An act relating to workers' compensation, the official text

1                   STATE OF OKLAHOMA

2          1st Session of the 60th Legislature (2025)

3 HOUSE BILL 2217               By: Deck

4

5

6                               AS INTRODUCED

7   An Act relating to workers' compensation; amending

    85A O.S. 2021, Sections 45 and 82, which relate to

8   vocational and rehabilitation training; providing for

    payment of benefits during certain retraining or job

9   placement period; providing benefits additional to

    other workers' compensation benefits; providing for

10  continuation of benefits upon certain findings;

    requiring evidentiary support; providing for updates;

11  authorizing request for discontinuance; prohibiting

    termination of benefits without action by Commission;

12  providing for permanent cessation of benefits under

    certain circumstances; and providing an effective

13  date.

14

15

16 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

17  SECTION 1.      AMENDATORY  85A O.S. 2021, Section 45, is

18 amended to read as follows:

19  Section 45. A. Temporary Total Disability.

20  1. If the injured employee is temporarily unable to perform his

21 or her job or any alternative work offered by the employer, he or

22 she shall be entitled to receive compensation equal to seventy

23 percent (70%) of the injured employee's average weekly wage, but not

24 to exceed the state average weekly wage, for one hundred fifty-six

    Req. No. 11591                                                 Page 1
1 (156) weeks. Provided, there shall be no payment for the first

2 three (3) days of the initial period of temporary total disability.

3 If an administrative law judge finds that a consequential injury has

4 occurred and that additional time is needed to reach maximum medical

5 improvement, temporary total disability may continue for a period of

6 not more than an additional fifty-two (52) weeks. Such finding

7 shall be based upon a showing of medical necessity by clear and

8 convincing evidence. An employer shall have the right to recover

9 any overpayment of temporary total disability payments from a

10 subsequent permanent partial disability award if the offset is

11 deemed justified by the Workers' Compensation Commission.

12  2. When the injured employee is released from active medical

13 treatment by the treating physician for all body parts found by the

14 Commission to be injured, or in the event that the employee, without

15 a valid excuse, misses three consecutive medical treatment

16 appointments, fails to comply with medical orders of the treating

17 physician, or otherwise abandons medical care, the employer shall be

18 entitled to terminate temporary total disability by notifying the

19 employee, or if represented, his or her counsel. If, however, an

20 objection to the termination is filed by the employee within ten

21 (10) days of termination, the Commission shall set the matter within

22 twenty (20) days for a determination if temporary total disability

23 compensation shall be reinstated. The temporary total disability

24 shall remain terminated until such time as the employee complies

    Req. No. 11591                                                 Page 2
1 with medical orders of the treating physician. Notwithstanding the

2 provisions of this paragraph, benefits under this subsection shall

3 be permanently terminated by order of the Commission if the employee

4 is noncompliant or abandons treatment for sixty (60) days, or if

5 benefits under this subsection have been suspended under this

6 paragraph at least two times. The administrative law judge may

7 appoint an independent medical examiner to determine if further

8 medical treatment is reasonable and necessary. The independent

9 medical examiner shall not provide treatment to the injured worker,

10 unless agreed upon by the parties.

11  B. Temporary Partial Disability.

12  1. If the injured employee is temporarily unable to perform his

13 or her job, but may perform alternative work offered by the

14 employer, he or she shall be entitled to receive compensation equal

15 to seventy percent (70%) of the difference between the injured

16 employee's average weekly wage before the injury and his or her

17 weekly wage for performing alternative work after the injury, but

18 only if his or her weekly wage for performing the alternative work

19 is less than the temporary total disability rate. The injured

20 employee's actual earnings plus temporary partial disability

21 compensation shall not exceed the temporary total disability rate.

22  2. Compensation under this subsection may not exceed fifty-two

23 (52) weeks.

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    Req. No. 11591                                                 Page 3
1  3. If the employee refuses to perform the alternative work

2 offered by the employee, he or she shall not be entitled to benefits

3 under subsection A of this section or under this section.

4  C. Permanent Partial Disability.

5  1. A permanent partial disability award or combination of

6 awards granted an injured worker may not exceed a permanent partial

7 disability rating of one hundred percent (100%) to any body part or

8 to the body as a whole. The determination of permanent partial

9 disability shall be the responsibility of the Commission through its

10 administrative law judges. Any claim by an employee for

11 compensation for permanent partial disability must be supported by

12 competent medical testimony of a medical doctor, osteopathic

13 physician, or chiropractor, and shall be supported by objective

14 medical findings, as defined in this act. The opinion of the

15 physician shall include employee's percentage of permanent partial

16 disability and whether or not the disability is job-related and

17 caused by the accidental injury or occupational disease. A

18 physician's opinion of the nature and extent of permanent partial

19 disability to parts of the body other than scheduled members must be

20 based solely on criteria established by the Sixth Edition of the

21 American Medical Association's "Guides to the Evaluation of

22 Permanent Impairment". A copy of any written evaluation shall be

23 sent to both parties within seven (7) days of issuance. Medical

24 opinions addressing compensability and permanent disability must be

   Req. No. 11591                                                   Page 4
1 stated within a reasonable degree of medical certainty. Any party

2 may submit the report of an evaluating physician.

