participate in the making of the order, decision or award.  All orders, decisions or awards shall be approved by a majority of the members of the Court sitting en banc.  Provided, there may be more than one Court en banc sitting at the same time for purposes of hearing the appeals provided for herein.  Appeals shall be allowed on a question of law or a question of fact, or a mixed question of law and fact, and shall be determined on the record made before the Judge.  Provided, when the order of the Judge of the Court making an award to a claimant is appealed by the employer or the insurance carrier, interest shall be allowed on the accrued amounts of the award due from the date the award was filed, if the award is not modified or vacated on appeal.

B.  In each case filed in the Court en banc, and at the time of filing same, the appellant shall deposit with the clerk as costs One Hundred Twenty-five Dollars ($125.00) of which no rebate of any part thereof shall be made.  The fee collected under this subsection shall be deposited as follows:  One Hundred Dollars ($100.00) to the credit of the Administrator of Workers' Compensation Revolving Fund created by Section 95 of this title for the costs of administering the Workers' Compensation Act; and Twenty-five Dollars ($25.00) to the credit of the Administrator of Workers' Compensation Revolving Fund for purposes of implementing the provisions of this act, including strengthening and providing additional funding for the Attorney General's Workers' Compensation Fraud Unit, providing counseling services pursuant to the workers' compensation counselor program and safety in the workplace.

C.  The order, decision or award of the Court shall be final and conclusive upon all questions within its jurisdiction between the parties, unless, within twenty (20) days after a copy of such order, decision or award has been sent by the Administrator to the parties affected, an action is commenced in the Supreme Court of the state, to review such order, decision or award.  Any order, decision or award made by a judge of the Court shall be considered as final under the provisions of this section unless appealed to the Workers' Compensation Court sitting en banc as provided for in subsection A of this section.  The order, decision or award of a judge of the Court shall be final and conclusive upon all questions within his jurisdiction between the parties unless appealed directly to the Supreme Court or to the Workers' Compensation Court sitting en banc as hereinbefore provided.  Any party litigant desiring to appeal directly from such order, decision or award to the Supreme Court, shall, within twenty (20) days after a copy of the order, decision or award has been sent by the Administrator to the parties affected, commence an action in the Supreme Court of the state to review such order, decision or award.  The Supreme Court shall have original jurisdiction of such action, and shall prescribe rules for the commencement and trial of the same.  Such action shall be commenced by filing with the Clerk of the Supreme Court a certified copy of the order, decision or award of the Workers' Compensation Court sitting en banc or the judge attached to the petition by the complaint wherein the complainant or petitioner shall make his assignments or specifications as to wherein said order, decision or award is erroneous or illegal.  Provided, however, no proceeding to reverse, vacate or modify any order, decision or award of the Workers' Compensation Court sitting en banc or judge of the Court wherein compensation has been awarded an injured employee shall be entertained by the Supreme Court unless the Administrator shall take a written undertaking to the claimant executed on the part of the respondent or insurance carrier, or both, with one or more sureties to be approved by the Administrator, to the effect that the appellant will pay the amount of the award rendered therein, together with interest thereon from the date of the award by the judge of the Court and all costs of the proceeding, or on the further order of the Workers' Compensation Court sitting en banc or judge of the Court after the appeal has been decided by the Supreme Court, except that municipalities and other political subdivisions of the State of Oklahoma are exempt from making such written undertakings.  Before the Clerk of the Supreme Court shall accept the action for filing, a certificate from the Administrator shall be required, showing that this provision has been complied with.  Said proceedings shall be heard in a summary manner and shall have precedence over all other civil cases in the Supreme Court, except preferred Corporation Commission appeals.  The Supreme Court shall require the appealing party to file within forty-five (45) days from the date of the filing of an appeal or an order appealed from, a transcript of the record of the proceedings before the Workers' Compensation Court, or upon application and for good cause shown, the Supreme Court may extend the time for filing said transcript of the record for a period of time not to exceed ninety (90) days from said date, and such action shall be subject to the law and practice applicable to other civil actions cognizable in said Supreme Court.  The Court whose action was appealed shall enter any order directed by the Supreme Court under the final determination.

D.  When the only controverted issue in a death claim is the determination of proper beneficiaries entitled to receive death benefits, and the parties-beneficiary appeal the decision of the Court, the employer or insurance carrier may pay the proceeds, as they accrue, to the Administrator.  The Administrator shall hold the proceeds in trust in an interest-bearing account during the appeal period and shall distribute the proceeds and interest to the proper beneficiaries upon written direction of the Court.  The employer or insurance carrier shall not be taxed interest or cost on the order of the death claim if payments have been made to the Administrator as they accrue.

E.  An action to reopen any case under the provisions of the Workers' Compensation Act shall be assigned in the same manner as original assignments made hereunder.

F.  Benefits for an injury shall be determined by the law in effect at the time of injury; benefits for death shall be determined by the law in effect at the time of death.

G.  For purposes of this section, interest shall be computed pursuant to Section 727 of Title 12 of the Oklahoma Statutes.

Added by Laws 1977, c. 234, § 10, eff. July 1, 1978.  Amended by Laws 1986, c. 222, § 7, eff. Nov. 1, 1986; Laws 1986, c. 302, § 3, operative July 1, 1986; Laws 1993, c. 349, § 4, eff. Sept. 1, 1993; Laws 1994, 2nd Ex. Sess., c. 1, § 18, emerg. eff. Nov. 4, 1994; Laws 1997, c. 262, § 1, emerg. eff. May 27, 1997.

§85-3.7.  Administrator - Powers and duties.

