Yesterday, the Oklahoma Supreme Court issued another decision interpreting Oklahoma’s Administrative Workers’ Compensation Act (“AWCA”). In Gibby v. Hobby Lobby Stores Inc., 2017 OK 78, the Court addressed the constitutionality of 85A O.S. § 57, a provision which denies further benefits if a Claimant misses two (2) or more medical appointments without a valid excuse. Please find our summary of the Court’s holding below:
Facts of the Case
On February 12, 2014, Claimant sustained injury when he fell from a pallet jack. The Employer admitted injury and provided indemnity and medical benefits. During his treatment, Claimant failed to appear for a scheduled medical appointment with the initial treating physician. Claimant did not call ahead to cancel the appointment. Claimant’s testimony was that he overslept, missing the scheduled appointment. Claimant later utilized his Form A change of physician and was sent for treatment with Dr. Janssen. Claimant began receiving treatment from Janssen and later missed another appointment. Dr. Janssen’s chart indicated Claimant was a ‘no-show’. Claimant later missed several other appointments with Dr. Janssen, failing to call, cancel and/or reschedule ahead of time. Janssen’s records indicate Claimant had multiple no-shows, a total of four, and assumed Claimant’s knee must be fine. Dr. Janssen then released Claimant from medical treatment to MMI. Based on Claimant’s missed appointments, Respondent filed a motion requesting all benefits be terminated, pursuant to 85A O.S. § 57.
Subsequently, Claimant filed for PPD and was evaluated by each Party’s retained physician. The case proceeded to PPD hearing with Claimant as the only witness. Thereafter, the ALJ entered an Order denying PPD, finding that Claimant admitted missing three (3) medical appointments for treatment without valid excuse. The ALJ found no extraordinary circumstances for Claimant’s failure to appear for treatment and relied on the provisions of 85A O.S. § 57 to deny Claimant any further benefit, specifically PPD.
Statutory Provision At Issue
85A O.S. § 57 provides as follows:
Failure to appear for scheduled appointments.
- If an injured employee misses two or more scheduled appointments for treatment, he or she shall no longer be eligible to receive benefits under this act, unless his or her absence was:
- Caused by extraordinary circumstances beyond the employee’s control as determined by the Commission; or
- The employee gave the employer at least two (2) hours prior notice of the absence and had a valid excuse.
- Inability to get transportation to or from the appointment shall not be considered extraordinary circumstances nor a valid excuse for the absence.
Justice Colbert provided the majority opinion, ultimately finding 85A O.S. § 57 to be unconstitutional. The Court referred to Section 57 as a ‘forfeiture’ provision, meaning a claimant’s failure to appear for scheduled medical appointments forfeited all rights to any further benefit. The Court found that Section 57 violated Article II, Section 6 of the Oklahoma Constitution, providing the courts ‘shall be open to every person, and a speedy and certain remedy afforded for every wrong’. The Court provided a discussion of the historical framework giving rise to workers’ compensation systems and the ‘Grand Bargain’ struck between injured workers and employers. Under the ‘Grand Bargain’, the employee surrendered the remedy of an action for negligence in District Court for a no-fault guarantee of medical treatment and wage benefits. The employer surrendered effective common law defenses in exchange for certainty of liability/financial exposure.
The Court determined that Section 57 lies outside the parameters of the ‘Grand Bargain’ and divests injured workers of vested rights/benefits upon the occurrence of injury. Justice Colbert makes clear that taking away a vested benefit, based on the employee’s fault in missing appointments, is improper in a no-fault system. The Court pronounced that Section 57 is now stricken in its entirety. Rather, the Court finds that 85A O.S. § 50(H)(12) provides the employer’s remedy moving forward. In that provision, missed medical appointments are addressed as follows:
Failure to provide medical treatment – Medical examination – Fee schedule – Formulary.
- Fee Schedule
- If an employee fails to appear for a scheduled appointment with a physician, the employer or insurance company shall pay to the physician a reasonable charge, to be determined by the Commission, for the missed appointment. In the absence of a good-faith reason for missing the appointment, the Commission shall order the employee to reimburse the employer or insurance company for the charge.
The Court notes this provision is the same employer remedy found under the prior Workers’ Compensation Code. Moving forward, Section 50(H)(12) is now the controlling statutory provision for missed physician appointments under the AWCA.
Recommendations Moving Forward
Ultimately, the Court’s decision has effectively returned us to the prior Code on the issue of missed medical appointments. As before, it will be important to be proactive in securing documentation from medical providers demonstrating the injured workers’ failure to appear for appointments. If any charge or penalty is incurred for these missed appointments, we will also need to be proactive in securing documentation identifying such penalties/charges and seek reimbursement from the Claimant. In practice this reimbursement will likely take the form of a credit against PPD at final hearing. Just like a TTD overpayment, it will be important to assert these charges at final hearing to ensure all funds and credits are rightly returned to the employers and insurers of this state.
If we can be of further assistance on these or any other such issues, please do not hesitate to contact us.