STATE OF OKLAHOMA

1st Session of the 54th Legislature (2013)

HOUSE BILL 1982	By:	Brumbaugh

AS INTRODUCED

An Act relating to workers’ compensation; amending 85 O.S. 2011, Sections 303, as amended by Section 1074, Chapter 304, O.S.L. 2012, 305, 306, 307, 308, 310, 311, 312, 314, 318, 319, 321, 323, 324, 326, 327, 328, 329, 330, 332, 333, 334, 335, 336, 337, 338, 339, 340, 342, 343, 344, 345, 346, 347, 348, 350, 351, 356, 358, 359, 360, 362, 363, 366, 367, 368, 369, 370, as amended by Section 1077, Chapter 304, O.S.L. 2012, 371, 372, 373, 374, 398, 399, 402, 403, as amended by Section 1082, Chapter 304, O.S.L. 2012, 405, 406, 407, 408, 409, 410, as last amended by Section 1, Chapter 254, O.S.L. 2012 and 412, as amended by Section 1083, Chapter 304, O.S.L. 2012 (85 O.S. Supp. 2012, Sections 303, 370, 403, 410 and 412), which relate to the Workers’ Compensation Code; creating the Workers’ Compensation Court of Existing Claims; providing for composition of the Court; providing jurisdiction, duties and authority of the Court; updating statutory references to reflect transfer of authority and duties from the Workers’ Compensation Court to the Workers’ Compensation Court of Existing Claims and the Workers’ Compensation Commission; creating the Workers’ Compensation Commission and providing duties and powers therefor; updating statutory references to reflect transfer of duties from the Administrator of the Workers’ Compensation Court to the Administrator of the Workers’ Compensation Commission; creating certain personnel positions under the jurisdiction of the Workers’ Compensation Commission; providing for regional administrative law judges; providing venue for certain conferences and hearings; authorizing the Governor to remove members of the Workers’ Compensation Commission from office under certain circumstances and providing procedure therefor; requiring the Commissioners to take an oath; requiring the Commission to maintain an office in Oklahoma City; authorizing sessions and hearings at other locations; providing for a seal; providing for travel reimbursement; providing duties and powers of the Workers’ Compensation Commission; modifying and adding definitions; expanding exceptions from the Workers’ Compensation Code; providing penalty for failure to comply with certain requirements; requiring certain notifications and postings of notices; providing for certain waivers; providing implied consent for testing for presence of certain substances; providing for medical, rehabilitation and disability benefits; prohibiting consideration of aging and effects of aging on a compensable injury; providing for compensation to alien nonresident dependents with certain limitations; requiring drug and alcohol testing to be conducted by certain personnel; providing that claims for injuries that occurred before a certain date shall be under the jurisdiction of the Workers’ Compensation Court of Existing Claims and that claims for injuries on or after a certain date shall be under the jurisdiction of the Workers’ Compensation Commission; providing for surgically-treated claims; providing notification and reporting procedures for claims for injuries occurring after certain date; requiring employers to keep record of certain injuries; authorizing the adoption of rules pertaining to reports and filing of reports; requiring notification of modified duty opportunities; providing that decision regarding benefits is final in the absence of timely appeal and is binding during pendency of appeal; modifying determination of duration of medical treatment; providing that employer is not liable for payments if injury is not compensable; modifying period that insured may contract independently with certified workplace medical plan if insurer fails to contract with or provide access to such a plan; requiring state agencies to adopt and implement certified workplace plans by certain date; requiring employees to obtain certain written confirmation prior to seeking legal relief; providing dispute resolution process; providing that certain medical evaluations are not admissible; prohibiting the Commission from altering course of treatment under a certified workplace medical plan unless certain evidence is found; establishing a Workers’ Health and Safety Division within the Oklahoma Department of Labor; providing duties and authority of the Division, the Commissioner of Labor, the Insurance Commissioner and the Workers’ Compensation Commission; providing for a job safety information system; providing for an extrahazardous employer program; requiring accident prevention services; providing immunity from certain liability; providing that independent cause of action is not created; providing for certain funding; providing that Chief Medical Officer of the Workers’ Compensation Commission determines disability for compensable injuries and illnesses occurring on or after a certain date; providing claim requirements and evaluation requirements; requiring that copy of evaluation be sent to the parties; defining terms; stating purpose of Medical Impairment Rating Registry Program; requiring the Administrator to establish the Program; providing duties of MIR physicians; making MIR Registry available to the parties; providing application procedure and qualifications for appointment of MIR physicians; providing term of appointment; authorizing renewal of appointment; authorizing application fee; giving Chief Medical Officer sole authority to approve or reject applications; requiring MIR physicians to comply with certain conditions; providing for reconsideration of denials of appointment; providing procedure for selection of MIR physician when there is a dispute as to the degree of medical impairment; providing for scheduling of evaluation; providing evaluation procedure; providing for travel reimbursement in certain circumstances; providing for payment of evaluation fees and late fees to MIR physicians; providing for refund of unearned fees; providing procedure for cancellation or rescheduling of evaluation; providing procedure for dispute of multiple impairment ratings; prohibiting MIR physicians from rendering certain opinions; requiring certain disclosures; providing for determination of conflict of interest; providing for removal of MIR physician from registry for failure to disclose conflict of interest; prohibiting certain communications; providing requirements for approved communications; making party seeking presence of MIR physician as a witness responsible for payment for services; providing MIR physician responsibilities prior to and after evaluation; providing that physician-patient relationship is not created; stating purpose of evaluation; providing medical obligation for new diagnoses; requiring MIR Report; providing format and procedure; providing for contents; requiring report if MIR physician and treating physician disagree; providing for removal of physician from MIR Registry; providing grounds for removal; providing procedure for complaints against MIR physicians; providing for reinstatement; providing penalties for noncompliance; providing for extension of time limits; prohibiting parties from seeking second MIR Registry impairment rating under certain circumstances; requiring Chief Medical Officer to issue final determination of disability within a certain time; authorizing appeal of determination; providing for hiring of Chief Medical Officer; requiring Senate confirmation; requiring periodic review of performance of the Chief Medical Officer by the Commission; requiring recommendation on reappointment; providing for compensation of the Chief Medical Officer; providing additional duties of the Chief Medical Officer; providing for appeal of certain orders; changing amount of payments for temporary partial disability injuries occurring on or after a certain date; changing limitation on number of weeks payments are made for temporary partial disability injuries occurring on or after a certain date; modifying maximum extension of benefits for surgery for soft tissue injury; modifying termination date of benefits if surgery is not recommended or is not performed; changing amount of payments for permanent partial disability injuries occurring on or after a certain date; changing amount of payments for certain permanent partial loss disability injuries occurring on or after a certain date; changing amount of payments for unspecified permanent partial impairment injuries occurring on or after a certain date; changing maximum weekly payment for permanent partial impairment for injuries occurring after certain date; prohibiting consideration of the odd-lot doctrine for permanent disability claims; modifying scope of permanent disfigurement; modifying restrictions and conditions for receipt of total disability; modifying procedures for vocational rehabilitation services or training; providing that tuition for vocational rehabilitation services or training are not payable as a separate item in a settlement, order or award; providing that the value of vocational rehabilitation services or training shall not be included in calculation of legal fees; authorizing the Workers’ Compensation Commission to review compensation orders, awards and decisions; providing exception; modifying appeals process; providing authority of the Supreme Court in relation to appeals; modifying when certain trust proceeds are distributed; authorizing the Supreme Court to require a bond for appeals; establishing administrative violation if insurance carrier or representative attends certain proceedings without authority or fails to exercise authority; providing for appointment of successor appointees to the Workers’ Compensation Self-Insurance Guaranty Fund Board; providing for continued implementation and maintenance of the EDI System; authorizing employers to discharge employees who fail to answer truthfully about any previous workers’ compensation claims; providing for continued maintenance of Internet system and certain Internet postings; modifying duties of the Physician Advisory Committee; providing for establishment of treatment guidelines; requiring explanation in order if Chief Medical Officer awards certain payments outside recommended guidelines; eliminating certain treatment guidelines; defining terms; modifying membership and composition of the Advisory Council on Workers’ Compensation; modifying appointments; prohibiting certain persons from being on the Council; modifying certain duty of the Council; creating the Oklahoma Employee Injury Benefit Act; providing short title; construing provisions; stating legislative findings; stating legislative intent; defining terms; authorizing voluntary exemption from certain act; requiring certain notice to Workers' Compensation Court; requiring payment of certain fee; establishing responsibilities of certain Commissioner; requiring certain notice to employees; stating requirements for certain notice; authorizing adoption of certain rules; requiring adoption of certain plan by certain employers; establishing schedule of benefits for certain plans; establishing requirements for implementation of certain plans; requiring employers to provide certain insurance coverage in specified amounts; requiring bond under certain circumstances; specifying authorized usage of certain bond; specifying liability of employers under certain plans; establishing exceptions to certain liability; establishing responsibilities of employers under certain plans; limiting attorney fees under certain circumstances; specifying means of dispute resolution; prohibiting promulgation of certain rules; construing provisions; stating effects of certain challenges; repealing 85 O.S. 2011, Section 304, which relates to the Presiding Judge of the Workers’ Compensation Court; repealing 85 O.S. 2011, Section 325, which relates to assignment of claims; repealing 85 O.S. 2011, Section 331, which relates to computation of average weekly wages; providing for codification; providing for noncodification; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     AMENDATORY     85 O.S. 2011, Section 303, as amended by Section 1074, Chapter 304, O.S.L. 2012 (85 O.S. Supp. 2012, Section 303), is amended to read as follows:
Section 303.  A.  There is hereby created the Workers’ Compensation Court of Existing Claims which shall consist of ten (10) four (4) judges, notwithstanding any reduction in the number of judges by operation of law before the effective date of this act.  Each judge of the Court shall be appointed to a designated numbered position on the Court.  The positions shall be numbered one through ten, no more than seven of which shall be permanently assigned to the Oklahoma City location of the Workers’ Compensation Court and no less than three of which shall be permanently assigned to the Tulsa location of the Workers’ Compensation Court.  The initial terms of the judges by position number shall expire on the following dates:
Position 1 shall expire 7-1-14.