The Administrator shall have the following powers and duties:

1.  To hear and approve settlements pursuant to direction by the judges of the Court;

2.  To review and approve "own-risk" applications and group Self-insurance associations applications;

3.  To monitor "own-risk", self-insurer and group self-insurance programs in accordance with the rules of the Court;

4.  To establish a toll free telephone number in order to provide information and answer questions about the Court;

5.  To hear and determine claims concerning disputed medical bills;

6.  To promulgate necessary rules subject to the approval of the presiding judge;

7.  Such other duties and responsibilities authorized by law or as the judges of the Court may prescribe;

8.  To adopt rules which require every insurance company, the State Insurance Fund and every self-insurer authorized to transact workers' compensation insurance in this state to report to the Administrator its statistical experience and its experience regarding the utilization of independent medical examiners in permanent disability cases during the period from July 1, 1995, to July 1, 1997.  The information regarding utilization of independent medical examiners shall include, but not be limited to, the number of independent medical examiner appointments, the parties requesting the independent medical examiner, the doctors participating and the number of evaluations done by each, a summary of awards and settlements, medical costs, and duration of temporary total disability.  The Administrator shall compile the information collected and present a report of his findings to the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Governor, the Advisory Council on Workers' Compensation and the Physician Advisory Committee; and

9.  To adopt rules which impose an administrative penalty of One Hundred Dollars ($100.00) for each day an insurance company or self-insurer fails to provide the information required pursuant to paragraph 8 of this section.

Added by Laws 1977, c. 234, § 11, eff. July 1, 1978.  Amended by Laws 1978, c. 249, § 3, emerg. eff. April 29, 1978; Laws 1982, c. 271, § 3, operative July 1, 1982; Laws 1986, c. 222, § 8, eff. Nov. 1, 1986; Laws 1990, c. 283, § 4, eff. Sept. 1, 1990; Laws 1994, 2nd Ex. Sess., c. 1, § 19, emerg. eff. Nov. 4, 1994.

§853.8.  Employees of Administrator prohibited from testifying in certain court proceedings - Solicitation, recommendation or reference of attorney or physician prohibited - Certain ex parte communications by judge prohibited.

A.  No employee of the Administrator shall be competent to testify on any matter before a court concerning any information he has received through the performance of his duties under the provisions of the Workers' Compensation Act.

B.  The Administrator and his employees shall not solicit employment for any attorney or physician nor shall they recommend or refer any claimant or employer to an attorney or physician.  If the Administrator or any of his employees makes such a solicitation, recommendation or reference, that person, upon conviction, shall be guilty of a misdemeanor punishable, for each offense, by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment not to exceed one (1) year, or by both such fine and imprisonment.  The Administrator shall immediately terminate the employment of any such employee who is guilty of such solicitation, recommendation or reference.  An Administrator guilty of such solicitation, recommendation or reference shall be subject to removal from office.

C.  No judge of the Workers' Compensation Court shall engage in any ex parte communication with any party to an action pending before the Court or with any medical provider regarding the merits of a specific matter pending before the judge for resolution.  Any violation of this provision shall subject the judge to disqualification from the action or matter upon presentation of an application for disqualification.

Laws 1977, c. 234, § 12, eff. July 1, 1978; Laws 1993, c. 349, § 5, eff. Sept. 1, 1993.

§85-3.9.  Workers' compensation counselors - Duties.

A.  The Administrator shall establish a workers' compensation counselor program to assist injured workers, employers and persons claiming death benefits in obtaining benefits under the Workers' Compensation Act.

B.  Workers' compensation counselors shall provide information to injured workers; investigate complaints; communicate with employers, insurance carriers, self-insurers, and health care providers; provide informational seminars and workshops on workers' compensation for medical providers, insurance adjustors, and employee and employer groups; and develop informational materials for employees, employers and medical providers.  A workers' compensation counselor shall otherwise assist unrepresented claimants, employers, and other parties to enable them to protect their rights in the workers' compensation system.

C.  The Administrator shall mail a notice to a claimant within thirty (30) days of the filing of an Employee's First Notice of Accidental Injury and Claim for Compensation.  The notice shall advise the claimant of the availability of the services of workers' compensation counselors and mediation to assist the claimant in resolution of the claimant's claim, how to contact the counselor program and all such additional information as the Administrator may determine necessary.

Added by Laws 1990, c. 283, § 5, eff. Sept. 1, 1990.  Amended by Laws 1994, 2nd Ex. Sess., c. 1, § 20, emerg. eff. Nov. 4, 1994; Laws 2005, 1st Ex.Sess., c. 1, § 11, eff. July 1, 2005.

§85-3.10.  Voluntary mediation - Mediation by court order - Certified mediator.

A.  Mediation shall be available to any party to a claim arising pursuant to the provisions of the Workers' Compensation Act, subject to the limitation provisions of Section 14.3 of this title and except for claims against the Multiple Injury Trust Fund.

B.  Unless ordered by the Workers' Compensation Court, mediation shall be voluntary, and shall not be conducted without the consent of both parties.

1.  Mediation is not a prerequisite to the commencement of a claim for benefits, pursuant to the provisions of the Workers' Compensation Act.

2.  A request for mediation or consent to mediate does not invoke the jurisdiction of the Court.

C.  The Court may order mediation upon request of either party or in any case in which the Court believes that mediation may be beneficial to a prompt and efficient resolution of the claim.

D.  1.  A request for mediation shall be made in writing to the Administrator.

2.  The party requesting mediation shall inform the Administrator of the issues in dispute, and the name, address, and telephone number of the opposing party or insurance company, if known.  If the claim involves a certified workplace medical plan, the requesting party shall provide the name and phone number of the contact person for the plan.

E.  Once a request has been made, the Administrator shall contact the opposing party.  Upon order of the Court, the parties shall complete mediation within thirty (30) days of the notification.

F.  If both parties agree to mediation, they shall enter into a written consent to mediate on a form provided by the Administrator.  The form shall contain a statement informing the parties of their rights and obligations and of the confidentiality of the proceedings.  This written consent shall be signed by both parties to the claim and shall be submitted to the Administrator before the selection of a mediator is made.

