IN RE: THE COURT RULES OF THE WORKERS' COMPENSATION COURT

IN RE: THE COURT RULES OF THE WORKERS' COMPENSATION COURT
2004 OK 24
Case Number: SCAD-2004-25
Decided: 03/29/2004

THE SUPREME COURT OF THE STATE OF OKLAHOMA

IN RE: THE COURT RULES OF THE WORKERS' COMPENSATION COURT - YEAR 2004 AMENDMENTS

ORDER

¶1 The Court Rules of the Workers' Compensation Court as amended and approved by that Court on the 5th day of March, 2004, having been submitted to this Court for its consideration, are hereby approved, subject to the following amendment by the Court: Rule 44 (A) (7) is amended by deleting "request" and inserting in lieu thereof the word, "receive". Rule 44 (A) (7) shall read: "A physician may receive not more that Two Hundred Dollars ($200.00) in advance in order to schedule a deposition. The advance payment shall be applied against amounts owed for testimony fees".

¶2 The rules as amended are for official publication and shall become effective June 1, 2004.

¶3 The rules as amended shall be published in the Oklahoma Bar Journal three times.

¶4 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 29th DAY OF MARCH, 2004.

/S/CHIEF JUSTICE

¶5 ALL JUSTICES CONCUR.

COURT RULES OF THE WORKERS' COMPENSATION COURT

PROPOSED CHANGES FOR CONSIDERATION BY THE
OKLAHOMA SUPREME COURT FOLLOWING ADOPTION BY THE
JUDGES OF THE WORKERS' COMPENSATION COURT
IN CONFERENCE ON MARCH 5, 2004

Rules 1 - 12: No Change

Rule 13.

Commencement of a Claim and Designation of a Service Agent

A. A proceeding for compensation under the Workers' Compensation Act shall be commenced by filing, in triplicate, an executed notice form that includes the employer's Federal Employer Identification Number. The following forms shall be used, as appropriate:

1. Form 3 for accidental injury benefits;

2. Form 3-a for death benefits; and

3. Form 3-b for occupational disease benefits.

B. A proceeding under Court Rule 24, to address payment of disputed health service expenses (physician's fees, hospital costs, etc.) shall be commenced by filing a Form 18 or 19. A proceeding under Court Rule 24 to address disputed vocational rehabilitation expenses or medical case management expenses shall be commenced by filing a Form 19. A Form 9 shall be filed to request a hearing on a Form 19 dispute.

C. When the claimant files a notice of claim form initiating a proceeding (Form 3, Form 3-a or Form 3-b), a copy of that notice of claim form bearing the assigned case number and the filing date shall be mailed by the Court to a single service agent of the self-insured employer, group self-insurance association, insurance carrier or CompSource Oklahoma which shall be designated on a Form 7 and filed with the Court. The Court shall send all notices and correspondence to the service agent designated on the Form 7, until an Entry of Appearance is filed pursuant to Rule 7. If no service agent is designated on the Form 7, notices and correspondence shall be sent to:

1. the signatory on the self-insurance application, if the insurer is a self-insured employer;

2. the Administrator of the group self-insurance association, if the insurer is a group self-insurance association;

3. the person designated to receive notice of service of process for an insurer as provided in 36 O.S., Section 621, if the insurer is a foreign or alien insurance carrier;

4. the Commissioner of CompSource Oklahoma, if the insurer is CompSource Oklahoma; or

5. the service agent on file with the Secretary of State, if the insurer is a domestic insurance carrier.

D. If the employer is uninsured or the Court cannot determine insurance coverage, notices and correspondence shall be sent by certified mail to the employer's last known address until such time as an attorney enters an appearance on behalf of such an employer.

Rules 13A, 13B and 14: No Change

Rule 15.

Termination of Temporary Compensation and Medical Benefits

A. The employer may terminate temporary compensation whether begun voluntarily or by order, without a new order of the Court in the event:

1. The employee has not filed either a Form 3 or Form 3-b with the Court;

2. The employee returns to full-time employment with that employer;

3. The claimant files a permanent disability rating report; or

4. The parties voluntarily agree in writing that such payments may terminate.

B. If the court-appointed independent medical examiner determines that the employee is capable of returning to work and the claimant elects not to do so, temporary total disability and medical benefits shall cease, unless otherwise ordered by the Court, as follows:

1. The court-appointed independent medical examiner shall provide a copy of the Form 5 Release to the assigned Judge and mail a copy of the Form 5 to the employee and all opposing parties, when the examiner determines the claimant is capable of returning to work.