Position 2 shall expire 7-1-14.
Position 3 shall expire 7-1-14.
Position 4 shall expire 7-1-12.
Position 5 shall expire 7-1-12.
Position 6 shall expire 7-1-16.
Position 7 shall expire 7-1-16.
Position 8 shall expire 7-1-12.
Position 9 shall expire 7-1-12.
Position 10 shall expire 7-1-14.
Provided, judges who are serving unexpired terms on the Workers’ Compensation Court on the effective date of this act shall serve on the Court created by this section until their respective terms expire as provided in this act.  Thereafter, each position shall be filled by a judge appointed to serve an eight-year a six-year term.  Judges serving unexpired terms on the effective date of this act shall be eligible upon expiration of such terms for appointment to one term of eight (8) years pursuant to this section.  After a judge serves an eight-year a six-year term, such judge shall be eligible to reapply for an additional term.
Effective November 1, 2013, all existing positions of the Workers’ Compensation Court shall become vacant.  The Governor shall appoint four new judges from a list of nominees provided by the Judicial Nominating Commission who shall be subject to confirmation by a majority of the Senate.
When a vacancy on the Court of Existing Claims occurs or is certain to occur, or for initial appointments to the Court, the Judicial Nominating Commission shall choose and submit to the Governor and the Chief Justice of the Supreme Court the names of three persons for each appointment, each of whom has previously notified the Commission in writing that he or she will serve as a judge if appointed.  The Governor shall appoint one of the nominees to fill the vacancy with the advice and consent of the Senate.  If the Governor fails to do so within sixty (60) days, the Chief Justice of the Supreme Court shall appoint one of the nominees with the advice and consent of the Senate, the appointment to be certified to the Secretary of State.  Appointments by the Governor to fill a position for a term commencing July 1 shall be made by April 15.  If the April 15 deadline cannot be met, the Governor shall notify the President Pro Tempore of the Senate of the date when the appointment is expected to be made.  If the Senate fails to confirm within ninety (90) days, the Governor may select from the two remaining nominees or request three additional nominees from the Judicial Nominating Commission.  If the Senate is not in session when the appointment is made, the Senate must confirm such appointment during its next regular session.  If the Senate fails to confirm such appointment, the Governor shall ask the Judicial Nominating Commission for the names of three persons, which shall not include the name of the candidate not confirmed, and shall submit a new candidate to the Senate for confirmation within thirty (30) days of receipt of such nominees.
B.  A judge of the Court of Existing Claims shall have been licensed to practice law in this state for a period of not less than five (5) years and shall have not less than five (5) years of workers’ compensation experience in Oklahoma prior to appointment.  Each judge, before entering upon the duties of office, shall take and subscribe to an oath of office and file the same with the Secretary of State.  Each judge shall continue to serve until his or her successor has been appointed and qualified.  A judge may be removed for cause by the Court on the Judiciary prior to the expiration of his or her term.  Any judge reappointed shall be subject to confirmation by a majority of the Senate.
C.  Each judge of the Court of Existing Claims shall receive a salary equal to that paid to a district judge of this state, and shall devote full time to his or her duties and shall not engage in the private practice of law during the term in office.
D.  The Court of Existing Claims and the Workers’ Compensation Commission shall have the authority to adopt reasonable rules within its respective areas of responsibility including the rules of procedure for the Court en banc, after notice and public hearing, for effecting the purposes of the Workers’ Compensation Code.  All of the judges of the Court shall be present at all meetings wherein rules are adopted or amended.  All rules, upon adoption, shall be submitted to the Supreme Court, which shall either approve or disapprove them within thirty (30) days.  All rules, upon approval by the Supreme Court, shall be published and be made available to the public and, if not inconsistent with the law, shall be binding in the administration of the Workers’ Compensation Code.
E.  The Court of Existing Claims is hereby designated and confirmed as a court of record,  with for all workers’ compensation claims for which the date of injury was prior to November 1, 2013.  With respect to any matter within the limits of its jurisdiction their respective jurisdictions, and within such limits the judges thereof or the Workers’ Compensation Commission shall possess the powers and prerogatives of the judges of the other courts of record of this state, including the power to punish for contempt those persons who disobey a subpoena, or refuse to be sworn or to answer as a witness, when lawfully ordered to do so.
F.  The principal office of the Court of Existing Claims shall be situated in the City of Oklahoma City in quarters assigned by the Office of Management and Enterprise Services.  The Court may hold hearings in any city of this state.  The Tulsa location of the Workers’ Compensation Court shall not be closed without the approval of the Legislature.
G.  All county commissioners and presiding district judges of this state shall make quarters available for the conducting of hearings by a judge of the Court of Existing Claims upon request by the Court.
H.  The judges of the Court of Existing Claims shall determine the qualifications necessary for the position of Administrator.  The qualifications shall be submitted to the Chief Justice of the Supreme Court for approval, disapproval or modification.
I.  Judges of the Workers’ Compensation Court of Existing Claims may punish for direct contempt pursuant to Sections 565, 565.1 and 566 of Title 21 of the Oklahoma Statutes.
J.  The Court of Existing Claims shall be vested with jurisdiction over all claims filed pursuant to the Workers’ Compensation Code for claims for injuries which occurred prior to November 1, 2013.  All claims so filed shall be heard by the judge sitting without a jury.  The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Code.  The Court, upon application of either party, shall order a hearing.  Upon a hearing, either party may present evidence and be represented by counsel.  Except as provided in Section 340 of this title, the decision of the Court shall be final as to all questions of fact and law.  The decision of the Court shall be issued within sixty (60) days following the submission of the case by the parties.  The power and jurisdiction of the Court over each case shall be continuing and it may, from time to time, make such modifications or changes with respect to former findings or orders relating thereto if, in its opinion, it may be justified.
SECTION 2.     AMENDATORY     85 O.S. 2011, Section 305, is amended to read as follows:
Section 305.  A.  The chief administrative officer of the Workers’ Compensation Court of Existing Claims shall be the Administrator of the Workers’ Compensation Court of Existing Claims, who shall be subject to the general supervision of the presiding judge of the Court, subject to the general administrative authority of the Chief Justice of the Supreme Court.
B.  The person serving as Administrator of the Workers’ Compensation Court on the effective date of this act October 31, 2013, shall be appointed by the Governor with the advice and consent of the Senate serve as the Administrator of the Workers’ Compensation Court of Existing Claims.  The Administrator shall serve at the pleasure of the Governor.
C.  The salary of the Administrator shall be ninety percent (90%) of the authorized salary of a judge of the Court of Existing Claims.
SECTION 3.     AMENDATORY     85 O.S. 2011, Section 306, is amended to read as follows:
Section 306.  A.  In addition to other duties, effective November 1, 2013, the Administrator of the Workers’ Compensation Court of Existing Claims, subject to approval of the presiding judge, shall organize, direct and develop the administrative work of the Workers’ Compensation Court of Existing Claims, including docketing, clerical, technical and financial work, establish hours of operation, and perform such other duties relating to matters within the purview of the Court.  The Administrator shall employ other employees of the Court of Existing Claims, within budgetary limitation, necessary to carry out the work and orders of the Court in an efficient and expedient manner.
B.  The Administrator shall have the following powers and duties:
1.  To hear accept and approve record settlements pursuant to direction by the judges of the Court;
2.  To review and approve own-risk applications and group self-insurance associations applications;
3.  To monitor own-risk, self-insurer and group self-insurance programs in accordance with the rules of the Court Workers’ Compensation Commission;
4.  To contract with an appropriate state governmental entity, insurance carrier or approved service organization to process, investigate and pay valid claims against an impaired self-insurer, charges for which shall be paid from the proceeds of security posted with the Administrator as provided in Section 51 351 of this act title;
5.  To establish a toll-free telephone number in order to provide information and answer questions about the Court Commission;
6.  To hear and determine claims concerning disputed medical bills;
7.  To promulgate necessary rules subject to the approval of the presiding judge; and
8.  Such other duties and responsibilities authorized by law or as the judges of the Court may prescribe.
SECTION 4.     AMENDATORY     85 O.S. 2011, Section 307, is amended to read as follows:
Section 307.  A.  No employee of the Administrator of Court of Existing Claims or the Workers’ Compensation Court Commission shall be competent to testify on any matter before a court concerning any information the employee has received through the performance of the employee’s duties under the provisions of the Workers’ Compensation Code.