G.  Mediation is confidential and no part of the proceeding shall be considered a matter of public record.  Recommendations of the mediator are not binding unless the parties enter into a settlement agreement.  If an agreement is not reached, the results and statements made during the mediation are not admissible in any following proceeding.

H.  Upon receipt of the consent form or upon order of the Court, the Administrator shall provide the parties with a list of certified mediators.  Both parties shall agree to a mediator.  If the parties are unable to agree, the Administrator shall assign a certified mediator.

I.  The Workers' Compensation Court shall be responsible for certifying those persons who are eligible and qualified to serve as mediators.  An individual may be certified as a mediator if; the applicant meets the qualifications as required by the Court.

J.  Each certified mediator shall remain on the list for five (5) years, unless removed.  Mediators shall be required to complete at least six (6) hours of continuing education per two-year period in the areas of mediation and workers' compensation.  Proof of compliance with this requirement shall be submitted to the Administrator.  This continuing education requirement shall be in addition to any other such general requirement which may be required by the Oklahoma State Bar Association.  Cost of continuing education is to be borne by the applicant.

K.  Mediators shall be compensated at the rate or fee as determined by the mediator; provided, however, the rate or fee shall not exceed a maximum rate to be established by the Administrator by rule.  The cost of mediation shall be paid by the respondent or its insurance carrier.

L.  If the mediated claim is resolved, any final settlement of the action shall include a consent to mediation form or court order to complete mediation, as applicable, and shall be completed upon the filing of a Joint Petition or an Agreement Between Employer and Employee as to Fact with Relation to an Injury and Payment of Compensation.

Added by Laws 1997, c. 361, § 4, eff. Nov. 1, 1997.  Amended by Laws 1999, c. 420, § 4, eff. Nov. 1, 1999; Laws 2005, 1st Ex.Sess., c. 1, § 12, eff. July 1, 2005.

§85-3.11.  Computation of time.

The time within which an act is to be done, as provided for in Title 85 of the Oklahoma Statutes, shall be computed by excluding the first day and including the last day.  If the last day is a legal holiday as defined by Section 82.1 of Title 25 of the Oklahoma Statutes, it shall be excluded.  The provisions of this section are hereby declared to be a clarification of the law as it existed prior to the effective date of this act and shall not be considered or construed to be a change of the law as it existed prior to the effective date of this act.  Any action or proceeding arising under Title 85 of the Oklahoma Statutes prior to the effective date of this act for which a determination of the period of time prescribed by this section is in question or has been in question due to the enactment of Section 20, Chapter 293, O.S.L. 1999, shall be governed by the method for computation of time as prescribed by this section.

Added by Laws 2000, c. 260, § 6, emerg. eff. June 1, 2000.

§854.  Injuries occurring outside State  Right of election  Lands and property of United States.

From and after the passage and effective date of the Workers' Compensation Act, all the provisions of the Workers' Compensation Act of this state, Sections 1 et seq. of this title, shall apply to employers and to employees, irrespective of where accident resulting in injury may occur, whether within or without the territorial limits of the State of Oklahoma, when the contract of employment was entered into within the State of Oklahoma, and the said employee was acting in the course of such employment and performing work outside the territorial limits of this state under direction of such employer.  In such case the injured employee may elect to commence and maintain his action for benefits and compensation in the State of Oklahoma as provided in the Workers' Compensation Act and the Court is hereby vested with jurisdiction thereof as fully as if such injury or accident had occurred within this state.  Such right of election shall, however, not preclude the injured employee from recovering any benefits or compensation provided under any law of the state where injury occurred, and if such action be so commenced in such other state, or under the law of another state, and is prosecuted to final determination, such employee shall thereupon be precluded from his right of action under the Workers' Compensation Act of this state.  Provided, the injured employee may exercise his right of election to file his claim or commence his said action or proceeding in the State of Oklahoma, at any time prior to final adjudication or determination of his rights under the laws of another state, and the fact that he shall have been furnished or provided with medical, surgical, hospital or other treatment care, or paid temporary disability compensation in such other state, or under the laws thereof, shall not preclude such injured employee from recovering further benefits and compensation under the Workers' Compensation Act of this state.  Provided, further, no award made by the Court of this state shall include any compensation paid by the employer or insurance carrier before commencement of the action or proceeding in this state and any payments so made shall be treated as compensation voluntarily paid and credit therefor shall be allowed.

The State of Oklahoma accepts the provisions of the Acts of Congress designated as Public Law No. 814, 49 Statutes 1938, and hereby extends the territorial jurisdiction of the Workers' Compensation Act of this state to all lands and premises owned or held by the Government of the United States of America, by deed or act of cession, by purchase or otherwise, which are within the exterior boundaries of this state, and to all purchases, buildings, constructions, improvements or property belonging to the Government of the United States of America, which are within the exterior boundaries of this state, in the same manner and to the same extent as if said premises were under the exclusive jurisdiction of the State of Oklahoma, subject only to the limitations placed thereon by the Act of Congress.

Laws 1941, p. 476, § 1; Laws 1955, p. 485, § 1; Laws 1977, c. 234, § 13, eff. July 1, 1978.  

§85-5.  Discharge of employee - Termination of health insurance - Prohibited grounds.

A.  No person, firm, partnership, corporation, or other entity may discharge, or, except for nonpayment of premium, terminate any group health insurance of any employee because the employee has in good faith:

1.  Filed a claim;

2.  Retained a lawyer for representation regarding a claim;

3.  Instituted or caused to be instituted any proceeding under the provisions of this title;

4.  Testified or is about to testify in any proceeding under the provisions of this title; or

5.  Elected to participate or not to participate in a certified workplace medical plan as provided in Section 14 of this title.

