Oklahoma § 85-308 - Repealed by Laws 2013, c. 208, § 171, eff. Feb. 1, 2014

§ 85-308. Repealed by Laws 2013, c. 208, § 171, eff. Feb. 1, 2014

NOTE: Subsequent to repeal, this section was amended by Laws 2013,

c. 254, § 37 to read as follows:

As used in the Workers' Compensation Code:

1. "Actually dependent" means a surviving spouse, a child, or any other

person who receives one-half (1/2) or more of his or her support from the

employee;

2. "Administrator" means the Administrator of the Workers' Compensation

Court;

3. "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 that admits

compensability within twenty (20) days of the filing of the Employee's First

Notice of Accidental Injury and Claim for Compensation to the employee for

such disability claim, when the employer has made a written settlement offer

within thirty (30) days of the employee reaching maximum medical improvement;

4. "Brother" or "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 self-support, eighteen (18) years of age or over and

actually dependent and brothers and sisters by adoption;

5. "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 systematically monitoring the treatment rendered and the

medical progress of the injured or disabled worker; ensuring that any

treatment plan follows all appropriate treatment protocols, utilization

controls and practice parameters; assessing whether alternative health care

services are appropriate and delivered in a cost-effective manner based upon

acceptable medical standards; and ensuring that the injured or disabled

worker is following the prescribed health care plan;

6. "Case manager" means a person who is a registered nurse with a

current, active unencumbered license from the Oklahoma Board of Nursing, or

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:

Oklahoma Statutes - Title 85. Workers' Compensation

a.

Certified Disability Management Specialist (CDMS),

b.

Certified Case Manager (CCM),

c.

Certified Rehabilitation Registered Nurse (CRRN),

d.

Case Manager - Certified (CMC),

e.

Certified Occupational Health Nurse (COHN), or

f.

Certified Occupational Health Nurse Specialist (COHN-S);

7. "Certified workplace medical plan" means an organization of health

care providers or any other entity, certified by the State Commissioner of

Health, that is authorized to enter into a contractual agreement with a selfinsured 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 to provide medical care under the Workers' Compensation Code.

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 prepaid plans;

8. "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 daughter of

an employee eighteen (18) years of age or over who is physically or mentally

incapable of self-support; 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

twenty-three (23) years of age who is enrolled as a full-time 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;

9. "Claimant" means a person who claims benefits for an injury pursuant

to the provisions of the Workers' Compensation Code;

10.

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 act. A

compensable injury must be established by objective medical

evidence. The employee has the burden of proof to

establish by a preponderance of the evidence that such

unexpected or unforeseen injury was in fact caused by the

employment. There is no presumption from the mere

occurrence of such unexpected or unforeseen injury that the

injury was in fact caused by the employment.

b.

"Compensable injury" means a cardiovascular, coronary,

pulmonary, respiratory, or cerebrovascular accident or

myocardial infarction causing injury, illness, or death,

only if, in relation to other factors contributing to the

physical harm, a work-related activity is the major cause

of the physical harm. Such injury shall not be deemed to

be a compensable injury unless it is shown that the

exertion of the work necessary to precipitate the

disability or death was extraordinary and unusual in

comparison to the usual work of the employee, or

alternately, that some unusual incident occurred which is

found to have been the major cause of the physical harm.

Oklahoma Statutes - Title 85. Workers' Compensation

c.

"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; nor shall it include injury

incurred while engaging in or performing, or as the result

of engaging in or performing, any recreational or social

activities.

d.

"Compensable injury" includes personal property which is

established by objective medical evidence to be medically

necessary and which replaces or improves normal physical

function of the body, such as artificial dentures,

artificial limbs, glass eyes, eye glasses and other

prostheses which are placed in or on the body and is

damaged as a result of the injury.

e.

"Compensable injury" shall not include an injury resulting

directly or indirectly from idiopathic causes; any

contagious or infectious disease unless it arises out of

and occurs in the scope and course of employment; or death

due to natural causes occurring while the worker is at

work.

f.