B.  The Administrator Court of Existing Claims or the Workers’ Compensation Commission and employees of the Administrator thereof shall not solicit employment for any attorney or physician nor shall they recommend or refer any claimant or employer to an attorney or physician.  If the Administrator Court of Existing Claims or the Workers’ Compensation Commission or any employee of the Administrator thereof makes such a solicitation, recommendation or reference, that person, upon conviction, shall be guilty of a misdemeanor punishable, for each offense, by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment not to exceed one (1) year, or by both such fine and imprisonment.  The Administrator shall immediately terminate the employment of any employee who is guilty of such solicitation, recommendation or reference.  An Administrator or judge of the Workers’ Compensation Court Any Court of Existing Claims or Workers’ Compensation Commission employee guilty of such solicitation, recommendation or reference shall be subject to removal from office.
C.  No judge of the Court of Existing Claims shall engage in any ex parte communication with any party to an action pending before the Court or with any witness or medical provider regarding the merits of a specific matter pending before the judge for resolution.  Any violation of this provision shall subject the judge to disqualification from the action or matter upon presentation of an application for disqualification.
D.  An attorney and counselor shall not deduct or withhold any portion of a judgment from a court of law, settlement proceeds of a client, or any monies held in trust for a client for the purpose of donating or contributing funds or monies to a political fund, political action committee, campaign of any kind, or candidate for state, federal or local office.
SECTION 5.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 306.1 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  There is hereby created the Workers' Compensation Commission.  The Workers’ Compensation Commission shall consist of three (3) members appointed by the Governor who shall be confirmed by the State Senate for a term of six (6) years.  The Commission shall be a full-time position and no Commissioner shall have any other employment.  The Commission shall administer the provisions of the Workers’ Compensation Code.
One member shall be an attorney, who shall chair the Commission, and who shall have at least five (5) years of experience in workers’ compensation matters in Oklahoma.  Two members shall be individuals who shall each have at least five (5) years of experience and expertise in the field of workers’ compensation in Oklahoma.  These two members shall not be required to be attorneys; however, one of these two members shall be a physician as defined in Section 326 of Title 85 of the Oklahoma Statutes.
B.  Each member shall receive a salary equal to that of a district judge of this state.  The salary shall be paid from the Workers’ Compensation Fund and shall be paid in the manner as are salaries of other state officials or employees.
SECTION 6.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 306.2 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  Under the jurisdiction of the Workers’ Compensation Commission there are hereby created the positions of administrative law judges.  Such judges shall be hired by the Commission and shall be located so that one each is permanently assigned to the Southeast, Southwest, Northwest and Northeast regions of the state.  Four additional judges shall be hired by the Commission and shall be located two in Tulsa and two in Oklahoma City.
B.  The counties located in the Southeast region shall be:  Atoka, Bryan, Carter, Choctaw, Coal, Garvin, Haskell, Hughes, Johnston, Latimer, LeFlore, Love, Marshall, McCurtain, McIntosh, Murray, Okfuskee, Pittsburg, Pontotoc, Pushmataha and Seminole.
C.  The counties located in the Southwest region shall be: Beckham, Caddo, Comanche, Cotton, Grady, Greer, Harmon, Jackson, Jefferson, Kiowa, Stephens, Tillman and Washita.
D.  The counties located in the Northwest region shall be:  Alfalfa, Blaine, Beaver, Cimarron, Custer, Dewey, Ellis, Garfield, Grant, Harper, Kay, Kingfisher, Major, Noble, Payne, Roger Mills, Texas, Woods and Woodward. 
E.  The counties located in the Northeast region shall be: Adair, Cherokee, Craig, Delaware, Mayes, Muskogee, Nowata, Okmulgee, Ottawa, Sequoyah and Washington.
F.  The counties located in the Tulsa region shall be:  Creek, Osage, Pawnee, Rogers, Tulsa and Wagoner.
G.  The counties located in the Oklahoma City region shall be: Canadian, Cleveland, Lincoln, Logan, McClain, Oklahoma and Pottawatomie.
H.  All claims for workers’ compensation under Title 85 of the Oklahoma Statutes shall be heard in the region of the state where the accident occurred, where the claimant resided at the time of the injury or where the employer has its primary place of business.  The determination of regional venue shall be by the priority listed above, unless agreed to by both parties.  All administrative law judges shall be subject to confirmation by the Senate.  Upon agreement of the parties, the Commission may hold hearings related to a claim by a video conference. 
SECTION 7.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 306.3 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  The Governor may remove any member of the Workers’ Compensation Commission for inefficiency, neglect of duty, or misconduct in office.  The Governor shall provide that member in advance a copy of the causes or charges preferred and an opportunity to be publicly heard, in person or by counsel, upon not less than ten (10) days’ notice.  Such removal shall be confirmed by a majority of the Senate. 
B.  A representative of the Office of the Attorney General shall attend the proceedings and, upon the request of the Governor, shall advise or assist the Senate in the proceedings.  
C.  Either party may require the attendance and testimony of witnesses as provided in Title 12 of the Oklahoma Statutes.  
D.  If a member is removed, the Governor shall file in the Office of the Secretary of State a complete statement of all causes or charges made against the member and findings, together with a complete record of all proceedings and a transcript of testimony.  It shall constitute a public record of the state.  
E.  The Senate shall have the authority to subpoena and take testimony from any party to the removal, including, but not limited to, the Governor.  
SECTION 8.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 306.4 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  The Workers’ Compensation Commission shall be considered officers of the state and shall take the oath prescribed by the Oklahoma Constitution and the laws of Oklahoma.
B.  Except when adopting rules, which requires all members to be present and participating, a majority of the Commission shall constitute a quorum for the transaction of business, and vacancies shall not impair the right of the remaining members to exercise all the powers of the full Commission so long as a majority remains.
C.  1.  The Workers' Compensation Commission shall maintain and keep open, during reasonable business hours, an office in Oklahoma City, for the transaction of business, at which office official records and papers shall be kept. 
2.  The Commission or any member of the Commission shall hold sessions and conduct hearings at any local career and technology education center, also known as state-sponsored Career Tech, within the state. 
D.  The Commission shall have a seal for authentication of its orders, awards, and proceedings, which shall have inscribed the words: “Workers’ Compensation Commission, State of Oklahoma”.
SECTION 9.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 306.5 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  1.  For the purpose of administering the provisions of the Workers’ Compensation Code, the Workers’ Compensation Commission is authorized:
a.	to make such rules as may be found necessary, including but not limited to rules establishing schedules of maximum allowable fees for medical services rendered with respect to compensable injuries, for the purpose of controlling the cost of medical and hospital services and supplies,
b.	to appoint and fix the compensation of temporary technical assistants and medical and legal advisors and to appoint and to fix the compensation of clerical assistants and other officers and employees, and
c.	to make such expenditures, including those for personal services, rent, books, periodicals, office equipment, and supplies, for printing and binding as may be necessary, and for informing people of the Counselor program.
2.   a.	Prior to the adoption, prescription, amendment modification, or repeal of any rule, regulation, or form, the Commission shall give at least forty-five (45) days’ notice of an intended action.  
b.	The notice shall include a statement of the terms or substance of the intended action or description of the subjects and issues involved, and the time, place, and manner in which interested persons may present their views thereon.
c.	The notice shall be mailed to any person specified by law or who shall have requested advance notice of rule-making proceedings.
3.  The Commission shall afford all interested persons a reasonable opportunity to submit written data, views, or arguments, and, if the Commission in its discretion directs, oral testimony or argument.  The Commission shall comply with the Administrative Procedures Act.
4.  All expenditures of the Commission in the administration of the Workers’ Compensation Code shall be allowed and paid from the Workers’ Compensation Fund upon the presentation of itemized vouchers approved by the Commission.
B.  1.  The Commission may appoint as many persons to be examiners, experts, investigators, counselors, clerks, and other employees as deemed necessary to effectuate the provisions of the Workers’ Compensation Code.
2.  Rate experts shall be considered employees of the Commission and the Insurance Commissioner and shall be paid from the Workers’ Compensation Fund.
3.  Employees appointed pursuant to this subsection shall receive an annual salary to be fixed by the Commission within the appropriation made for the Commission.
C.  It shall be the duty of an administrative law judge, under the rules adopted by the Commission, to hear and determine claims for compensation and to conduct hearings and investigations and to make such orders, decisions, and determinations as may be required by any rule or order of the Commission.  The duty of an administrative law judge shall be to rule only on issues of determination of eligibility for compensation, and shall notify both parties of that decision.  If the claim is deemed compensable, the administrative law judge shall direct medical treatment, if appropriate, be provided by a physician selected by the employer, and temporary total disability, if appropriate. 