B.  No person, firm, partnership, corporation, or other entity may discharge any employee during a period of temporary total disability solely on the basis of absence from work.

C.  After an employee's period of temporary total disability has ended, no person, firm, partnership, corporation, or other entity shall be required to rehire or retain any employee who is determined to be physically unable to perform assigned duties.  The failure of an employer to rehire or retain any such employee shall in no manner be deemed a violation of this section.

D.  No person, firm, partnership, corporation or other entity may discharge an employee for the purpose of avoiding payment of temporary total disability benefits to the injured employee.  

Added by Laws 1976, c. 217, § 1.  Amended by Laws 1992, c. 294, § 3, eff. Sept. 1, 1992; Laws 1994, 2nd Ex. Sess., c. 1, § 21, emerg. eff. Nov. 4, 1994; Laws 1998, c. 353, § 1, eff. Nov. 1, 1998; Laws 2001, 1st Ex. Sess., c. 3, § 6, emerg. eff. Oct. 23, 2001; Laws 2005, 1st Ex.Sess., c. 1, § 13, eff. July 1, 2005.

§856.  Penalty  Damages.

Except as provided in Section 29 of this act, a person, firm, partnership or corporation who violates any provision of Section 5 of this title shall be liable for reasonable damages, actual and punitive if applicable, suffered by an employee as a result of the violation.  An employee discharged in violation of the Workers' Compensation Act shall be entitled to be reinstated to his former position.  Exemplary or punitive damage awards made pursuant to this section shall not exceed One Hundred Thousand Dollars ($100,000.00). The burden of proof shall be upon the employee.

Amended by Laws 1986, c. 222, § 9, eff. Nov. 1, 1986.  

§856.1.  Liability of state or political subdivision.

The liability of the state or any political subdivision as defined in Section 152 of Title 51 of the Oklahoma Statutes, that is found in violation of Section 6 of Title 85 of the Oklahoma Statutes shall be limited to the limits of liability contained in the Governmental Tort Claims Act.

Added by Laws 1986, c. 222, § 10, eff. Nov. 1, 1986.  

§857.  Jurisdiction.

Except as otherwise provided for by law, the district courts of the state shall have jurisdiction, for cause shown, to restrain violations of this act.

Laws 1976, c. 217, § 3.  Amended by Laws 1990, c. 283, § 6, eff. Sept. 1, 1990.

§859.  County officers and employees  Coverage.

Workers' Compensation insurance coverage on county officials and employees engaged in hazardous employment, except for county sheriffs and deputies, is permissive and not mandatory.

Laws 1977, c. 144, § 2, emerg. eff. June 3, 1977.  

§8511.  Employer to pay compensation  Exceptions  Liability for compensation.

A.  Every employer subject to the provisions of the Workers' Compensation Act shall pay, or provide as required by the Workers' Compensation Act, compensation according to the schedules of the Workers' Compensation Act for the disability or death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault as a cause of such injury, and in the event of disability only, except as follows:

1.  An injury occasioned by the willful intention of the injured employee to bring about injury to himself or herself, or another;

2.  An injury resulting directly from the willful failure of the injured employee to use a guard or protection against accident furnished for use pursuant to any statute or by order of the Commissioner of Labor;

3.  An injury which occurs when an employee is using substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, or is using or abusing alcohol or illegal drugs, or is illegally using chemicals; provided, this paragraph shall only apply when the employee is unable to prove by a preponderance of the evidence that the substances, alcohol, illegal drugs, or illegally used chemicals were not the proximate cause of the injury or accident.  For the purposes of this paragraph, post-accident alcohol or drug testing results shall be admissible as evidence; and

4.  Except for innocent victims, an injury caused by a prank, horseplay, or similar willful or intentional behavior.

B.  Liability of any person, firm, or corporation having an interest in the subject matter, employers and contracting employers, general or intermediate, for compensation under the Workers' Compensation Act, when other than the immediate employer of the injured employee, shall be as follows:

1.  The independent contractor shall, at all times, be liable for compensation due to his or her direct employees, or the employees of any subcontractor of such independent contractor, and the principal employer shall also be liable in the manner hereinafter specified for compensation due all direct employees, employees of the independent contractors, subcontractors, or other employees engaged in the general employer's business; provided, however, if an independent contractor relies in good faith on proof of a valid workers' compensation insurance policy issued to a subcontractor of the independent contractor or on proof of a Certification of Non-Coverage Under the Workers' Compensation Act filed by the subcontractor with the Commissioner of Labor under Section 415.1 of Title 40 of the Oklahoma Statutes, then the independent contractor shall not be liable for injuries of any employees of the subcontractor.  Provided further, such independent contractor shall not be liable for injuries of any subcontractor of the independent contractor unless an employer-employee relationship is found to exist by the Workers' Compensation Court despite the filing of a Certification of Non-Coverage Under the Workers' Compensation Act.

2.  The person entitled to such compensation shall have the right to recover the same directly from the person's immediate employer, the independent contractor or intermediate contractor, and such claims may be presented against all such persons in one proceeding.  If it appears in such proceeding that the principal employer has failed to require a compliance with the Workers' Compensation Act of this state, by the independent contractor, then such employee may proceed against such principal employer without regard to liability of any independent, intermediate or other contractor; provided, however, if a principal employer relies in good faith on proof of a valid workers' compensation insurance policy issued to an independent contractor of the employer or to a subcontractor of the independent contractor or on proof of a Certification of Non-Coverage Under the Workers' Compensation Act filed by the independent contractor or subcontractor with the Commissioner of Labor under Section 415.1 of Title 40 of the Oklahoma Statutes, then the principal employer shall not be liable for injuries of any employees of the independent contractor or subcontractor.  Provided further, such principal employer shall not be liable for injuries of any independent contractor of the employer or of any subcontractor of the independent contractor unless an employer-employee relationship is found to exist by the Workers' Compensation Court despite the filing of a Certification of Non-Coverage Under the Workers' Compensation Act.  Provided, however, in any proceeding where compensation is awarded against the principal employer under the provisions hereof, such award shall not preclude the principal employer from recovering the same, and all expense in connection with said proceeding from any independent contractor, intermediate contractor or subcontractor whose duty it was to provide security for the payment of such compensation, and such recovery may be had by supplemental proceedings in the cause before the Court or by an independent action in any court of competent jurisdiction to enforce liability of contracts.