"Compensable injury" shall not include mental injury that

does not arise directly as a result of a compensable

physical injury, except in the case of rape or other crime

of violence which arises out of and in the course of

employment;

11. "Compensation" means the money allowance payable to an employee as

provided for in the Workers' Compensation Code;

12. "Consequential injury" means injury or harm to a part of the body

that is a direct result of the injury or medical treatment to the part of the

body originally injured in the claim. The Court shall not make a finding of

a consequential injury unless it is established by objective medical evidence

that medical treatment for such part of the body is required;

13. "Continuing medical maintenance" means medical treatment that is

reasonable and necessary to maintain claimant's condition resulting from the

compensable injury or illness after reaching maximum medical improvement.

Continuing medical maintenance shall not include diagnostic tests, surgery,

injections, counseling, physical therapy, or pain management devices or

equipment, unless specifically authorized by the Workers' Compensation Court

in advance of such treatment;

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

15. "Cumulative trauma" means a compensable injury which is repetitive

in nature and engaged in over a period of time, the major cause of which

results from employment activities, and proved by objective medical evidence;

16. "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;

17. "Employee" means any person engaged in the employment of an employer

covered by the terms of the Workers' Compensation Code except for such

persons as may be excluded elsewhere in this act. Provided, any person

excluded as an employee may, if otherwise qualified, be eligible for benefits

under the Workers' Compensation Code if specifically covered by any policy of

insurance covering benefits under the Workers' Compensation Code. "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

Oklahoma Statutes - Title 85. Workers' Compensation

firefighter, peace officer or emergency management worker. "Employee" shall

also include a participant in a sheltered workshop program which is certified

by the United States Department of Labor;

18. "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 defined in this section. Employer may

also mean the employer's workers' compensation insurance carrier, if

applicable;

19. "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;

20. "Evidence-based" means expert-based, literature-supported and

outcomes validated by well-designed randomized trials when such information

is available and which uses the best available evidence to support medical

decision making;

21. "Gainful employment" means the capacity to perform employment for

wages for a period of time that is not part-time, occasional or sporadic;

22. "Grandchild" means a child of a child;

23. "Impaired self-insurer" means a private self-insurer or group selfinsurance association that fails to pay its workers' compensation

obligations, or is financially unable to do so and is the subject of any

proceeding under the Federal Bankruptcy Reform Act of 1978, and any

subsequent amendments or is the subject of any proceeding in which a

receiver, custodian, liquidator, rehabilitator, trustee or similar officer

has been appointed by a court of competent jurisdiction to act in lieu of or

on behalf of the self-insurer;

24. "Incapacity" means inadequate strength or ability to perform a workrelated task;

25. "Independent medical examiner" means a licensed physician authorized

to serve as a medical examiner pursuant to this act;

26. "Insurance carrier" shall include stock corporations, reciprocal or

interinsurance associations, or mutual associations with which employers have

insured, including CompSource Mutual Insurance Company, and employers

permitted to pay compensation directly under the provisions of Section 351 of

this title;

27. "Light duty" describes the status of an employee when a physician

has declared the employee available for work with specific temporary physical

restrictions;

28. "Major cause" means more than fifty percent (50%) of the resulting

injury, disease or illness. A finding of major cause shall be established by

a preponderance of the evidence. A finding that the workplace was not a

major cause of the injury, disease or illness shall not adversely affect the

exclusive remedy provisions of this act and shall not create a separate cause

of action outside of this act;

29. "Maximum medical improvement" means that no further material

improvement would reasonably be expected from medical treatment or the

passage of time;

30. "Medical treatment" means such medical, diagnostic, surgical or

other attendance or treatment, nurse and hospital service, medicine,

crutches, and apparatus as may be reasonable and necessary after the

compensable injury for an injured employee;

Oklahoma Statutes - Title 85. Workers' Compensation

31. "Nationally recognized" includes, but is not limited to, syntheses

of clinical issues that may take the form of published reports in the

scientific literature, national consensus documents, formalized documents

addressing standards of practice, practice parameters from professional

societies or commissions, and technology assessments produced by independent

evidence-based practice centers;