SECTION 10.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 306.6 of Title 85, unless there is created a duplication in numbering, reads as follows:
Any employee of the Workers’ Compensation Commission shall be entitled to receive necessary travel expenses actually incurred and for subsistence while traveling on official business pursuant to the State Travel Reimbursement Act.
SECTION 11.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 306.7 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  In addition to its other duties and powers, the Workers’ Compensation Commission is granted full power and authority to:
1.  Hear and determine all claims for compensation, including, but not limited to, claims based upon injuries that occurred outside the state for which compensation is payable under this act;
2.  Employ a Chief Medical Officer and special medical examiners and advisors as deemed necessary by the Commission, who shall be paid a reasonable amount per day to be determined by the Commission, plus reasonable travel expenses pursuant to the State Travel Reimbursement Act;
3.  Hear appeals from orders made by the Chief Medical Officer regarding ratings of permanent disability, need for medical services or assignment of independent medical evaluations;
4.  Approve claims for medical services and attorney fees; 
5.  Excuse failure to give notice either of injury or death of any employee;
6.  Make, modify, or rescind awards, and make and enter findings of fact and rulings of law;
7.  Enter orders in appealed cases;
8.  Determine the time for the payment of compensation and order the reimbursement of employers for amounts advanced;
9.  Assess penalties; 
10.  Prescribe rules and regulations governing the representation of employees, employers, and carriers in respect to claims before the Commission;
11.  Issue subpoenas, administer oaths, and take testimony, by deposition or otherwise; 
12.  Have and exercise all other powers and duties conferred or imposed by the Workers’ Compensation Code; and
13.  Transfer the excess of income over expenses from the Commission’s annual educational conference to any nonprofit charitable organization designed to provide scholarships to children of workers who have been killed or become permanently and totally disabled from a compensable injury, including, but not limited to, any accumulation from prior years’ conferences.
B.  1.  In addition to the other powers and duties granted to the Commission in this section and otherwise provided by law, the Commission is authorized to establish and impose reasonable fees to recover the cost of preparation of various informative materials distributed by the Commission. 
2.  The fees shall be established by rule of the Commission. 
3.  Funds derived from fees shall be deposited in the Workers’ Compensation Fund to be used to defray expenses incurred in preparation and distribution of materials.  
SECTION 12.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 306.8 of Title 85, unless there is created a duplication in numbering, reads as follows:
On or before the first day of the regular session of the Legislature, the Workers’ Compensation Commission under the authority of at least two of its members shall make to the Governor and to the Legislature a report of the administration of the Workers’ Compensation Code for the preceding annual period.  
SECTION 13.     AMENDATORY     85 O.S. 2011, Section 308, is amended to read as follows:
Section 308.  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 workers’ compensation as provided for in the Workers’ Compensation Court Code;
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:
a.	systematically monitoring the treatment rendered and the medical progress of the injured or disabled worker;,
b.	ensuring that any treatment plan follows all appropriate treatment protocols, utilization controls and practice parameters;,
c.	assessing whether alternative health care services are appropriate and delivered in a cost-effective manner based upon acceptable medical standards;, and 
d.	ensuring that the injured or disabled worker is following the prescribed health care medical treatment plan which follows acceptable medical standards as adopted by the Chief Medical Officer with the advice of the Physician Advisory Committee.  Any final decision in authorizing medical care or treatment, including, but not limited to, medical device equipment or prescription drug authorization, shall be the sole responsibility of the loss adjuster, unless such responsibility has been delegated to another in writing;
6.  “Case manager” means a person who:
a.	is a registered nurse with a current, active unencumbered license from the Oklahoma Board of Nursing, or 
b.	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:
a. (1)	Certified Disability Management Specialist (CDMS),
b. (2)	Certified Case Manager (CCM),
c. (3)	Certified Rehabilitation Registered Nurse (CRRN),
d. (4)	Case Manager - Certified (CMC),
e. (5)	Certified Occupational Health Nurse (COHN), or
f. (6)	Certified Occupational Health Nurse Specialist (COHN-S).
The case manager’s objective is to arrange for the delivery of cost-effective services that meet the patient’s medical needs.  The case manager acts both as an ombudsman for the patient and as an agent of the payor;
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 self-insured 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, regardless of whether such entity is insured by CompSource Oklahoma, 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 any dependent child as defined by the Internal Revenue Service;
9.  “Claimant” means a person who claims benefits for an injury pursuant to the provisions of the Workers’ Compensation Code;
10.  “Commission” means the Workers’ Compensation Commission;
11.  “Commissioner of Labor” means the chief executive officer of the Oklahoma Department of Labor who supervises the work of that Department;
12.	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 title.  A compensable injury must be established by objective medical evidence as defined in this section.  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.  An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.  The “prevailing factor” is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability supported by objective medical finding.
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.  The injury must be established by objective medical evidence, as defined in this section.  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.
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.
g.	“Compensable injury” includes injury due to the willful act of a third person directed against an employee because of the employee’s employment.
h.	“Compensable injury” includes an injury or disease resulting from a vaccine administered at the direction of the employer or in response to a declaration by the Secretary of the United States Department of Health and Human Services under the Public Health Services Act to address an actual or potential health risk related to the employee’s employment.
i.	“Compensable injury” shall not include:
(1)	alcoholism and disabilities attributable thereto or injury in which the accident was substantially occasioned by the use of alcohol,
(2)	drug addiction or disabilities resulting therefrom, except when such addiction, disability or accident resulted from the use of drugs or medicines prescribed for the treatment of the initial injury by an authorized physician and the employee followed the dosage prescribed, or
(3)	injury in which the accident was substantially occasioned by the use of illegal drugs or prescription drugs used in contravention of the orders of a physician.
j.	“Compensable injury” shall not include an employee’s use of a motor vehicle that was provided to the employee by a motor vehicle dealer and bears a dealer’s license plate for commuting to or from work or any other nonwork activity.
k.	“Compensable injury” shall not include an injury incurred by an employee by the employee’s willful intention to injure himself or herself or another.
l.	“Compensable injury” shall not include an injury or disease caused by exposure to a toxic substance, including, but not limited to, asbestos, silica, fungus or mold, unless there is a preponderance of the evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.
m.	“Compensable injury” shall not include injury which was inflicted upon the employee at a time when employment services were not being performed or before the employee was hired or after the employment relationship was terminated.
n.	“Compensable injury” shall not include death due to natural causes occurring while the employee is at work;
11. 13.  “Compensation” means the money allowance benefit payable to an the employee as provided for in the Workers’ Compensation Code or the dependents of the employee in the form of:
a.	temporary total or temporary partial disability payments,
b.	permanent partial or permanent total disability payments, settlements or awards, and
c.	other compensation which may include medical care, prescription costs, other fees or costs associated with physical or vocational rehabilitation and funeral expenses. 
Compensation shall be computed on the average weekly wage earned by the employee in force at the time of the accident.  Where the injured employee was working other than full time, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in a full-time work week as set out in this title, as it applies to the claimant;
12. 14.  “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 of Existing Claims or the Workers’ Compensation Commission 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. 15.  “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 of Existing Claims or the Commission in advance of such treatment;
14. 16.  “Court” means the Workers’ Compensation Court of Existing Claims, the Workers’ Compensation Commission, the Chief Medical Officer, or any of the administrative law judges;
15. 17.  “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. 18.  “Death” means only death resulting from a compensable injury as defined in this title;
19.  “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. 20.  “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 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. 21.  “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 or representative of the insurance carrier, if applicable;
19. 22.  “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. 23.  “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. 24.  “Gainful employment” means the capacity to perform employment for wages for a period of time that is not part-time, occasional or sporadic;
22. 25.  “Grandchild” means a child of a child;
23. 26.  “Healing period” means that period for healing of an injury resulting from an accident;
27.  “Impaired self-insurer” means a private self-insurer or group self-insurance 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. 28.  “Incapacity” means inadequate strength or ability to perform a work-related task;
25. 29.  “Independent medical examiner” means a licensed physician authorized to serve as a medical examiner pursuant to this act;
26. 30.  “Insurance carrier” shall include CompSource Oklahoma, stock corporations, reciprocal or interinsurance associations, or mutual associations with which employers have insured, and employers permitted to pay compensation directly under the provisions of Section 51 351 of this act title;
27. 31.  “Insurance Commissioner” means the Insurance Commissioner of this state;
32.  “Light duty” describes the status of an employee when a physician has declared the employee available for work with specific temporary physical restrictions;
28. 33.  “Major cause” means more than fifty percent (50%) the predominant cause of the resulting injury, disease or illness is more than fifty-one percent (51%) of the cause.  A finding of major cause shall be established by a preponderance of the objective medical evidence only.  A determination that a work-related injury or illness is noncompensable for any reason, including 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 title and shall not create a separate cause of action outside of this act title;
29. 34.  “Maximum medical improvement” means that no further material improvement would reasonably be expected from medical treatment or the passage of time;
30. 35.  “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;
31. 36.  “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. 37.  “Objective medical evidence or findings” 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 Commission, an administrative law judge, 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; but straight-leg-raising tests or range-of motion tests shall not be considered objective medical evidence or an objective finding.  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.  Any difference in the baseline hearing levels must be confirmed with a subsequent test within four (4) weeks following the initial test or tests performed pursuant to this paragraph but not before five (5) days and being adjusted for presbycusis.  Objective findings in support of medical evidence are verifiable indications of injury or disease that may include, but are not limited to, range of motion, atrophy, muscle strength and palpable muscle spasm.  “Objective medical evidence” or “objective findings” does not include physical findings or subjective responses to physical examinations that are not reproducible, measurable or observable.  Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.  Any medical opinion addressing the issue of compensability must be based on the treatment guidelines adopted under this title, and any medical opinion addressing permanent impairment must be based on the Commission’s most recently adopted version of the American Medical Association’s "Guides to the Evaluation of Permanent Impairment", excluding pain;
33. 38.  “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.  No compensation shall be payable for any ordinary disease of life to which the general public is exposed;
34. 39.  “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. 40.  “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 33 333 of this act title.  All evaluations of permanent impairment must be supported by objective medical evidence;
36. 41.  “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 arms, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability;
37. 42.  “Private self-insurer” means a private employer that has been authorized to self-insure its workers’ compensation obligations pursuant to Section 51 351 of this act title, but does not include group self-insurance associations authorized under Section 51 351 of this act title or Section 398 of this title, or any public employer that self-insures pursuant to Section 13 313 of this act title;
38. 43.  “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 the Workers’ Compensation Code;
39. 44.  “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;
40. 45.  “Safe” or “safety” as applied to any employment or place of employment shall include conditions and methods of sanitation and hygiene reasonably necessary for the protection of the life, health, safety, and welfare of employees or the public;
46.  “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. 47.  “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. 48.  “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. 49.  “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. 50.  “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. 51.  “Surgery” does not include an injection, or the forcing of fluids beneath the skin, for treatment or diagnosis;
46. 52.  “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. 53.  “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. 54.  “Treating physician” means the licensed physician authorized to provide active medical treatment for an injured worker; and
49. 55.  “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.
