§ 85A-45. Temporary Total Disability - Temporary Partial Disability - Permanent Partial Disability - Permanent Total Disability.

A.  Temporary Total Disability.

1.  If the injured employee is temporarily unable to perform his or her job or any alternative work offered by the employer, he or she shall be entitled to receive compensation equal to seventy percent (70%) of the injured employee's average weekly wage, but not to exceed seventy percent (70%) of the state average weekly wage, for one hundred four (104) weeks.  Provided, there shall be no payment for the first three (3) days of the initial period of temporary total disability.  If an administrative law judge finds that a consequential injury has occurred and that additional time is needed to reach maximum medical improvement, temporary total disability may continue for a period of not more than an additional fifty-two (52) weeks.  Such finding shall be based upon a showing of medical necessity by clear and convincing evidence.

2.  When the injured employee is released from active medical treatment by the treating physician for all body parts found by the Commission to be injured, or in the event that the employee, without a valid excuse, misses three consecutive medical treatment appointments, fails to comply with medical orders of the treating physician, or otherwise abandons medical care, the employer shall be entitled to terminate temporary total disability by notifying the employee, or if represented, his or her counsel.  If, however, an objection to the termination is filed by the employee within ten (10) days of termination, the Commission shall set the matter within twenty (20) days for a determination if temporary total disability compensation shall be reinstated.  The temporary total disability shall remain terminated unless the employee proves the existence of a valid excuse for his or her failure to comply with medical orders of the treating physician or his or her abandonment of medical care.  The administrative law judge may appoint an independent medical examiner to determine if further medical treatment is reasonable and necessary.  The independent medical examiner shall not provide treatment to the injured worker, unless agreed upon by the parties.

B.  Temporary Partial Disability.

1.  If the injured employee is temporarily unable to perform his or her job, but may perform alternative work offered by the employer, he or she shall be entitled to receive compensation equal to the greater of seventy percent (70%) of the difference between the injured employee's average weekly wage before the injury and his or her weekly wage for performing alternative work after the injury, but only if his or her weekly wage for performing the alternative work is less than the temporary total disability rate.

2.  Compensation under this subsection may not exceed fifty-two (52) weeks.

3.  If the employee refuses to perform the alternative work offered by the employee, he or she shall not be entitled to benefits under subsection A of this section or under this section.

C.  Permanent Partial Disability.

1.  A permanent partial disability award or combination of awards granted an injured worker may not exceed a permanent partial disability rating of one hundred percent (100%) to any body part or to the body as a whole.  The determination of permanent partial disability shall be the responsibility of the Commission through its administrative law judges.  Any claim by an employee for compensation for permanent partial disability must be supported by competent medical testimony of a medical doctor, osteopathic physician, or chiropractor, and shall be supported by objective medical findings, as defined in this act.  The opinion of the physician shall include employee's percentage of permanent partial disability and whether or not the disability is job-related and caused by the accidental injury or occupational disease.  A physician's opinion of the nature and extent of permanent partial disability to parts of the body other than scheduled members must be based solely on criteria established by the current edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment".  A copy of any written evaluation shall be sent to both parties within seven (7) days of issuance.  Medical opinions addressing compensability and permanent disability must be stated within a reasonable degree of medical certainty.  Any party may submit the report of an evaluating physician.

2.  Permanent partial disability shall not be allowed to a part of the body for which no medical treatment has been received.  A determination of permanent partial disability made by the Commission or administrative law judge which is not supported by objective medical findings provided by a treating physician who is a medical doctor or doctor of osteopathy or a qualified independent medical examiner shall be considered an abuse of discretion.

3.  The examining physician shall not deviate from the Guides except as may be specifically provided for in the Guides.

4.  In cases of permanent partial disability, the compensation shall be seventy percent (70%) of the employee’s average weekly wage, not to exceed Three Hundred Twenty-three Dollars ($323.00) per week, for a term not to exceed a total of three hundred fifty (350) weeks for the body as a whole.