3   2. Permanent partial disability shall not be allowed to a part

4 of the body for which no medical treatment has been received. A

5 determination of permanent partial disability made by the Commission

6 or administrative law judge which is not supported by objective

7 medical findings provided by a treating physician who is a medical

8 doctor, doctor of osteopathy, chiropractor or a qualified

9 independent medical examiner shall be considered an abuse of

10 discretion.

11  3. The examining physician shall not deviate from the Guides

12 except as may be specifically provided for in the Guides.

13  4. In cases of permanent partial disability, the compensation

14 shall be seventy percent (70%) of the employee's average weekly

15 wage, not to exceed Three Hundred Fifty Dollars ($350.00) per week

16 which shall increase to Three Hundred Sixty Dollars ($360.00) per

17 week on July 1, 2021, for a term not to exceed a total of three

18 hundred sixty (360) weeks for the body as a whole.

19  5. Assessments pursuant to Sections 31, 98 and 122 of this

20 title shall be calculated based upon the amount of the permanent

21 partial disability award.

22  6. Previous Disability: The fact that an employee has suffered

23 previous disability or received compensation therefor shall not

24 preclude the employee from compensation for a later accidental

    Req. No. 11591                                                  Page 5
1 personal injury or occupational disease. In the event there exists

2 a previous permanent partial disability, including a previous non-

3 work-related injury or condition which produced permanent partial

4 disability and the same is aggravated or accelerated by an

5 accidental personal injury or occupational disease, compensation for

6 permanent partial disability shall be only for such amount as was

7 caused by such accidental personal injury or occupational disease

8 and no additional compensation shall be allowed for the preexisting

9 disability or impairment. Any such reduction shall not apply to

10 temporary total disability, nor shall it apply to compensation for

11 medical treatment.

12  If workers' compensation benefits have previously been awarded

13 through settlement or judicial or administrative determination in

14 Oklahoma, the percentage basis of the prior settlement or award

15 shall conclusively establish the amount of permanent partial

16 disability determined to be preexisting. If workers' compensation

17 benefits have not previously been awarded through settlement or

18 judicial or administrative determination in Oklahoma, the amount of

19 preexisting permanent partial disability shall be established by

20 competent evidence and determined by the Commission.

21  7. No payments on any permanent partial disability order shall

22 begin until payments on any preexisting permanent partial disability

23 orders have been completed.

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    Req. No. 11591                                                  Page 6
1   8. The whole body shall represent a maximum of three hundred

2 sixty (360) weeks.

3   9. The permanent partial disability rate of compensation for

4 amputation or permanent total loss of use of a scheduled member

5 specified in Section 46 of this title shall be seventy percent (70%)

6 of the employee's average weekly wage, not to exceed Three Hundred

7 Fifty Dollars ($350.00), with an increase to Three Hundred Sixty

8 Dollars ($360.00) on July 1, 2021, multiplied by the number of weeks

9 set forth for the member in Section 46 of this title, regardless of

10 whether the injured employee is able to return to his or her pre-

11 injury or equivalent job.

12  10. An injured employee who is eligible for permanent partial

13 disability under this subsection shall be entitled to receive

14 vocational rehabilitation services provided by a technology center

15 or public secondary school offering vocational-technical education

16 courses, or a member institution of The Oklahoma State System of

17 Higher Education, which shall include retraining and job placement

18 to restore the employee to gainful employment. Vocational

19 rehabilitation services or training shall not extend for a period of

20 more than fifty-two (52) weeks.

21  D. Permanent Total Disability.

22  1. In case of total disability adjudged to be permanent,

23 seventy percent (70%) of the employee's average weekly wages, but

24 not in excess of the state's average weekly wage, shall be paid to

    Req. No. 11591                                                Page 7
1 the employee during the continuance of the disability until such

2 time as the employee reaches the age of maximum Social Security

3 retirement benefits or for a period of fifteen (15) years, whichever

4 is longer. In the event the claimant dies of causes unrelated to

5 the injury or illness, benefits shall cease on the date of death.