SECTION 14.     AMENDATORY     85 O.S. 2011, Section 310, is amended to read as follows:
Section 310.  A.  Every Subject to limitations found in the Workers’ Compensation Code, every employer subject to the provisions of the Workers’ Compensation Code shall pay or provide benefits according to the provisions of this act the Code for the accidental injury or death of an employee arising out of and in the course of his or her employment, without regard to fault for such injury, if the employee’s contract of employment was made or if the injury occurred within this state.  If an employee makes claim for an injury in another jurisdiction and a final adjudication is entered in the case, the employee is precluded from his or her right of action under the Workers’ Compensation Code of this state.  If the employee brings an action in this state prior to a final adjudication in another jurisdiction, any receipt of benefits in the other jurisdiction shall not bar the action in this state; provided, however, in no event shall the Workers’ Compensation Court of Existing Claims or the Workers’ Compensation Commission grant benefits that duplicate those paid by the employer or insurance carrier in the other jurisdiction.
B.  The State of Oklahoma accepts the provisions of the Acts of Congress designated as 40 U.S.C., Section 3172, formerly 40 U.S.C., Section 290, and hereby extends the territorial jurisdiction of the Workers’ Compensation Code of this state to all lands and premises within the exterior boundaries of this state which the Government of the United States of America owns or holds by deed or act of cession, and to all purchases, projects, buildings, constructions, improvements and property within the exterior boundaries of this state belonging to the Government of the United States of America, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of this state, subject only to the limitations placed thereon by the Acts of Congress.
SECTION 15.     AMENDATORY     85 O.S. 2011, Section 311, is amended to read as follows:
Section 311.  The Workers’ Compensation Code shall not apply to the following employees:
1.  Any person for whom an employer is liable under any Act of Congress for providing compensation to employees for injuries, disease or death arising out of and in the course of employment including, but not limited to, the Federal Employees’ Compensation Act, the Federal Employers’ Liability Act, the Longshoremen’s and Harbor Workers’ Act and the Jones Act, to the extent his or her employees are subject to such acts;
2.  Any person who is employed in agriculture or horticulture by an employer who had a gross annual payroll in the preceding calendar year of less than One Hundred Thousand Dollars ($100,000.00) wages for agricultural or horticultural workers, or any person who is employed in agriculture or horticulture who is not engaged in operation of motorized machines;
3.  Any person who is a licensed real estate sales associate or broker, paid on a commission basis;
4.  Any person who is providing services in a medical care or social services program, or who is a participant in a work or training program, administered by the Department of Human Services, unless the Department is required by federal law or regulations to provide workers’ compensation for such person.  This paragraph shall not be construed to include nursing homes;
5.  Any person employed by an employer with five or less total employees, all of whom are related by blood or marriage to the employer, if the employer is a natural person or a general or limited partnership, or an incorporator of a corporation if the corporation is the employer;
6.  Any person employed by an employer which is a youth sports league which qualifies for exemption from federal income taxation pursuant to federal law;
7.  Sole proprietors, members of a partnership, individuals who are party to a franchise agreement as set out by the Federal Trade Commission franchise disclosure rule, 16 CFR 436.1 through 436.11, members of a limited liability company who own at least ten percent (10%) of the capital of the limited liability company or any stockholder-employees of a corporation who own ten percent (10%) or more stock in the corporation, unless they elect to be covered by a policy of insurance covering benefits under the Workers’ Compensation Code;
8.  Any person providing or performing voluntary service who receives no wages for the services other than meals, drug or alcohol rehabilitative therapy, transportation, lodging or reimbursement for incidental expenses;
9.  A person, commonly referred to as an owner-operator, who owns or leases a truck-tractor or truck for hire, if the owner-operator actually operates the truck-tractor or truck and if the person contracting with the owner-operator is not the lessor of the truck-tractor or truck.  Provided, however, an owner-operator shall not be precluded from workers’ compensation coverage under the Workers’ Compensation Code if the owner-operator elects to participate as a sole proprietor;
10.  A person referred to as a drive-away owner-operator who privately owns and utilizes a tow vehicle in drive-away operations and operates independently for hire, if the drive-away owner-operator actually utilizes the tow vehicle and if the person contracting with the drive-away owner-operator is not the lessor of the tow vehicle.  Provided, however, a drive-away owner-operator shall not be precluded from workers’ compensation coverage under the Workers’ Compensation Code if the drive-away owner-operator elects to participate as a sole proprietor; and
11.  Any person who is employed as a domestic servant or as a casual worker in and about a private home or household, which private home or household had a gross annual payroll in the preceding calendar year of less than Ten Thousand Dollars ($10,000.00) for such workers; and
12.  Any person who is employed by a qualified employer with an employee benefit plan as provided in the Oklahoma Employee Injury Benefit Act.
SECTION 16.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.1 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  Every employer who has secured compensation under the provisions of the Workers’ Compensation Code shall keep posted in a conspicuous place in and about the place of business of the employer, typewritten or printed notices in accordance with a form prescribed by the Workers’ Compensation Commission.  The notices shall state that the employer has secured the payment of compensation in accordance with the provisions of the Code.  
B.  The notices shall contain the name and address of the carrier, if any, with whom the employer has secured payment of compensation. 
SECTION 17.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.2 of Title 85, unless there is created a duplication in numbering, reads as follows:
Compensation to alien nonresident dependents of the United States shall be the same in amount as provided for resident dependents, except that alien nonresident dependents in any foreign country shall be limited to the surviving spouse or minor children or both surviving spouse and minor children.
SECTION 18.     AMENDATORY     85 O.S. 2011, Section 312, is amended to read as follows:
Section 312.  The following shall not constitute a compensable injury under the Workers’ Compensation Code:
1.  An injury occasioned by the willful intention of the injured employee to bring about injury to himself or herself, or another;
2.  An injury resulting directly from the willful failure of the injured employee to use a guard or protection against accident furnished for use pursuant to any statute or by order of the Commissioner of Labor;
3.  An injury which occurs when an employee’s use of illegal drugs or chemicals or alcohol is the major cause of the injury or accident.  The employee shall prove by a preponderance of the evidence that the use of drugs, chemicals or alcohol was not the major cause of the injury or accident.  For the purposes of this paragraph, post-accident alcohol or drug testing results shall be admissible as evidence.  A public or private employer may require an employee to undergo drug or alcohol testing if the employee has sustained an injury while at work.  Every employee is deemed by his or her performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any drugs, chemicals or alcohol in the body of the employee.  For purposes of workers’ compensation, no employee who tests positive for the presence of substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation;
4.  Except for innocent victims, an injury caused by a prank, horseplay, or similar willful or intentional behavior;
5.  An injury occurring at a time when employment services were not being performed before the employee was hired or after the employment relationship was terminated; and
6.  An injury which occurs outside the course of employment.  Employment shall be deemed to commence when an employee arrives at the employee’s place of employment to report for work and shall terminate when the employee leaves the employee’s place of employment, excluding areas not under the control of the employer or areas where essential job functions are not performed; provided, however, when the employee is instructed by the employer to perform a work-related task away from the employee’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the performance of job duties directly related to the task as instructed by the employer, including travel time that is solely related and necessary to the employee’s performance of the task.  Travel by a policeman, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency, shall be deemed to be in the course of employment.