32. "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. Objective findings are those findings which cannot come

under the voluntary control of the patient. When determining physical or

anatomical impairment, neither a physician, any other medical provider, a

judge of the Workers' Compensation Court, nor the courts may consider

complaints of pain. For the purpose of making physical or anatomical

impairment ratings to the spine, physicians shall use criteria established by

the American Medical Association guides or modifications thereto as approved

by the Legislature. Objective evidence necessary to prove physical or

anatomical impairment in occupational hearing loss cases shall be established

by medically recognized and accepted clinical diagnostic methodologies,

including, but not limited to, audiological tests that measure air and bone

conduction thresholds and speech discrimination ability. Medical opinions

addressing compensability and permanent impairment must be stated within a

reasonable degree of medical certainty;

33. "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;

34. "Peer review" means the process of subjecting submitted manuscripts,

guidelines, or other clinical or scholarly work to the scrutiny of others who

are experts in the same field;

35. "Permanent partial impairment" means any anatomical abnormality or

loss of use after maximum medical improvement has been achieved which can be

evaluated by a physician. Any examining physician shall only evaluate

impairment in accordance with the method prescribed in Section 333 of this

title. All evaluations of permanent impairment must be supported by

objective medical evidence;

36. "Permanent total disability" means incapacity, because of accidental

injury or occupational disease, to earn 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;

37. "Private self-insurer" means a private employer that has been

authorized to self-insure its workers' compensation obligations pursuant to

Section 351 of this title, but does not include group self-insurance

associations authorized under Section 351 of this title or Section 398 of

this title, or any public employer that self-insures pursuant to Section 313

of this title;

38. "Prosthetic device" means an artificial device used to replace a

part or joint of the body that is lost or injured in an accident or illness

covered by this act;

39. "Qualified independent medical examiner" means a licensed medical

doctor or doctor of Osteopathy qualified to serve as an independent medical

examiner pursuant to this act;

Oklahoma Statutes - Title 85. Workers' Compensation

40. "Scheduled member" or "member" means hands, fingers, arms, legs,

feet, toes, and eyes. In addition, for purposes of the Multiple Injury Trust

Fund only, "scheduled member" means hearing impairment;

41. "Scientifically based" involves the application of rigorous,

systematic, and objective procedures to obtain reliable and valid knowledge

relevant to medical testing, diagnoses and treatment; is adequate to justify

the general conclusions drawn; and has been accepted by a peer-review journal

or approved by a panel of independent experts through a comparably rigorous,

objective, and scientific review;

42. "State-developed" includes formalized treatment guidelines developed

and adopted by state governments, or by the Workers' Compensation Court upon

recommendation of the Physician Advisory Committee;

43. "State's average weekly wage" means the average weekly wage in this

state determined by the Oklahoma Employment Security Commission annually,

which shall be used to establish maximum benefits under the Workers'

Compensation Code for injuries occurring during a one-year period, which

period shall begin on the first day of November after publication by the

Oklahoma Employment Security Commission. For the purpose of computing

benefits payable under the Workers' Compensation Code, the state's average

weekly wage shall be rounded to the nearest dollar;

44. "Subcontractor" means a person, firm, corporation or other legal

entity hired by the general or prime contractor to perform a specific task

for the completion of a work-related activity;

45. "Surgery" does not include an injection, or the forcing of fluids

beneath the skin, for treatment or diagnosis;

46. "Surviving spouse" means the employee's spouse by reason of a legal

marriage recognized by any state or nation or by common law, under the

requirements of a common law marriage in this state, as determined by the

Workers' Compensation Court;

47. "Temporary partial disability" describes the status of an injured

worker who is under active medical care that is expected to improve his or

her condition and who is unable to perform some of the normal activities of

his or her work or is limited to a portion of his or her normal hours of

employment;

48. "Treating physician" means the licensed physician authorized to

provide active medical treatment for an injured worker; and

49. "Wages" means money compensation received for employment at the time

of the injury, including the reasonable value of board, rent, housing,

lodging, bonuses, sales commissions, or similar advantage received from the

employer.