6 Provided, however, any person entitled to revive the action shall

7 receive a one-time lump-sum payment equal to twenty-six (26) weeks

8 of weekly benefits for permanent total disability awarded the

9 claimant. If more than one person is entitled to revive the claim,

10 the lump-sum payment shall be evenly divided between or among such

11 persons. In the event the Commission awards both permanent partial

12 disability and permanent total disability benefits, the permanent

13 total disability award shall not be due until the permanent partial

14 disability award is paid in full. If otherwise qualified according

15 to the provisions of this act, permanent total disability benefits

16 may be awarded to an employee who has exhausted the maximum period

17 of temporary total disability even though the employee has not

18 reached maximum medical improvement.

19  2. The Workers' Compensation Commission shall annually review

20 the status of any employee receiving benefits for permanent total

21 disability against the last employer. The Commission shall require

22 the employee to annually file an affidavit under penalty of perjury

23 stating that he or she is not and has not been gainfully employed

24 and is not capable of gainful employment. Failure to file such

    Req. No. 11591                                                 Page 8
1 affidavit shall result in suspension of benefits; provided, however,

2 reinstatement of benefits may occur after proper hearing before the

3 Commission.

4   E. 1. The Workers' Compensation Commission may hire or

5 contract for a Vocational Rehabilitation Director to oversee the

6 vocational rehabilitation program of the Commission.

7   2. Upon the request of either party, an administrative law

8 judge shall determine if it is appropriate for a claimant to receive

9 vocational rehabilitation training or services. If appropriate, the

10 administrative law judge shall refer the employee to a qualified

11 expert for evaluation of the practicability of, need for and kind of

12 rehabilitation services or training necessary and appropriate in

13 order to restore the employee to gainful employment. The cost of

14 the evaluation shall be paid by the employer.

15  3. Upon receipt of such report, and after affording all parties

16 an opportunity to be heard, the administrative law judge shall order

17 that any rehabilitation services or training, recommended in the

18 report, or such other rehabilitation services or training as the

19 administrative law judge may deem necessary, provided the employee

20 elects to receive such services, shall be provided at the expense of

21 the employer. Except as otherwise provided in this subsection,

22 refusal to accept rehabilitation services by the employee shall in

23 no way diminish any benefits allowable to an employee.

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    Req. No. 11591                                                 Page 9
1   4. The administrative law judge may order vocational

2 rehabilitation before the injured employee reaches maximum medical

3 improvement, if the treating physician believes that it is likely

4 that the employee's injury will prevent the employee from returning

5 to his or her former employment. In granting early benefits for

6 vocational rehabilitation, the Commission shall consider temporary

7 restrictions and the likelihood that such rehabilitation will return

8 the employee to gainful employment earlier than if such benefits are

9 granted after the permanent partial disability hearing in the claim.

10  5. Vocational rehabilitation services or training shall not

11 extend for a period of more than fifty-two (52) weeks. This period

12 may be extended for an additional fifty-two (52) weeks or portion

13 thereof by special order of the Commission, after affording the

14 interested parties an opportunity to be heard. A request for

15 vocational rehabilitation services or training shall be filed with

16 the Commission by an interested party not later than sixty (60) days

17 from the date of receiving permanent disability that prevents the

18 injured employee from returning to his or her pre-injury or

19 equivalent position.

20  6. If rehabilitation requires residence at or near the facility

21 or institution which is away from the employee's customary

22 residence, reasonable cost of the employee's board, lodging, travel,

23 tuition, books and necessary equipment in training shall be paid for

24 by the insurer in addition to weekly compensation benefits to which

    Req. No. 11591                                               Page 10
1 the employee is otherwise entitled under the Administrative Workers'

2 Compensation Act.

3  7. During the period when an employee is actively and in good

4 faith being evaluated or participating in a retraining or job

5 placement program for purposes of evaluating permanent total

6 disability status, with the purpose and intention to return the

7 employee to substantial gainful employment and being monitored by a

8 qualified vocational expert from the Commission IME list, the

9 employee shall be entitled to receive benefits at the same rate as

10 the employee's temporary total disability benefits for an additional

11 fifty-two (52) weeks. Temporary total disability benefits are not

12 to exceed fifty-two (52) weeks for the duration the employee is

13 actively being evaluated for and/or participating in the program.

14 This benefit is in addition to the statutory maximums of paragraph 1

15 of subsection A of this section. If an administrative law judge

16 finds that an additional fifty-two (52) weeks of vocational

17 rehabilitation is necessary to restore the employee to substantial

18 gainful employment, benefits would continue under the same

19 provisions as the initial fifty-two (52) weeks. Continuation of

20 benefits shall be based upon a showing of active participation in

21 the program by clear and convincing evidence provided by the

22 vocational expert. The vocational expert shall submit regular

23 updates to the parties outlining the employee's participation in the

24 authorized vocational rehabilitation services. Updates for review

   Req. No. 11591                                                Page 11
1 are required to be submitted at least every thirteen (13) weeks.