2. Temporary total disability benefits shall cease when the employee has reached maximum medical improvement on all body parts in dispute, is released from active medical care and can return to full or permanently restricted full duty, as indicated on the Form 5 Release, from the court-appointed independent medical examiner.

3. In the event the employee objects to the cessation of temporary total disability benefits, the employee may request an expedited hearing on the issue of reinstatement of temporary total disability benefits as provided in 85 O.S. Section 17 (D)(7).

C. In all other events, including the receipt of a Form 5 Release for Light Duty Work from a court-appointed independent medical examiner, temporary compensation may be terminated only as follows:

1. The employer shall file its Form 11, Motion to Terminate Temporary Compensation, with the Court and mail a copy thereof to the employee. If the employer's request to terminate is based upon the written medical report of an evaluating physician, or a Form 5 of a physician who indicates the employee has been released from the physician's professional care and is able to return to work, a copy of that report or of the Form 5 shall be mailed to opposing parties. The Form 11 shall contain a statement that the all reports (including Form 5s) were or Form 5 was mailed to opposing parties.

2. If the employee objects to the employer's termination of temporary compensation, the employee shall have fourteen (14) days from the date the employer's Form 11 is filed with the Court to object to the termination of temporary compensation by the filing of a Form 9, Motion to Set for Trial. The claimant must file the Form 9 with the Court and mail a copy thereof to the employer or its insurance carrier. The employee shall state on the Form 9 specific reasons for the objection to the termination of temporary compensation.

3. If the employee's objection to the termination of temporary compensation is based upon a medical report to be offered by the employee at trial, a copy of the report shall be delivered to opposing parties, not later than fifteen (15) days from the date of the filing of the Form 9 objecting to the termination of temporary total disability. Unless the objection has been filed by the employee within the above fourteen (14) day period and the medical report is delivered to opposing parties not later than fifteen (15) days after the filing of a Form 9, the employer may terminate temporary compensation retroactively to the date the Form 11 was filed with the Court. If the claimant timely delivers a copy of a current medical report to opposing parties, temporary total disability benefits shall continue until further order of the Court.

4. The Form 11, Motion To Terminate Temporary Total Disability, shall be set on a temporary issue docket on a priority basis. The employer shall continue to pay temporary compensation until further order of the Court even if this occurs after the requested trial. The employer shall be entitled to receive credit for any overpayment of temporary compensation against any subsequent order for permanent compensation.

5. If the employer fails to continue payment of temporary compensation benefits after a Form 9 has been properly filed, the trial judge shall, at the time of trial, order the reinstatement of such benefits retroactive to the date benefits were terminated because of the employer's failure to follow this Court rule. A fifteen percent (15%) penalty on all unpaid benefits shall be assessed against the employer at the date of trial. Further, the employer shall be required to file another Form 11 and fully comply with this rule before a trial on the Motion to Terminate Temporary Compensation will be conducted.

Rules 16 - 33: No Change

Rule 34.

Disputed Counsel Fees - Withdrawal of Attorney - Change of Address

A. When a dispute arises among several counsel as to the identity of claimant's attorney of record, or when several successive counsel lay claim to a fee in the same case, the trial judge shall decide the issues raised and allocate the fee allowed in proportion to the services rendered.

B. 1. Before any attorney may withdraw as counsel from a Workers' Compensation Court case, the attorney shall obtain leave of Court to withdraw, for good cause shown.

2. The attorney filing the Application for Leave to Withdraw as Attorney of Record shall send a copy of the application to the attorney's client and to all attorneys of record. All applications shall be signed by the party on whose behalf the attorney has previously appeared or contain a certificate of the movant attorney that:

a. the client has knowledge of and has approved or refused to approve the withdrawal; or

b. the attorney has made a good faith effort to notify the client and the client cannot be located.

3. In all cases, the moving attorney shall certify whether or not:

a. the case is set for trial or settlement conference;

b. the case is pending for an order;

c. the case is pending on appeal;

d. a permanent total disability order has been entered; or

e. a death claim order has been entered.

4. All applications to withdraw shall include an order for the Court.

5. A Form 93 has been adopted by the Court that may be used for this purpose.

6. The filing of an Application and Order For Leave to Withdraw on a Form 93 provided for this purpose, does not perfect an attorney lien.

C. Except when an attorney's representation has been terminated at the client's initiative, no attorney shall be allowed to withdraw as an attorney for a party when that attorney has signed the pleadings necessary to perfect an appeal to the Court En Banc. This prohibition shall apply until the appeal has been fully submitted to the Court En Banc for consideration. This prohibition shall not apply if another attorney has entered an appearance for the appealing party prior to the filing of the application to withdraw.