5.  Except pursuant to settlement agreements entered into by the employer and employee, payment of a permanent partial disability award shall be deferred and held in reserve by the employer or insurance company if the employee has reached maximum medical improvement and has been released to return to work by his or her treating physician, and then returns to his pre-injury or equivalent job for a term of weeks determined by dividing the total dollar value of the award by seventy percent (70%) of the employee’s average weekly wage.

a.The amount of the permanent partial disability award shall be reduced by seventy percent (70%) of the employee’s average weekly wage for each week he works in his pre-injury or equivalent job.

b.If, for any reason other than misconduct as defined in Section 2 of this act, the employer terminates the employee or the position offered is not the pre-injury or equivalent job, the remaining permanent partial disability award shall be paid in a lump sum.  If the employee is discharged for misconduct, the employer shall have the burden to prove that the employee engaged in misconduct.

c.If the employee refuses an offer to return to his pre-injury or equivalent job, the permanent partial disability award shall continue to be deferred and shall be reduced by seventy percent (70%) of the employee’s average weekly wage for each week he refuses to return to his pre-injury or equivalent job.

d.Attorney fees for permanent partial disability awards, as approved by the Commission, shall be calculated based upon the total permanent partial disability award and paid in full at the time of the deferral.

e.Assessments pursuant to Sections 31, 98, 112 and 165 of this act shall be calculated based upon the amount of the permanent partial disability award and shall be paid at the time of the deferral.

6.  Previous Disability:  The fact that an employee has suffered previous disability or received compensation therefor shall not preclude the employee from compensation for a later accidental personal injury or occupational disease.  In the event there exists a previous permanent partial disability, including a previous non-work-related injury or condition which produced permanent partial disability and the same is aggravated or accelerated by an accidental personal injury or occupational disease, compensation for permanent partial disability shall be only for such amount as was caused by such accidental personal injury or occupational disease and no additional compensation shall be allowed for the preexisting disability or impairment.  Any such reduction shall not apply to temporary total disability, nor shall it apply to compensation for medical treatment.

a.If workers' compensation benefits have previously been awarded through settlement or judicial or administrative determination in Oklahoma, the percentage basis of the prior settlement or award shall conclusively establish the amount of permanent partial disability determined to be preexisting.  If workers' compensation benefits have not previously been awarded through settlement or judicial or administrative determination in Oklahoma, the amount of preexisting permanent partial disability shall be established by competent evidence.

b.In all cases, the applicable reduction shall be calculated as follows:

(1)if the preexisting impairment is the result of injury sustained while working for the employer against whom workers' compensation benefits are currently being sought, any award of compensation shall be reduced by the current dollar value attributable under the Administrative Workers' Compensation Act to the percentage of permanent partial disability determined to be preexisting.  The current dollar value shall be calculated by multiplying the percentage of preexisting permanent partial disability by the compensation rate in effect on the date of the accident or injury against which the reduction will be applied, and

(2)in all other cases, the employer against whom benefits are currently being sought shall be entitled to a credit for the percentage of preexisting permanent partial disability.

7.  No payments on any permanent partial disability order shall begin until payments on any preexisting permanent partial disability orders have been completed.

8.  The whole body shall represent a maximum of three hundred fifty (350) weeks.

9.  The permanent partial disability rate of compensation for amputation or permanent total loss of use of a scheduled member specified in Section 46 of this act shall be seventy percent (70%) of the employee’s average weekly wage, not to exceed Three Hundred Twenty-three Dollars ($323.00), multiplied by the number of weeks set forth for the member in Section 46 of this act, regardless of whether the injured employee is able to return to his or her pre-injury or equivalent job.

10.  An injured employee who is eligible for permanent partial disability under this subsection shall be entitled to receive vocational rehabilitation services provided by a technology center or public secondary school offering vocational-technical education courses, or a member institution of The Oklahoma State System of Higher Education, which shall include retraining and job placement to restore the employee to gainful employment.  Vocational rehabilitation services or training shall not extend for a period of more than fifty-two (52) weeks.