3.  Where work is performed on a single family residential dwelling or its premises occupied by the owner, or for a farmer whose cash payroll for wages, excluding supplies, materials and equipment, for the preceding calendar year did not exceed One Hundred Thousand Dollars ($100,000.00), such owner or farmer shall not be liable for compensation under the Workers' Compensation Act.  Such owner or farmer shall not be liable to the employee of any independent contractor or subcontractor, where applicable, or the farmer's own employee.

4.  Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier; provided, however, that in the case of silicosis or asbestosis, the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide (SiO 2) dust on each of at least sixty (60) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer.

5.  Where compensation is payable for an injury resulting from cumulative trauma, the last employer in whose employment the employee was last injuriously exposed to the trauma during a period of at least ninety (90) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.  If there is no employer in whose employment the employee was injuriously exposed to the trauma for a period of at least ninety (90) days, then the last employer in whose employment the employee was last injuriously exposed to the trauma and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, with right to contribution from any prior employer or insurance carrier.

Added by Laws 1915, c. 246, art. 2, § 1.  Amended by Laws 1919, c. 14, p. 15, § 4; Laws 1923, c. 61, p. 120, § 3; Laws 1951, p. 267, § 2, emerg. eff. May 29, 1951; Laws 1953, p. 429, § 7, emerg. eff. June 6, 1953; Laws 1955, p. 486, § 1; Laws 1955, p. 488, § 1, emerg. eff. June 6, 1955; Laws 1977, c. 234, § 16, eff. July 1, 1978; Laws 1980, c. 340, § 3, emerg. eff. June 25, 1980; Laws 1985, c. 266, § 2, eff. Nov. 1, 1985; Laws 1993, c. 349, § 6, eff. Sept. 1, 1993; Laws 1996, c. 363, § 2, eff. Nov. 1, 1996; Laws 1997, c. 361, § 5, eff. Nov. 1, 1997; Laws 2001, 1st Ex. Sess., c. 3, § 7, emerg. eff. Oct. 23, 2001.

§85-12.  Liability under preceding section exclusive - Exceptions - Actions - Defenses excluded - Extent of immunity.

The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees, any architect, professional engineer, or land surveyor retained to perform professional services on a construction project, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person.  If an employer has failed to secure the payment of compensation for his injured employee, as provided for in this title, an injured employee, or his legal representatives if death results from the injury, may maintain an action in the courts for damages on account of such injury, and in such action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee; provided:

(i) The immunity created by the provisions of this section shall not extend to action by an employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person against another employer, or its employees, on the same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker;

(ii) The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured or deceased worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker; and

(iii) This provision shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in paragraph (ii) of this section.  This section shall not be construed to relieve the employer from any other penalty provided for in this title for failure to secure the payment of compensation provided for in this title.

(iv) For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for services performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications.

(v) Nothing contained herein shall abrogate any rights arising under the Oklahoma Constitution.

Laws 1915, c. 246, art. 2, § 2.  Laws 1919, c. 14, p. 16, § 5; Laws 1951, p. 267, § 3, emerg. eff. May 29, 1951; Laws 1982, c. 37, § 1, emerg. eff. March 26, 1982; Laws 1984, c. 81, § 1; Laws 2005, 1st Ex.Sess., c. 1, § 14, eff. July 1, 2005.

§85-13.  No compensation for first seven calendar days.

No compensation shall be allowed for the first three (3) calendar days of disability except the benefits as provided for in Section 14 of this title.

Added by Laws 1915, c. 246, art. 2, § 3.  Amended by Laws 1919, c. 14, p. 17, § 6; Laws 1923, c. 61, p. 122, § 4; Laws 1955, p. 488, § 1, emerg. eff. May 3, 1955; Laws 1970, c. 239, § 1; Laws 1977, c. 234, § 17, eff. July 1, 1978; Laws 1986, c. 222, § 11, eff. Nov. 1, 1986; Laws 1994, 2nd Ex. Sess., c. 1, § 22, emerg. eff. Nov. 4, 1994.

§85-14.  Medical attention - Refusal of employment with restrictions.

A.  1.  The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary after the injury.  The treating physician shall supply the injured employee and the employer with a full examining report of injuries found at the time of examination and proposed treatment, this report to be supplied within seven (7) days after the examination; also, at the conclusion of the treatment the treating physician shall supply a full report of the treatment to the employer of the injured employee.

2.  The treating physician who renders treatment to the employee at any time shall promptly notify the employee and employer or the employer's insurer in writing after the employee has reached maximum medical improvement and is released from active medical care.  If the employee is capable of returning to modified light duty work, the treating physician shall promptly notify the employee and the employer or the employer's insurer thereof in writing and shall also specify what restrictions, if any, must be followed by the employer in order to return the employee to work.  In the event the treating physician provides such notification to the employer's insurer, the insurer shall promptly notify the employer.  If an injured employee, only partially disabled, refuses employment consistent with any restrictions ordered by the treating physician, the employee shall not be entitled to temporary benefits during the continuance of such refusal unless in the opinion of the treating physician such refusal was justifiable; provided, before compensation may be denied, the employee shall be served with a notice setting forth the consequences of the refusal of employment and that temporary benefits will be discontinued fifteen (15) days after the date of such notice.  The employee, upon receipt of such notice, may seek a hearing before the Workers' Compensation Court.  The Court shall grant an expedited hearing within five (5) days of any such application by the employee.  At such hearing, the Court may enter an order allowing the discontinuation of such benefits, denying the discontinuance of such benefits or temporarily denying the discontinuance of such benefits pending further hearing.  An order denying or temporarily denying the discontinuation of temporary benefits shall be based on a finding by the Court that probable cause exists to believe the work does not meet the conditions of the treating physician's restrictions or that the restrictions are unreasonable.