D. Any attorney of record shall give notice of a change of address by mailing to the docket office, a copy of the letterhead containing the new address and a list containing the Oklahoma Bar Association number of each attorney member of the firm who regularly appears in Court. A party acting pro se shall mail notice of the change of address to the docket office. Attorneys of record who change firms shall notify the Court of the status of the representation of their clients, and shall immediately withdraw, when appropriate.

Rules 35 - 43: No Change

Rule 44.

Independent Medical Examiners - Fees and Costs

A. The respondent shall pay all fees for services performed by an independent medical examiner according to the following schedule:

1. An independent medical examiner who undertakes active treatment of the employee, shall be paid in accordance with the Court's Schedule of Medical and Hospital Fees.

2. Diagnostic tests shall be paid in accordance with the Court's Schedule of Medical and Hospital Fees.

3. The review of records and information, the performance of any necessary examinations, the preparation of progress reports, and the preparation of the verified or declared written report pursuant to Rule 20, shall be billed at the physician's usual and customary rate, not to exceed Three Hundred Dollars ($300.00) per hour or any portion thereof, not to exceed a maximum reimbursement of One Thousand Six Hundred Dollars ($1,600.00) per case. The Court may permit exception to this provision, for good cause shown.

4. Reimbursement for medical testimony given in person or by deposition shall be in accordance with the independent medical examiner's usual and customary charges, not to exceed Four Hundred Dollars ($400.00) per hour or any portion thereof, plus an allowance of Seventy-five Dollars ($75.00) for 15 minute increments thereafter. Preparation time shall be reimbursed at the examiner's usual and customary charge, not to exceed One Hundred Dollars ($100.00). A Four Hundred Dollar ($400.00) charge is allowable whenever a deposition or scheduled testimony is canceled by any party within three working days prior to the scheduled start of the deposition or scheduled testimony. The party canceling the deposition or scheduled testimony is responsible for the incurred cost.

5. Amounts owed to the independent medical examiner for services other than treatment are payable upon submission of the examiner's verified or declared written report. Amounts owed to the independent medical examiner for treatment are payable when treatment is rendered.

6. The independent medical examiner may charge and receive up to Two Hundred Dollars ($200.00), to be paid initially by the respondent in the event the employee fails to appear for any scheduled examination, or if the examination is canceled by the employee or the respondent within forty-eight (48) hours of the scheduled time. The respondent shall be reimbursed by the employee if the failure to appear or the cancellation by the employee was without good cause. The independent medical examiner may not assess a cancellation charge for appointments canceled by the examiner.

7.

B. Any dispute regarding payment for services under subsection A of this Rule, rendered by a Court appointed independent medical examiner that cannot be resolved by the examiner and the parties themselves, may be submitted for resolution pursuant to Rule 1 of the Court Administrator's Rules (Form 18 Proceedings) or Rule 24 (Form 19 Proceedings) or mediation, as appropriate.

Rules 45 - 57: No Change

Rule 58.

Pauper's Affidavit

Any party making application to proceed in forma pauperis shall file a Pauper's Affidavit, Form 99, with the Court stating applicant's status and inability to pay fees and costs required under the Workers' Compensation Act, 85 O.S., Section 1, et seq. The party shall file the Pauper's Affidavit with the Court, providing copies to all other parties in the cause of action.

The Court shall set the party's application to proceed in forma pauperis for prehearing conference before the assigned trial judge prior to any hearing on merits, giving notice to all other parties in the cause of action. Any party may file a Pauper's Affidavit with an appeal to the Court En Banc, as provided under 85 O.S, Section 3.6. The application to proceed in forma pauperis shall be set for prehearing conference before the assigned trial judge before the appeal is docketed for oral argument.

An appeal to the Court en banc of a Trial Judge's denial of pauper status shall be set before the Court en banc on a priority basis with payment of the cost of the appeal (including transcription and filing fee) being deferred pending the resolution of the pauper status appeal. In the event the denial of the pauper status is affirmed by the Court en banc, the party shall be required to pay the filing fee for the appeal and the transcription costs of the same prior to the original, underlying appeal being set for hearing before the Court en banc. Only one appeal fee is due as the pauper status appeal is part of the original, underlying appeal. In the event pauper status is found by the Court en banc, the deferred costs and fees shall be borne by the Workers' Compensation Court.

Rules 59 - 60: No Change

Rule 61.

Effective Date