SECTION 19.     AMENDATORY     85 O.S. 2011, Section 314, is amended to read as follows:
Section 314.  Liability of any person, firm, or corporation having an interest in the subject matter, employers and contracting employers, general or intermediate, for compensation under the Workers’ Compensation Code, when other than the immediate employer of the injured employee, shall be as follows:
1.  In order for another employer on the same job as the injured or deceased worker to qualify as an intermediate or principal employer, the work performed by the immediate employer must be directly associated with the day to day activity carried on by such other employer’s trade, industry, or business, or it must be the type of work that would customarily be done in such other employer’s trade, industry, or business.
2.  The independent contractor shall, at all times, be liable for compensation due to his or her direct employees, or the employees of any subcontractor of such independent contractor, and the principal employer shall also be liable in the manner hereinafter specified for compensation due all direct employees, employees of the independent contractors, subcontractors, or other employees engaged in the general employer’s business; provided, however, if an independent contractor relies in good faith on proof of a valid workers’ compensation insurance policy issued to a subcontractor of the independent contractor or on proof of an Affidavit of Exempt Status under the Workers’ Compensation Code properly executed by the subcontractor under Section 924.4 of Title 36 of the Oklahoma Statutes, then the independent contractor shall not be liable for injuries of any employees of the subcontractor.  Provided further, such independent contractor shall not be liable for injuries of any subcontractor of the independent contractor unless an employer-employee relationship is found to exist by the Workers’ Compensation Commission or Court of Existing Claims despite the execution of an Affidavit of Exempt Status under the Workers’ Compensation Code.
3.  The person entitled to such compensation shall have the right to recover the same directly from the person’s immediate employer, the independent contractor or intermediate contractor, and such claims may be presented against all such persons in one proceeding.  If it appears in such proceeding that the principal employer has failed to require a compliance with the Workers’ Compensation Code of this state by the independent contractor, then such employee may proceed against such principal employer without regard to liability of any independent, intermediate or other contractor; provided, however, if a principal employer relies in good faith on proof of a valid workers’ compensation insurance policy issued to an independent contractor of the employer or to a subcontractor of the independent contractor or on proof of an Affidavit of Exempt Status under the Workers’ Compensation Code properly executed by the independent contractor or subcontractor under Section 924.4 of Title 36 of the Oklahoma Statutes, then the principal employer shall not be liable for injuries of any employees of the independent contractor or subcontractor.  Provided further, such principal employer shall not be liable for injuries of any independent contractor of the employer or of any subcontractor of the independent contractor unless an employer-employee relationship is found to exist by the Workers’ Compensation Commission or Court of Existing Claims despite the execution of an Affidavit of Exempt Status under the Workers’ Compensation Code.  Provided, however, in any proceeding where compensation is awarded against the principal employer under the provisions hereof, such award shall not preclude the principal employer from recovering the same, and all expense in connection with the proceeding from any independent contractor, intermediate contractor or subcontractor whose duty it was to provide security for the payment of such compensation, and such recovery may be had by supplemental proceedings in the cause before the Commission or Court or by an independent action in any court of competent jurisdiction to enforce liability of contracts.
4.  Where work is performed by an independent contractor on a single-family residential dwelling or its premises occupied by the owner, or for a farmer whose cash payroll for wages, excluding supplies, materials and equipment, for the preceding calendar year did not exceed One Hundred Thousand Dollars ($100,000.00), such owner or farmer shall not be liable for compensation under the Workers’ Compensation Code for injuries to the independent contractor or his or her employees.
SECTION 20.     AMENDATORY     85 O.S. 2011, Section 318, is amended to read as follows:
Section 318.  A.  The right to claim compensation under the Workers’ Compensation Code shall be forever barred unless, within two (2) years six (6) months after the date of accidental injury or death, a claim for compensation is filed with the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013.  Provided however, a claim may be filed within two (2) years ninety (90) days of the date of the last medical treatment authorized by the employer or the insurance carrier or the date of the payment of any compensation or remuneration paid in lieu of compensation.
B.  With respect to disease or injury caused by cumulative trauma causally connected with employment, a claim must be filed within two (2) years six (6) months of the date on which the employee was last employed by the employer.
C.  In the case of asbestosis or asbestosis related disease, silicosis or exposure to nuclear radiation causally connected with employment, a claim must be filed within two (2) years of the date of last hazardous exposure or within two (2) years from the date the condition first becomes manifest by a symptom or condition from which one learned in medicine could, with reasonable accuracy, diagnose such specific condition, whichever last occurs.
D.  The filing of any form or report by the employer or insurance carrier pursuant to subsection A, B or C of this section shall not toll any limitations provided for therein.
E.  When a claim for compensation has been filed with the Administrator of the Workers’ Compensation Court as provided in this act the Workers’ Compensation Code, unless the claimant shall in good faith request a hearing for benefits within two (2) years from the date of filing thereof or within two (2) years one (1) year from the date of last payment of medical treatment or compensation or wages in lieu thereof, same shall be barred and shall be dismissed by the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, for want of prosecution, which action shall operate as a final adjudication of the right to claim benefits thereunder.
F.  The jurisdiction of the Court or Commission, as applicable, to reopen any cause surgically-treated claim upon an application based upon a change in condition for the worse shall extend for three (3) years from the date of the last order in which monetary benefits or active medical treatment was provided, and unless filed within such period of time, shall be forever barred.  An order denying an application to reopen a surgically-treated claim shall not extend the period of the time set out in this act section for reopening the case.  A failure to comply with a medical treatment plan ordered by the Court or Commission shall bar reopening of a claim.  This subsection shall be considered to be substantive in nature.
G.  No limitation of time provided in this act section shall run as against any person who is mentally incompetent or a minor so long as he or she has no guardian properly appointed by the district court.
SECTION 21.     AMENDATORY     85 O.S. 2011, Section 319, is amended to read as follows:
Section 319.  Any claimant may, upon the payment of the Workers’ Compensation Court’s filing fee required by the Workers’ Compensation Code, dismiss any claim brought by the claimant at any time before final submission of the case to the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, for decision.  Such dismissal shall be without prejudice unless the words “with prejudice” are included in the order.  If any claim that is filed within the statutory time permitted by Section 18 318 of this act title is dismissed without prejudice, a new claim may be filed within one (1) year after the entry of the order dismissing the first claim even if the statutory time for filing has expired.
SECTION 22.     AMENDATORY     85 O.S. 2011, Section 321, is amended to read as follows:
Section 321.  A.  Mediation shall be available to any party to a claim arising pursuant to the provisions of the Workers' Compensation Code, subject to limitations pertaining to certified workplace medical plans and except for claims against the Multiple Injury Trust Fund.
B.  Unless ordered by the Workers' Compensation Commission or the Court of Existing Claims, mediation shall be voluntary, and shall not be conducted without the consent of both parties.  Mediation is not a prerequisite to the commencement of a claim for benefits under the Workers' Compensation Code.  A request for mediation or consent to mediate does not invoke the jurisdiction of the Court.
C.  The Commission or Court may order mediation in any case in which the Commission or Court believes that mediation may be beneficial to a prompt and efficient resolution of the claim.
D.  A request for mediation may be made by either party and shall be made in writing to the Administrator of the Workers' Compensation Court who shall set the case for prehearing before the assigned judge within fifteen (15) days.  At the prehearing, the judge shall appoint a mediator and issue an order reflecting such appointment.  The mediator shall contact the parties and schedule a mediation session within thirty (30) days of such order, unless otherwise agreed to by the parties.
E.  Mediation is confidential and no part of the proceeding shall be considered a matter of public record.  Recommendations of the mediator are not binding unless the parties enter into a settlement agreement.  If an agreement is not reached, the results and statements made during the mediation are not admissible in any following proceeding.
F.  The Commission or Court shall be responsible for certifying those persons who are eligible and qualified to serve as mediators.  An individual may be certified as a mediator if the applicant meets the qualifications as required by the Commission or Court.  A certified mediator may be an attorney or nonattorney who has worked in the area of Oklahoma workers' compensation benefits for at least five (5) years.  Mediators serving as Court-certified mediators on the effective date of this act August 26, 2011, shall serve the remainder of their respective five-year certification periods and may reapply for successive certification periods.
G.  Each certified mediator shall remain on the list for five (5) years, unless removed.  Mediators shall be required to complete at least six (6) hours of continuing education per two-year period in the areas of mediation and workers' compensation.  Proof of compliance with this requirement shall be submitted to the Administrator.  This continuing education requirement shall be in addition to any other such general requirement which may be required by the Oklahoma State Bar Association.  Cost of continuing education is to be borne by the applicant.