B.  The employer's selected physician shall have the right and responsibility to treat the injured employee.  A report of such examination shall be furnished to the employer and the injured employee within seven (7) days after such examination.

C.  If the employer fails or neglects to provide medical treatment within three (3) days after actual knowledge of the injury is received by the employer, the injured employee, during the period of such neglect or failure, may select a physician to provide medical treatment at the expense of the employer; provided, however, that the injured employee, or another in the employee's behalf, may obtain emergency treatment at the expense of the employer where such emergency treatment is not provided by the employer.  The attending physician so selected by the employee shall notify the employer and the insurance carrier within seven (7) days after examination or treatment was first rendered.  Once the employer has selected a treating physician and has offered the employee treatment, the physician selected by the employer shall become the treating physician.

D.  1.  If a self-insured employer, group self-insurance association plan, an employer's workers' compensation insurance carrier or an insured, which shall include any member of an approved group self-insured association, policyholder or public entity, regardless of whether such entity is insured by CompSource Oklahoma, has previously contracted with a certified workplace medical plan, the employer shall select for the injured employee a treating physician from the physicians listed within the network of the certified workplace medical plan.

2.  The claimant may apply for a change of physician by utilizing the dispute resolution process set out in the certified workplace medical plan on file with the State Department of Health.

E.  The term "physician" as used in this section shall mean any person licensed in this state as a medical doctor, chiropractor, podiatrist, dentist, osteopathic physician or optometrist.  The Court may accept testimony from a psychologist if the testimony is requested by the Court.  If an injured employee should die, whether or not the employee has filed a claim, that fact shall not affect liability for medical attention previously rendered, and any person entitled to such benefits may enforce charges therefor as though the employee had survived.

F.  1.  Whoever renders medical, surgical, or other attendance or treatment, nurse and hospital service, medicine, crutches and apparatus, or emergency treatment, may submit such charges and duration of treatment to the Administrator of the Court for review in accordance with the rules of the Administrator.

2.  Such charges and duration of treatment shall be limited to the usual, customary and reasonable payments and duration of treatment as prescribed and limited by a schedule of fees and treatment for all medical providers to be adopted, after notice and public hearing, by the Administrator.  Beginning January 1, 2006, the fee and treatment schedule for physician services shall be based on the most current Relative Value Units (RVU) produced by the Centers for Medicare and Medicaid Services (CMS) for the Medicare Physician Fee Schedule as of January 1 of the prior year.  These relative values shall be multiplied by appropriate conversion factors to be determined by the Administrator.  The conversion factors shall be adjusted by the Consumer Price Index and shall be adequate to reflect the usual and customary rates for treatment of workers' compensation patients taking into consideration all relevant factors including, but not limited to, the additional time required to provide disability management.  The Current Procedural Terminology (CPT) codes shall be adjusted to reflect any changes or additions to the CPT codes and coding of supplies and materials as published by the American Medical Association (AMA) or CMS.  If the AMA adds a new CPT code, the Administrator shall review the procedure contemplated by the new CPT code, and after such review, and notice and public hearing, the Administrator may add the new CPT code and set the base fee for the CPT code to ensure the adequacy of the physician's fee and treatment schedule.  For services not valued by CMS, the Administrator shall establish values based on the usual, customary and reasonable medical payments to health care providers in the same trade area for comparable treatment of a person with similar injuries and the duration of treatment prevailing in this state for persons with similar injuries.  The fee and treatment schedule shall be reviewed biennially by the Administrator and, after such review, and notice and public hearing, the Administrator shall be empowered to amend or alter the fee and treatment schedule to ensure its adequacy.  The Administrator shall not increase the overall maximum reimbursement levels for health care providers, including hospitals and ambulatory surgical centers, in an amount exceeding the cumulative percentage of change of the Consumer Price Index - Urban (CPI-U) for all costs since the last biennial review.  The fee schedule adopted by the Administrator as of January 1, 2006, shall be structured so as to result in at least a four-percent savings in workers' compensation medical costs.  In no event shall the reimbursement rate for any single procedure be equal to an amount which is less than one hundred fifteen percent (115%) of the current Medicare reimbursement rate for the procedure.

3.  The Administrator shall adopt a new fee and treatment schedule to be effective not later than January 1, 1998, which establishes maximum allowable reimbursement levels for preparation for or testimony at a deposition or court appearance which shall not exceed Two Hundred Dollars ($200.00) per hour and for work-related or medical disability evaluation services.

4.  An invoice for the actual cost to the hospital of an implantable device shall be adjusted by the hospital to reflect all applicable discounts, rebates, considerations and product replacement programs and must be provided to the payor by the hospital as a condition of payment for the implantable device.