2 Benefits are to conclude upon completion of any approved vocational

3 rehabilitation option. Any party may file a request to discontinue

4 benefits for noncompliance at any point during the vocational

5 rehabilitation period. Benefits shall not be terminated without an

6 order of the Commission after a hearing on the record. The

7 temporary total disability shall remain terminated until such time

8 as the employee complies with recommendations of the qualified

9 vocational expert. Notwithstanding the provisions of this

10 paragraph, benefits under this subsection shall be permanently

11 terminated by order of the Commission after a hearing on the record

12 if the employee is noncompliant, abandons participation in

13 vocational rehabilitation services, or if benefits under this

14 subsection have been suspended under this paragraph at least two

15 times.

16  All tuition related to vocational rehabilitation services shall

17 be paid by the employer or the employer's insurer on a periodic

18 basis directly to the facility providing the vocational

19 rehabilitation services or training to the employee.

20  F. Disfigurement.

21  1. If an injured employee incurs serious and permanent

22 disfigurement to any part of the body, the Commission may award

23 compensation to the injured employee in an amount not to exceed

24 Fifty Thousand Dollars ($50,000.00).

    Req. No. 11591                                                Page 12
1   2. No award for disfigurement shall be entered until twelve

2 (12) months after the injury unless the treating physician deems the

3 wound or incision to be fully healed.

4   3. An injured employee shall not be entitled to compensation

5 under this subsection if he or she receives an award for permanent

6 partial disability to the same part of the body.

7   G. Benefits for a single-event injury shall be determined by

8 the law in effect at the time of injury. Benefits for a cumulative

9 trauma injury or occupational disease or illness shall be determined

10 by the law in effect at the time the employee knew or reasonably

11 should have known that the injury, occupational disease or illness

12 was related to work activity. Benefits for death shall be

13 determined by the law in effect at the time of death.

14  SECTION 2.      AMENDATORY  85A O.S. 2021, Section 82, is

15 amended to read as follows:

16  Section 82. A. 1. a. Each party shall be responsible for

17              its legal services and litigation expenses. Fees for

18              legal services may be reviewed by the Workers'

19              Compensation Commission.

20  b. An attorney representing an injured employee may only

21              recover attorney fees up to ten percent (10%) of any

22              temporary total disability or temporary partial

23              disability compensation and twenty percent (20%) of

24              any permanent partial disability, permanent total

    Req. No. 11591                                               Page 13
1   disability, or death compensation awarded to an

2   injured employee by the Commission from a controverted

3   claim. If the employer makes a written offer to

4   settle permanent partial disability, permanent total

5   disability, or death compensation and that offer is

6   rejected, the employee's attorney may not recover

7   attorney fees in excess of thirty percent (30%) of the

8   difference between the amount of any award and the

9   settlement offer.

10  (1) Attorney fees may not be collected for recovery

11                  on noncontroverted claims.

12  (2) Attorney fees shall not be awarded on medical

13                  benefits or services.

14  (3) The fee for legal services rendered by an

15                  attorney representing an employee in connection

16                  with a change of physician requested by the

17                  injured employee, controverted by the employer,

18                  and awarded by the Commission, shall be Two

19                  Hundred Dollars ($200.00).

20  (4) Attorney fees may include not more than ten

21                  percent (10%) of the value, or reasonable

22                  estimate thereof, of vocational rehabilitation

23                  services cost of the totality of vocational

24                  rehabilitation services and the fees are to be

    Req. No. 11591                                               Page 14
1                   paid by the employer or the employer's insurer

2                   upon the employee's conclusion of vocational

3                   rehabilitation services.

4   c. A "controverted claim" means that the employer or the

5   employer's insurance carrier has controverted whether

6   there has been a compensable injury or whether the

7   employee is entitled to temporary total disability,

8   temporary partial disability, permanent partial

9   disability, permanent total disability, or death

10  compensation. A request for a change in physician

11  shall not trigger a controverted claim for purposes of

12  recovering any attorney fees except the fees under

13  division 3 of subparagraph b of this paragraph. A

14  controverted claim shall not exist if the employee or

15  his or her representative has withheld pertinent

16  information in his or her possession related to the

17  claim from the employer or has violated the provisions

18  of Section 6 of this title.

19  2. In any case where attorney fees are allowed by the

20 Commission, the limitations expressed in subparagraph b of paragraph

21 1 of this subsection shall apply.

22  3. Medical providers may voluntarily contract with the attorney

23 for the employee to recover disputed charges, and the attorney may

24 charge a reasonable fee for the cost of collection.

    Req. No. 11591                                         Page 15
1   B. An attorney representing an employee under this act may not

2 recover fees for services except as expressly provided in this

3 section.

4   SECTION 3. This act shall become effective November 1, 2025.

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6   60-1-11591      TKR  12/27/24

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    Req. No. 11591                                                Page 16