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Workers' compensation cases are down, costs are up [Tulsa World, Okla.]

By Ziva Branstetter and Curtis Killman, Tulsa World, Okla.
McClatchy-Tribune Information Services

Dec. 23-- The total amount of money injured workers received increased 26 percent over the past five years in cases reaching Oklahoma's Workers' Compensation Court, a Tulsa World review has found.

That increase cost employers and their insurers $76.6 million more last year than they paid in 2007, the World's analysis shows.

But figuring out the reason behind the costly increase is a challenge.

Depending on whom you ask, the increase in total awards is variously the fault of state lawmakers, judges, employers, attorneys, insurance companies or escalating medical costs.

Injured workers often also get the blame for an allegedly broken system. Some critics believe that most workers who file claims are feigning injury to collect fat paychecks and sit at home.

Thomas Layon, a Tulsa attorney who has represented injured workers for more than three decades, called such tales "apocryphal" but not a fair representation of the system. Records back up his assertion.

The state Attorney General's Office filed about 60 cases over the past three years against workers for compensation fraud. That's far less than 1 percent of all cases filed by employees with the court during that time, records show.

The state's Workers' Compensation Court system handles only a fraction of all claims, about two in 10, although they are often the most serious and expensive. The rest are handled privately, between workers and their employers.

Senate President Pro Tem Brian Bingman said the Legislature has made reform of the workers' comp system its No. 1 priority again. Reforms passed last year aren't working, and the state's high workers' comp insurance rates are driving business away from the state, he said.

Others who are part of the system, including a judge, questioned Bingman's conclusion that the 2011 reforms aren't working.

"Nothing works in a year completely," said Vice Presiding Judge Eric Quandt, one of three judges assigned to Tulsa. "We haven't even heard a fraction of the cases under the new changes."

Brad McClure, an Oklahoma City attorney who represents employers, said he is concerned when he hears talk about doing away with the kind of court system Oklahoma has to compensate injured workers, as some lawmakers have suggested.

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"This goes back to the days of Moses. If you injure someone, they are supposed to be compensated," McClure said. "My job is to make sure the injured worker doesn't get a penny more than they are entitled to."

Jobs 'tear up your body'

The World reviewed computerized data covering more than 73,000 cases filed in the court system from Jan. 1, 2007, through Dec. 31, 2011. Cases named more than 18,000 employers and ranged in size from several cases filed against the Tulsa Talons seeking no money to the largest single award: $897,835 involving an employee of a steel fabricating company in Oklahoma City.

The World's review shows the median award in Oklahoma's court system between 2007 and 2011 was $14,450.

Michael Clingman, Oklahoma's longtime court administrator, said the court is designed to be a benefit delivery system, not an adversarial one where parties contest all facts.

On a recent December morning, Teresa Laney waited her turn in the busy lobby of Tulsa's Workers' Compensation Court at 440 S. Houston Ave. Laney -- a frail, 100-pound woman wearing a red sweatshirt, jeans and a brace on her right arm -- is 54. She said she worked for about five years as a custodian for Cushing Public Schools.

Laney's claims state that in 2010 she injured her chest in a fall and last year she injured both hands, arms, right shoulder and neck. She said she hasn't been able to work since her most recent injuries on the job.

Laney said she has no insurance and has had no surgery or pain medication for the injuries she suffered.

She represented herself in the first case and received a $3,000 settlement and is now represented by an attorney, Craig Armstrong, in her second case.

She said she was pressured by the district into leaving her job. The school district's attorney could not be reached for comment.

Laney said she gets by with help from friends and has applied for Social Security disability. While working, Laney made about $329 a week, about 165 percent of the federal poverty level.

"People need to realize that a lot of these jobs, they tear up your body," Laney said.

Laney was accompanied to court earlier this month by friend JoAnne McCoy, who said she went through the experience years ago as a custodian for Cushing Public Schools. McCoy said she had a good experience in the system, but seven surgeries on her hands left her unable to work.

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"I can't do anything now. I can't work. I can't drive. I had to take pain pills just to get here today," McCoy said.

Reforms 'ignored,' 'thrown out'

For years, state lawmakers and employers have lamented the state's relatively high cost of workers' compensation insurance.

State Chamber and legislative leaders say judges have inflated the system's cost by striking down reforms. State courts have indeed ruled portions of laws dealing with workers' compensation unconstitutional in recent years.

"We keep on reforming the system, but we keep on allowing the same judges ... to tell us what's constitutional and what's not," said Mike Seney, senior vice president for policy analysis and strategic planning for the State Chamber.

"Every time there's a reform, either the court ignores the reforms or they throw them out," Seney said. "What we are looking at is a system that has grown over the years to become one of the most, if not the most, litigious in the country."

But Judge Quandt points to figures that show a significant drop in caseloads.

The number of employees filing claims fell more than 40 percent in the past 20 years, from about 24,700 to 14,000, records show. The rate of claims filed per worker fell also, from about 2 claims per 100 workers in 1992 to less than 1 claim per 100 workers, records show.

In almost every other category, activity in the workers' compensation system declined -- except that employers are apparently less willing to settle cases.

The World's analysis shows the same pattern that alarms lawmakers: a steady and expensive growth in total awards to injured workers.

Other patterns found in the World's data:

--Four of the top 10 employers in terms of the amount of total awards to injured workers were government agencies, including the cities of Tulsa and Oklahoma City. The city of Tulsa has been criticized for lacking a comprehensive safety program and for its relatively high workers' comp costs.