D.  Permanent Total Disability.

1.  In case of total disability adjudged to be permanent, seventy percent (70%) of the employee's average weekly wages, but not in excess of the state's average weekly wage, shall be paid to the employee during the continuance of the disability until such time as the employee reaches the age of maximum Social Security retirement benefits or for a period of fifteen (15) years, whichever is longer.  In the event the claimant dies of causes unrelated to the injury or illness, benefits shall cease on the date of death.  Provided, however, any person entitled to revive the action shall receive a one-time lump-sum payment equal to twenty-six (26) weeks of weekly benefits for permanent total disability awarded the claimant.  If more than one person is entitled to revive the claim, the lump-sum payment shall be evenly divided between or among such persons.  In the event the Commission awards both permanent partial disability and permanent total disability benefits, the permanent total disability award shall not be due until the permanent partial disability award is paid in full.  If otherwise qualified according to the provisions of this act, permanent total disability benefits may be awarded to an employee who has exhausted the maximum period of temporary total disability even though the employee has not reached maximum medical improvement.

2.  The Commission shall annually review the status of any employee receiving benefits for permanent total disability against the last employer.  The Commission shall require the employee to annually file an affidavit under penalty of perjury stating that he or she is not and has not been gainfully employed and is not capable of gainful employment.  Failure to file such affidavit shall result in suspension of benefits; provided, however, reinstatement of benefits may occur after proper hearing before the Commission.

E.  1.  The Workers’ Compensation Commission shall hire or contract for a Vocational Rehabilitation Director to oversee the vocational rehabilitation program of the Commission.

2.  The Vocational Rehabilitation Director shall help injured workers return to the work force.  If the injured employee is unable to return to his or her pre-injury or equivalent position due to permanent restrictions as determined by the treating physician, upon the request of either party, the Vocational Rehabilitation Director shall determine if it is appropriate for a claimant to receive vocational rehabilitation training or services, and will oversee such training.  If appropriate, the Vocational Rehabilitation Director shall issue administrative orders, including, but not limited to, an order for a vocational rehabilitation evaluation for any injured employee unable to work for at least ninety (90) days.  In addition, the Vocational Rehabilitation Director may assign injured workers to vocational rehabilitation counselors for coordination of recommended services.  The cost of the services shall be paid by the employer.  All administrative orders are subject to appeal to the full Commission.

3.  There shall be a presumption in favor of ordering vocational rehabilitation services or training for an eligible injured employee under the following circumstances:

a.if the employee’s occupation is truck driver or laborer and the medical condition is traumatic brain injury, stroke or uncontrolled vertigo,

b.if the employee’s occupation is truck driver or laborer performing high-risk tasks and the medical condition is seizures,

c.if the employee’s occupation is manual laborer and the medical condition is bilateral wrist fusions,

d.if the employee’s occupation is assembly-line worker and the medical condition is radial head fracture with surgical excision,

e.if the employee’s occupation is heavy laborer and the medical condition is myocardial infarction with congestive heart failure,

f.if the employee’s occupation is heavy manual laborer and the medical condition is multilevel neck or back fusions greater than two levels,

g.if the employee’s occupation is laborer performing overhead work and the medical condition is massive rotator cuff tears, with or without surgery,

h.if the employee’s occupation is heavy laborer and the medical condition is recurrent inguinal hernia following unsuccessful surgical repair,

i.if the employee’s occupation is heavy manual laborer and the medical condition is total knee replacement or total hip replacement,

j.if the employee’s occupation is roofer and the medical condition is calcaneal fracture, medically or surgically treated,

k.if the employee’s occupation is laborer of any kind and the medical condition is total shoulder replacement,

l.if the employee’s occupation is laborer and the medical condition is amputation of a hand, arm, leg, or foot,

m.if the employee’s occupation is laborer and the medical condition is tibial plateau fracture, pilon fracture,

n.if the employee’s occupation is laborer and the medical condition is ankle fusion or knee fusion,

o.if the employee’s occupation is driver or heavy equipment operator and the medical condition is unilateral industrial blindness, or

p.if the employee’s occupation is laborer and the medical condition is 3-, 4-, or 5-level positive discogram of the cervical spine or lumbar spine, medically treated.