5.  The Administrator's review of medical and treatment charges pursuant to this section shall be conducted pursuant to the fee and treatment schedule in existence at the time the medical care or treatment was provided.  The order of the approving medical and treatment charges pursuant to this section shall be enforceable by the Court in the same manner as provided in the Workers' Compensation Act for the enforcement of other compensation payments.  Any party feeling aggrieved by the order, decision or award of the Administrator shall, within ten (10) days, have the right to request a hearing on such medical and treatment charges by a judge of the Workers' Compensation Court.  The judge of the Court may affirm the decision of the Administrator, or reverse or modify said decision only if it is found to be contrary to the fee and treatment schedule existing at the time the said medical care or treatment was provided.  The order of the judge shall be subject to the same appellate procedure set forth in Section 3.6 of this title for all other orders of the Court.  The right to recover charges for every type of medical care for personal injuries arising out of and in the course of covered employment as herein defined, shall lie solely with the Workers' Compensation Court, and all jurisdiction of the other trial courts of this state over such action is hereby abolished.  The foregoing provision, relating to approval and enforcement of such charges and duration of treatment, shall not apply where a written contract exists between the employer or insurance carrier and the person who renders such medical, surgical or other attendance or treatment, nurse and hospital service, or furnishes medicine, crutches or apparatus.  When a medical care provider has brought a claim in the Workers' Compensation Court to obtain payment for services, a party who prevails in full on the claim shall be entitled to a reasonable attorney fee.

6.  Charges for prescription drugs shall be limited to ninety percent (90%) of the average wholesale price of the prescription, plus a dispensing fee of Five Dollars ($5.00) per prescription.  "Average wholesale price" means the amount determined from the latest publication of the blue book, a universally subscribed pharmacist reference guide annually published by the Hearst Corporation.  "Average wholesale price" may also be derived electronically from the drug pricing database synonymous with the latest publication of the blue book and furnished in the National Drug Data File (NDDF) by First Data Bank (FDB), a service of the Hearst Corporation.  Physicians shall prescribe and pharmacies shall dispense generic equivalent drugs when available.

G.  Where the employee is not covered by a certified workplace medical plan, the employer shall select the treating physician.  The Court on application of the employee shall order one change of treating physician.  In the event the employee makes application for such a change, the employee shall list on such application three (3) proposed physicians who are qualified to treat the body part affected.  The employer may agree to one of the physicians listed by the employee or submit its own list of three (3) physicians.  If the employee and employer do not agree on the physician, the Court shall select from the list of independent medical examiners maintained by the Court a treating physician who is qualified to treat the body part affected and who can see the employee within a reasonable time.  Additionally, a change of physician shall be allowed for each individual body part injured if the treating physician determines that the employee's injured body parts cannot be treated by the same physician.

H.  1.  For cases not covered by a certified workplace medical plan, and where the insurance company does not provide case management, case management may be granted by the Workers' Compensation Court on the request of any party, or when the Court determines that case management is appropriate.  The Court shall appoint a case manager from a list of qualified case managers developed, maintained and periodically reviewed by the Court.

2.  The reasonable and customary charges of a medical case manager appointed by the Court shall be borne by the employer.

3.  Except in cases covered by a certified workplace medical plan, upon application of the employee, the Court may order the employer to provide one change of case manager if the employee did not make the initial selection of the case manager.

I.  Diagnostic tests shall not be repeated sooner than six (6) months from the date of the test unless agreed to by the parties or ordered by the Court.

Added by Laws 1915, c. 246, art. 2, § 4.  Amended by Laws 1919, c. 14, p. 17, § 7; Laws 1923, c. 61, p. 122, § 5; Laws 1968, c. 256, § 1, emerg. eff. April 29, 1968; Laws 1973, c. 77, § 1; Laws 1977, c. 234, § 18, eff. July 1, 1978; Laws 1986, c. 222, § 12, eff. Nov. 1, 1986; Laws 1990, c. 283, § 7, eff. Sept. 1, 1990; Laws 1992, c. 294, § 4, eff. Sept. 1, 1992; Laws 1993, c. 349, § 7, eff. Sept. 1, 1993; Laws 1994, 2nd Ex.Sess., c. 1, § 23, emerg. eff. Nov. 4, 1994; Laws 1996, c. 105, § 2, eff. Nov. 1, 1996; Laws 1996, c. 363, § 3, eff. Nov. 1, 1996; Laws 1997, c. 361, § 6, eff. Nov. 1, 1997; Laws 1998, c. 353, § 3, eff. Nov. 1, 1998; Laws 2000, c. 248, § 2, eff. Sept. 1, 2000; Laws 2001, 1st Ex.Sess., c. 3, § 8, emerg. eff. Oct. 23, 2001; Laws 2002, c. 215, § 1, eff. Nov. 1, 2002; Laws 2005, 1st Ex.Sess., c. 1, § 15, eff. July 1, 2005.

§85-14.1.  Integrated management of claims pilot program.

The Insurance Commissioner of the State of Oklahoma shall establish a pilot program of integrated management of an employer's workers' compensation and group health insurance claims by an insurer authorized to do business in the state and shall promulgate such rules as may be necessary to implement the provisions of this section.  The integrated management of such claims shall in no event affect any benefits, rights or coverage established pursuant to a workers' compensation insurance policy.

Added by Laws 1993, c. 349, § 8, eff. Sept. 1, 1993.

§85-14.2.  Certified workplace medical plans - Selection of treating physician.

A.  If a self-insured employer, group self-insurance association plan, an employer's workers' compensation insurance carrier or an insured, which shall include any member of an approved group self-insured association, policyholder or public entity, regardless of whether such entity is insured by CompSource, has contracted with a workplace medical plan that is certified by the State Commissioner of Health as provided in Section 14.3 of this title, the employer shall select for the injured employee a treating physician from the physicians listed within the network of the certified workplace medical plan.  The claimant may apply to the certified workplace medical plan for a one-time change of physician to another appropriate physician within the network of the certified workplace medical plan by utilizing the dispute resolution process set out in the certified workplace medical plan on file with the State Department of Health.

Notwithstanding any other provision of law, those employees who are subject to such certified workplace medical plan shall receive medical treatment in the manner prescribed by the plan.