H.  Mediators shall be compensated at the rate or fee as determined by the mediator; provided, however, the rate or fee shall not exceed a maximum rate to be established by the Administrator or Court by rule.  The cost of mediation shall be paid by the respondent or its insurance carrier.  A mediator must schedule mediations for a minimum two (2) hour two-hour block of time, and may not schedule more than one mediation to take place at a time.
I.  At the time of a mediation, the claimant shall be in attendance unless all parties agree, and all parties shall be represented during the entire mediation session by a person with full settlement authority to settle any issue of the claim.  If a party does not have full settlement authority, or does not participate in good faith in the mediation process, the mediator shall report to the assigned judge of the Court who may for good cause shown assess costs, attorney fees, and sanctions.
J.  To encourage early resolution of claims, an injured employee may participate in mediation without counsel.  Upon compromise settlement of the claim, the parties may submit the settlement agreement to the Administrator for final approval.
SECTION 23.     AMENDATORY     85 O.S. 2011, Section 323, is amended to read as follows:
Section 323.  A.  Unless an employee gives oral or written notice to the employer within thirty (30) ten (10) business days of the date an injury occurs, or the employee receives medical attention from a licensed physician during the thirty-day period from the date a single event injury occurred, the rebuttable presumption shall be that the injury was not work-related.  Such presumption must be overcome by a preponderance of the evidence.
B.  Unless an employee gives oral or written notice to the employer within ninety (90) thirty (30) days of the employee’s separation of employment, there shall be a rebuttable presumption that an occupational disease or cumulative trauma injury did not arise out of and in the course of employment.  Such presumption must be overcome by a preponderance of the evidence.
C.  The Administrator of the Workers’ Compensation Court Commission shall provide printed notice forms, “Employee’s First Notice of Accidental Injury and Claim for Compensation”, to be used by the injured employee.  In addition to other information required by the Administrator Commission, such notice shall include the name and social security number of the employee; the name and address of the employer; the date, place, and type of injury; a declaration whether the employee has filed a claim for Social Security Disability Insurance benefits; and a declaration whether the employee is receiving Medicare benefits, is eligible for Medicare benefits or will become eligible for Medicare benefits within thirty (30) months of the filing of such notice.  Notice of injury filed by the employee with the Administrator Commission shall be verified subject to the laws of perjury of this state.
SECTION 24.     AMENDATORY     85 O.S. 2011, Section 324, is amended to read as follows:
Section 324.  A.  Unless a single-incident injury either renders the employee physically or mentally unable to do so, the employee shall report the injury to the employer on a form prescribed or approved by the Workers’ Compensation Commission and to a person or at a place specified by the employer, and if not reported in writing within ten (10) business days of the date of the injury, the employer shall not be responsible for disability, medical or other benefits.  All reporting procedures shall be reasonable and shall afford each employee reasonable notice of the reporting requirements.  Furthermore, any signed statement by an employee that an injury or illness was not work-related shall serve as an absolute bar against any future claim of workers’ compensation for that injury or illness.  If a claim is found to be noncompensable due to late filing of notice of injury, or for a prior statement having been signed by the employee indicating that the injury or illness was not work-related, there shall be no further remedy for the employee outside of this title.
B.  Upon the filing of an employer’s report of injury, the Workers’ Compensation Commission is authorized and directed to promulgate appropriate rules to establish and implement, for claims with respect to injuries occurring on or after November 1, 2010, a preliminary conference procedure designed to accomplish the following objectives: 
1.  To provide the claimant an opportunity to confer with a counselor on the staff of the Commission to be advised of the rights of the claimant under this act.  The conference may be held at the Career Tech center nearest to the accident or the residence of the claimant;
2.  To provide an opportunity for, but not to compel, a binding settlement of some or all the issues present at the time;
3.  To facilitate the resolution of issues without the expense of litigation or attorney fee for either party; and
4.   a.	To achieve compromise settlements entered into at or as a result of the preliminary conference and facilitating the filing of those joint petition settlements entered into pursuant to this act.
b.	The purpose and intent of this section is to affirm the duty of the Commission to provide assistance, thereby reducing litigation and workers’ compensation costs. 
C.  Any claim for any benefit under the Workers' Compensation Code shall be commenced with the filing of an Employee's First Notice of Accidental Injury and Claim for Compensation by the Employee with the Administrator.  The claim shall contain a statement that all matters stated therein are true and accurate and shall be signed by the claimant and the claimant's agent, if any.  Any person who signs this statement or causes another to sign this statement knowing the statement to be false shall be guilty of perjury.  An individual who signs on behalf of a claimant may be presumed to have the authorization of the claimant and to be acting at the claimant's direction.
B. D.  All answers and defenses to claims or other documents filed on behalf of a respondent or the respondent's insurer in a workers' compensation case shall contain a statement that all matters stated therein are true and accurate and shall be signed by the respondent, the insurer, or their respective agents, if any.  Any person who signs such a statement or causes another to sign such a statement, knowing the statement to be false, shall be guilty of perjury.  An individual who signs on behalf of a respondent, its insurer, or its agent may be presumed to have the authorization of the respondent, its insurer or agent and to be acting at their direction.  All claims so filed shall be heard by an administrative law judge.  Any agreed-upon settlement between the claimant and the employer shall be final upon the signed agreement by both parties.
C.  Any party shall have the right to request a prehearing conference or trial before the Workers' Compensation Court on any issue.  The Administrator of the Workers' Compensation Court shall, within seven (7) days of the receipt of such notification, set the matter for prehearing conference or trial at the earliest available time to be heard by the Court.
E.  1.  The Workers' Compensation Commission shall be bound by the Oklahoma Rules of Evidence or federal Daubert Guidelines, or both Oklahoma Rules of Evidence and federal Daubert Guidelines.  If there is a further question of evidence or procedure, Title 12 of the Oklahoma Statutes shall be used.
2.  When deciding any issue, administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence. 
F.  Hearings shall be open to the public and shall be stenographically reported or recorded in any other accurate and practicable manner.  The Commission is authorized to contract for the reporting of the hearings. 
G. 1. a.	All oral evidence or documentary evidence shall be presented to the designated representative of the Commission at the initial hearing on a controverted claim, which evidence shall be stenographically reported or recorded in any other accurate and practicable manner. 
b.	Each party shall present all evidence at the initial hearing.
2.   a.	Any party proposing to introduce medical reports or testimony of physicians at the hearing of a controverted claim shall, as a condition precedent to the right to do so, furnish to the opposing party and to the Commission copies of the written reports or depositions of the physicians of their findings and opinions at least twenty (20) days prior to the date of the hearing.  However, if no written reports or depositions are available to a party, then the party shall, in lieu of furnishing the report or deposition, notify in writing the opposing party and the Commission of the name and address of the physicians proposed to be used as witnesses at least twenty (20) days prior to the hearing and the substance of their anticipated testimony.
b.	If the opposing party desires to cross-examine the physician, the opposing party shall notify the party submitting a medical report as soon as practicable but no less than ten (10) days prior to the scheduled hearing, in order that the party submitting a medical report may make every effort to have the physician present for the hearing.
3.  A party failing to observe the requirements of this subsection may not be allowed to introduce medical reports or testimony of physicians at a hearing, except at the discretion of the hearing officer or the Commission.
4.  Medical reports or depositions shall only be allowed to assist the administrative law judge in determining compensability of the claim.
SECTION 25.     AMENDATORY     85 O.S. 2011, Section 326, is amended to read as follows:
Section 326.  A.  Within seven (7) days of actual knowledge of an injury, the employer shall provide the employee reasonable and necessary medical care with a physician of the employer’s choice.  The providing of medical care shall not be construed as an admission of compensability of an injury or illness.  The physician selected by the employer shall become the treating physician.
B.  If the employer fails or neglects to provide medical treatment within seven (7) days after actual knowledge is received of an injury, the injured employee may select a physician to provide medical treatment at the expense of the employer; provided, however, that the injured employee, or another in the employee’s behalf, may obtain emergency treatment at the expense of the employer where such emergency treatment is not provided by the employer.
C.  If a self-insured employer, group self-insurance association plan, an employer’s workers’ compensation insurance carrier or an insured has previously contracted with a certified workplace medical plan, the employer shall select for the injured employee a the treating physician from the physicians listed within the network of the certified workplace medical plan.  The claimant may apply for a change of physician by utilizing the dispute resolution process set out in the certified workplace medical plan on file with the State Department of Health.  If the dispute resolution process has been exhausted, the Workers’ Compensation Court may appoint an independent medical examiner to determine the nature of medical treatment needed by the injured worker.
D.  The term “physician” as used in this section shall mean any person licensed in this state as a medical doctor, chiropractor, podiatrist, dentist, osteopathic physician or optometrist.  The Court may accept testimony from a psychologist if the testimony is requested by the Court.