4.  Upon the request of either party, or by order of an administrative law judge, the Vocational Rehabilitation Director shall assist the Workers' Compensation Commission in determining if it is appropriate for a claimant to receive vocational rehabilitation training or services.  If appropriate, the administrative law judge shall refer the employee to a qualified expert for evaluation of the practicability of, need for and kind of rehabilitation services or training necessary and appropriate in order to restore the employee to gainful employment.  The cost of the evaluation shall be paid by the employer.  Following the evaluation, if the employee refuses the services or training ordered by the administrative law judge, or fails to complete in good faith the vocational rehabilitation training ordered by the administrative law judge, then the cost of the evaluation and services or training rendered may, in the discretion of the administrative law judge, be deducted from any award of benefits to the employee which remains unpaid by the employer.  Upon receipt of such report, and after affording all parties an opportunity to be heard, the administrative law judge shall order that any rehabilitation services or training, recommended in the report, or such other rehabilitation services or training as the administrative law judge may deem necessary, provided the employee elects to receive such services, shall be provided at the expense of the employer.  Except as otherwise provided in this subsection, refusal to accept rehabilitation services by the employee shall in no way diminish any benefits allowable to an employee.

5.  The administrative law judge may order vocational rehabilitation before the injured employee reaches maximum medical improvement, if the treating physician believes that it is likely that the employee's injury will prevent the employee from returning to his or her former employment.  In granting early benefits for vocational rehabilitation, the Commission shall consider temporary restrictions and the likelihood that such rehabilitation will return the employee to gainful employment earlier than if such benefits are granted after the permanent partial disability hearing in the claim.

6.  Vocational rehabilitation services or training shall not extend for a period of more than fifty-two (52) weeks.  A request for vocational rehabilitation services or training shall be filed with the Commission by an interested party not later than sixty (60) days from the date of receiving permanent restrictions that prevent the injured employee from returning to his or her pre-injury or equivalent position.

7.  If rehabilitation requires residence at or near the facility or institution which is away from the employee's customary residence, reasonable cost of the employee's board, lodging, travel, tuition, books and necessary equipment in training shall be paid for by the insurer in addition to weekly compensation benefits to which the employee is otherwise entitled under the Administrative Workers' Compensation Act.

8.  During the period when an employee is actively and in good faith being evaluated or participating in a retraining or job placement program for purposes of evaluating permanent total disability status, the employee shall be entitled to receive benefits at the same rate as the employee's temporary total disability benefits for an additional fifty-two (52) weeks.  All tuition related to vocational rehabilitation services shall be paid by the employer or the employer's insurer on a periodic basis directly to the facility providing the vocational rehabilitation services or training to the employee.  The employer or employer’s insurer may deduct the amount paid for tuition from compensation awarded to the employee.

F.  Disfigurement.

1.  If an injured employee incurs serious and permanent disfigurement to any part of the body, the Commission may award compensation to the injured employee in an amount not to exceed Fifty Thousand Dollars ($50,000.00).

2.  No award for disfigurement shall be entered until twelve (12) months after the injury.

3.  An injured employee shall not be entitled to compensation under this subsection if he or she receives an award for permanent partial disability to the same part of the body.

G.  Benefits for a single-event injury shall be determined by the law in effect at the time of injury.  Benefits for a cumulative trauma injury or occupational disease or illness shall be determined by the law in effect at the time the employee knew or reasonably should have known that the injury, occupational disease or illness was related to work activity.  Benefits for death shall be determined by the law in effect at the time of death.

Added by Laws 2013, c. 208, § 45, eff. Feb. 1, 2014.