B.  The provisions of this section shall not preclude:

1.  An employee, who has exhausted the dispute resolution process of the certified workplace medical plan, from petitioning the Workers' Compensation Court or the Administrator of the Workers' Compensation Court for a change of treating physician within the certified workplace medical plan or, if a physician who is qualified to treat the employee's injuries is not available within the plan, for a change of physician outside the plan, if the physician agrees to comply with all the rules, terms and conditions of the certified workplace medical plan; or

2.  An employee from seeking emergency medical treatment as provided in Section 14 of this title.

C.  The provisions of this section shall not apply to treatment received by an employee for an accepted accidental injury or occupational disease for which treatment began prior to November 4, 1994.

Added by Laws 1994, 2nd Ex. Sess., c. 1, § 24, emerg. eff. Nov. 4, 1994.  Amended by Laws 1996, c. 105, § 3, eff. Nov. 1, 1996; Laws 1996, c. 363, § 4, eff. Nov. 1, 1996; Laws 1998, c. 353, § 4, eff. Nov. 1, 1998; Laws 2001, 1st Ex. Sess., c. 3, § 9, emerg. eff. Oct. 23, 2001; Laws 2005, 1st Ex.Sess., c. 1, § 16, eff. July 1, 2005.

§85-14.3.  Application for certification of workplace medical plans - Independent insurance contracts - Exhaustion requirement - Inspection of plans.

A.  Any person or entity may make written application to the Commissioner of Health of the State of Oklahoma to have a workplace medical plan certified that provides management of quality treatment to injured employees for injuries and diseases compensable under the Workers' Compensation Act.  Each application for certification shall be accompanied by a fee of One Thousand Five Hundred Dollars ($1,500.00).  A workplace medical plan may be certified to provide services to a limited geographic area.  A certificate is valid for a five-year period, unless revoked or suspended.  Application for certification shall be made in the form and manner and shall set forth information regarding the proposed program for providing services as the Commissioner may prescribe.  The information shall include, but not be limited to:

1.  A list of the names of all medical providers who will provide services under the plan, together with appropriate evidence of compliance with any licensing or certification requirements for those providers to practice in this state; and

2.  A description of the places and manner of providing services under the plan.

B.  1.  The Commissioner shall not certify a plan unless the Commissioner finds that the plan:

a. proposes to provide quality services for all medical services which:

(1) may be required by the Workers' Compensation Act in a manner that is timely, effective and convenient for the employee, and

(2) utilizes medical treatment guidelines and protocols substantially similar to those established for use by medical service providers, which have been recommended by the Physician Advisory Committee and adopted by the Administrator pursuant to subsection B of Section 201.1 of this title.  If the Administrator has not adopted medical treatment guidelines and protocols, the Commissioner may certify a plan that utilizes medical guidelines and protocols established by the plan if, in the discretion of the Commissioner, the guidelines and protocols are reasonable and will carry out the intent of the Workers' Compensation Act.  Certified plans must utilize medical treatment guidelines and protocols substantially similar to those adopted by the Administrator pursuant to Section 201.1 of this title, as such guidelines and protocols become adopted,

b. is reasonably geographically convenient to residents of the area for which it seeks certification,

c. provides appropriate financial incentives to reduce service costs and utilization without sacrificing the quality of service,

d. provides adequate methods of peer review, utilization review and dispute resolution to prevent inappropriate, excessive or medically unnecessary treatment, and excludes participation in the plan by those providers who violate these treatment standards,

e. requires the dispute resolution procedure of the plan to include a requirement that disputes on an issue, including a subsequent change of physician as described in the provisions of Section 14 of this title and this section, related to medical care under the plan be attempted to be resolved within ten (10) days of the time the dispute arises and if not resolved within ten (10) days, the employee may pursue remedies in the Workers' Compensation Court,

f. provides aggressive case management for injured employees and a program for early return to work,

g. provides workplace health and safety consultative services,

h. provides a timely and accurate method of reporting to the Commissioner necessary information regarding medical service costs and utilization to enable the Commissioner to determine the effectiveness of the plan,

i. authorizes necessary emergency medical treatment for an injury provided by a provider of medical, surgical, and hospital services who is not a part of the plan,

j. does not discriminate against or exclude from participation in the plan any category of providers of medical, surgical, or hospital services and includes an adequate number of each category of providers of medical, surgical, and hospital services to give participants access to all categories of providers and does not discriminate against ethnic minority providers of medical services, and

k. complies with any other requirement the Commissioner determines is necessary to provide quality medical services and health care to injured employees.

2.  The Commissioner may accept findings, licenses or certifications of other state agencies as satisfactory evidence of compliance with a particular requirement of this section.

C.  If any insurer, except CompSource Oklahoma, fails to contract with or provide access to a certified workplace medical plan, an insured, after sixty (60) days' written notice to its insurance carrier, shall be authorized to contract independently with a plan of his or her choice for a period of one (1) year, to provide medical care under the Workers' Compensation Act.  The insured shall be authorized to contract, after sixty (60) days' written notice to its insurance carrier, for additional one-year periods if his or her insurer has not contracted with or provided access to a certified workplace medical plan.

D.  If CompSource Oklahoma fails to contract with at least three certified workplace medical plans, each covering at least fifty counties, then the insured, after sixty (60) days' written notice to CompSource Oklahoma, shall be authorized to contract independently with a plan of the insured's choice for a period of one (1) year to provide medical care under the Workers' Compensation Act.  The insured shall be authorized to contract, after sixty (60) days' written notice to CompSource Oklahoma, for additional one-year periods if CompSource Oklahoma has not contracted with or fails to continue contracts with at least three certified workplace medical plans covering at least fifty counties.

E.  An employee shall exhaust the dispute resolution procedure of the certified workplace medical plan before seeking legal relief on an issue related to medical care under the plan, including a subsequent change of physician as described in the provisions of Section 14 of this title and this section, provided the dispute resolution procedure shall create a process which shall