Tulsa has nearly 600 fewer city workers than Oklahoma City and almost identical workers' comp costs from 2007 through 2011: $16.9 million for both, the World's review shows.

--Not surprisingly, large companies -- including Wal-Mart, Tulsa'sAmerican Airlines and Lawton'sGoodyear Tire & Rubber Co. -- topped the list of employers with the highest amount of workers' compensation awards during the five years.

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Wal-Mart is the No. 2 employer in the state, just behind the state of Oklahoma, with both employing about 35,000 workers, according to an Oklahoma Commerce Department report.

Businesses differ in risk and other factors that drive injuries. Companies with aggressive safety programs also tend to experience lower injury rates, experts interviewed by the World said.

--Some employers on the top 10 list of total awards were small, but their employees performed risky work. Lumber company Weyerhaeuser Co., based in southeast Oklahoma, has only about 150 employees yet ranked sixth in total awards during the five years.

The World's data did not include death benefits, injury dates, workers' names or case numbers due to a state law requiring that personal identifiers be redacted.

'Better than the lottery'

Seney believes reforms to the workers' compensation system haven't been radical enough and amount to "nibbling around the edges."

He said legislation in the upcoming legislative session could, for example, allow employers to opt completely out of the workers' comp system.

Seney said employers have no interest in denying legitimate claims. "We want to get these workers fixed, healed and back to work as soon as possible," he said.

"I think what we need is to provide options for the employer out there -- different ways to resolve disputes. ... This is better than the lottery if you think about it. There's a better chance of winning, and it's nontaxable."

He said an administrative court system would work better than Oklahoma's "court of record" system. The state is one of only a few with such a system.

But Clingman disagrees.

"If you look at the top 10 costliest systems in the country, they are all administrative courts. When I was the court administrator in 1991, it was about a $900 million system. Twenty-two years later it's still a $900 million system. In real terms, it's actually 50 percent cheaper than it was 20 years ago," he said.

The same lawmakers complaining about the system could have fixed it at any time, Clingman, Quandt and others say.

"It is very surprising that the Legislature let benefits increase that dramatically while all the while calling for reform to reduce costs," said Clingman, who ran Oklahoma's workers' comp court from 1985 through 1991 and was appointed for a second term two years ago.

Lawmakers froze just one key pay rate -- for permanent partial disability -- last year. That rate is the main driver of the system's cost. Weekly pay rates for two types of disability payments increased 24 percent and 12 percent during the past five years, records show.

Those rates are derived from a formula based on the employee's average weekly pay. Pay for injured workers varies depending on the type of disability and is capped at a percentage of the state's average weekly wage.

Bingman said he is unaware of the facts surrounding the escalating rates or the Legislature's role in setting them. He said he also didn't know that four of the top 10 employers in total awards during the past five years were government entities.

"I think any business -- the state included -- can always do better, and certainly in the policy areas we need to take a good look at that ... to ensure the safety of the workers," he said.

Workers' comp awards 2007-11

Employer *Total awards in millions **Estimated number of employees

Wal Mart Stores Inc.$34.6 32,000

American Airlines Inc.$23.2 7,000

City of Oklahoma City$16.9 4,500

City of Tulsa$16.9 3,900

Goodyear Tire & Rubber Co$14.3 2,500

Weyerhaeuser Co.$13.4 150

Department of Human Services$12.9 7,600

Department of Corrections$10.3 4,200

Dayton Tire & Rubber Co.$9.9 1,700

Michelin North America Inc.$9.5 1,700

*Amounts have been rounded in both categories.

*--State of Oklahoma is state's no. 1 employer

Source: Tulsa World analysis of Workers' Compensation Court data, state of Oklahoma and company websites

Alphabet soup

Acronyms for many processes and conditions dominate Oklahoma's Workers' Compensation Court system. Everything from the type of hearing a worker can request to the type of expert a judge can appoint is known by an acronym. Here are a few of the most common abbreviations and what they mean:

IME: An independent medical examiner can be appointed in cases in which the judge wants a neutral medical professional's opinion on a worker's injuries.

PHC: A pre-hearing conference is one of two types of common hearings in Workers' Compensation Court. The other kind of a hearing is a trial.

PPD: Permanent partial disability is one of five types of disability benefits an injured worker or his family may receive, including death benefits. Judges determine, based on evidence and testimony, what percentage of total impairment the injured worker has to one or more body parts.

PTD: Permanent total disability occurs in the relatively rare cases where an employee cannot return to any kind of work due to a work-related injury.

TTD: Total temporary disability occurs when a doctor certifies that an employee can't work due to a work-related injury. The employee must be receiving treatment from a doctor designed to improve his or her condition. Employees can be released by their doctors to return to work with or without restrictions when they've reached "MMI," or maximum medical improvement.

TPD: Temporary partial disability occurs when an employee has been released by his or her doctor to return to work on a restricted basis. The benefit makes up the loss to an employee, for example, who is only allowed to work a few hours a day or a few days a week.

Source: Oklahoma Workers' Compensation Court

Ziva Branstetter 918-581-8306

[email protected]

Curtis Killman 918-581-8471

[email protected]


(c)2012 Tulsa World (Tulsa, Okla.)

Visit Tulsa World (Tulsa, Okla.) at

Distributed by MCT Information Services

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