E.  Where If the employee is not covered by a certified workplace medical plan, the employer shall select the treating physician as provided in subsection A of this section.  The Court on application of the employee shall order one change of treating physician for any affected body part.  If the employer objects, the Court shall set the request for change of treating physician for hearing within ten (10) days.  Provided, that no change of treating physician can be authorized for a part of the body if no authorized medical care has been provided for that part of the body for one hundred eighty (180) days prior to the date of the filing of the application for change of treating physician.  Provided further, regardless of the number of parts of the body injured, a maximum of two (2) changes of physician may be allowed in a claim.  In the event the employee makes application for such a change, the employee shall list on such application three (3) proposed physicians who are qualified to treat the body part affected.  The employer may agree to one of the physicians listed by the employee or submit its own list of three (3) physicians.  If the employer and employee do not agree on the physician, the Court of Existing Claims or the Workers’ Compensation Commission, depending on the date of the injury, may select a physician who is qualified to treat the body part affected and who can see the employee within a reasonable time, with preference given to physicians who are qualified independent medical examiners.
F.  Diagnostic tests shall not be repeated sooner than six (6) months from the date of the test unless agreed to by the parties or ordered by the Commission or Court of Existing Claims, depending on the date of the injury.
G.  Effective March 1, 2012, the scope and duration of medical treatment shall be provided in accordance with the current edition of the “Official Disability Guidelines”, as published by the Work Loss Data Institute.  For medical treatment not addressed by the Official Disability Guidelines or addressed but not recommended in the ODG section in regard to injuries to the cervical, thoracic, or lumbar spine, the Physician Advisory Committee shall adopt the Oklahoma Treatment Guidelines as provided in Section 73 373 of this act title.  Medical treatment provided by or at the direction of the treating physician in accordance with the current edition of the Official Disability Guidelines or Oklahoma Treatment Guidelines is presumed to be reasonable and necessary medical care.  The employer or insurance carrier shall not be responsible for charges for medical treatment not provided in accordance with the current edition of the Official Disability Guidelines or Oklahoma Treatment Guidelines unless the medical treatment was provided in a medical emergency, the medical treatment was preauthorized by the employer or insurance carrier, or the medical treatment is approved by the Court Workers’ Compensation Commission upon a finding based on clear and convincing evidence provided by a qualified independent medical examiner that medical treatment provided according to either ODG or OTG is not in the best interest of the employee.
H.  Unless recommended by the treating doctor at the time claimant reaches maximum medical improvement or by an independent medical examiner, continuing medical maintenance shall not be awarded by the Court.  At the request of any party, the judge shall appoint an independent medical examiner to determine the nature and extent of continuing medical maintenance.  The issue of continuing medical maintenance may be reviewed by the Court at any time.  The employer or insurance carrier shall not be responsible for continuing medical maintenance or pain management treatment that is outside the parameters established by the Physician Advisory Committee.  The employer or insurance carrier shall not be responsible for continuing medical maintenance or pain management treatment not previously ordered by the Court or approved in advance by the employer or insurance carrier Duration of treatment is subject to the limitation established in the treatment guidelines and protocols recommended by the Physician Advisory Committee and approved by the Chief Medical Officer unless waived by the employer or approved by the Chief Medical Officer.
I.  An employee claiming or entitled to benefits under the Workers’ Compensation Code, shall, if ordered by the Court or Commission or requested by the employer or insurance carrier, submit himself or herself for medical examination.  If an employee refuses to submit himself or herself to examination, his or her right to prosecute any proceeding under the Workers’ Compensation Code shall be suspended, and no compensation shall be payable for the period of such refusal.
J.  For compensable injuries resulting in the use of a medical device, ongoing service for the medical device would be provided in situations including, but not limited to, medical device battery replacement, ongoing medication refills related to the medical device, medical device repair or medical device replacement.
K.  The employer shall reimburse the employee for the actual mileage in excess of twenty (20) miles round-trip to and from the employee’s home to the location of a medical service provider for all reasonable and necessary treatment, for an evaluation of an independent medical examiner and for any evaluation made at the request of the employer or insurance carrier.  The rate of reimbursement for such travel expense shall be the official reimbursement rate as established by the State Travel Reimbursement Act.  In no event shall the reimbursement of travel for medical treatment or evaluation exceed six hundred (600) miles round trip.
SECTION 26.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 326.1 of Title 85, unless there is created a duplication in numbering, reads as follows:
The employer shall not be liable for any of the payments provided for by the Workers’ Compensation Code if the Workers’ Compensation Commission determines that the injury is not compensable.
SECTION 27.     AMENDATORY     85 O.S. 2011, Section 327, is amended to read as follows:
Section 327.  A.  For the express purpose of reducing the overall cost of medical care for injured workers in the workers’ compensation system by five percent (5%), the Administrator of the Workers’ Compensation Court is hereby directed to develop a new an “Oklahoma Workers’ Compensation Medical Fee Schedule” to be implemented by January 1, 2012.  Thereafter, the Administrator Workers’ Compensation Commission shall conduct a review of the Fee Schedule every two (2) years.  The Fee Schedule shall establish the maximum rates that medical providers shall be reimbursed for medical care provided to injured workers, including, but not limited to, charges by physicians, dentists, counselors, hospitals, ambulatory and outpatient facilities, clinical laboratory services, diagnostic testing services, and ambulance services, and charges for durable medical equipment, prosthetics, orthotics, and supplies.
B.  Reimbursement for medical care shall be prescribed and limited by the Fee Schedule as adopted by the Administrator or Commission, after notice and public hearing.  The director of the Oklahoma State Employees Group Insurance Board shall provide the Administrator and Commission such information as may be relevant in the development of the Fee Schedule.  The Administrator and Commission shall develop the Fee Schedule in a manner in which quality of medical care is assured and maintained for injured workers.  The Administrator and Commission shall give due consideration to additional requirements for physicians treating an injured worker under this act the Workers’ Compensation Code, including, but not limited to, communication with claims representatives, case managers, attorneys, and representatives of employers, and the additional time required to complete forms for the Court of Existing Claims and the Workers’ Compensation Commission, insurance carriers, and employers.
C.  In making adjustments to the Fee Schedule, the Administrator Commission shall use, as a benchmark, the reimbursement rate for each Current Procedural Terminology (CPT) code provided for in the fee schedule published by the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services for use in Oklahoma (Medicare Fee Schedule) on the effective date of this act August 26, 2011.  For services not valued by CMS, the Administrator and Commission shall establish values based on the usual, customary and reasonable medical payments to health care providers in the same trade area for comparable treatment of a person with similar injuries.
1.  No reimbursement shall be allowed for any magnetic resonance imaging (MRI) unless the MRI unit produces a field strength that is equal to or greater than 1.0 Tesla.  For all other radiology procedures, the reimbursement rate shall be the lesser of the reimbursement rate allowed by the 2010 Oklahoma Fee Schedule or two hundred seven percent (207%) of the Medicare Fee Schedule.
2.  For reimbursement of medical services for Evaluation and Management of injured employees as defined in the fee schedule adopted by the Administrator or Commission, the reimbursement rate shall not be less than one hundred fifty percent (150%) of the Medicare Fee Schedule.
3.  Any entity providing durable medical equipment, prosthetics, orthotics or supplies must be accredited by a CMS–approved accreditation organization.  In the event a physician provides durable medical equipment, prosthetics, orthotics, prescription drugs, or supplies to a patient ancillary to the patient visit, reimbursement will be no more than ten percent (10%) above cost.
4.  The Administrator and Commission shall develop a reasonable stop-loss provision of the Fee Schedule to provide for adequate reimbursement for treatment for major burns, severe head and neurological injuries, multiple system injuries, and other catastrophic injuries requiring extended periods of intensive care.
D.  The right to recover charges for every type of medical care for injuries arising out of and in the course of covered employment as defined in this act the Workers’ Compensation Code shall lie solely with the Workers’ Compensation Court of Existing Claims for claims for injuries occurring before November 1, 2013, and with the Commission and its administration for claims for injuries occurring on or after November 1, 2013.  When a medical care provider has brought a claim in the Court to obtain payment for services, a party who prevails in full on the claim shall be entitled to a reasonable attorney fee.
E.  Nothing in this section shall prevent an employer, insurance carrier, group self-insurance association, or certified workplace medical plan from contracting with a provider of medical care for a reimbursement rate that is greater than or less than limits established by the Fee Schedule.
F.  A treating physician may not charge more than Four Hundred Dollars ($400.00) per hour for preparation for or testimony at a deposition or court appearance in connection with a claim covered by the Workers’ Compensation Code.
G.  The Administrator’s or Commission’s review of medical and treatment charges pursuant to this section shall be conducted pursuant to the Fee Schedule in existence at the time the medical care or treatment was provided.  The order approving the medical and treatment charges pursuant to this section shall be enforceable by the Court of Existing Claims or the Commission in the same manner as provided in the Workers’ Compensation Code for the enforcement of other compensation payments.  Any party feeling aggrieved by the order, decision or award of the Administrator shall, within ten (10) days, have the right to request a hearing on such medical and treatment charges by a judge of the Court of Existing Claims for claims for injuries occurring before November 1, 2013, or by the Commission for claims for injuries occurring on or after November 1, 2013.  The judge of the Court or administrative law judge of the Commission, as applicable, may affirm the decision of the Administrator, or reverse or modify the decision only if it is found to be contrary to the Fee Schedule existing at the time the medical care or treatment was provided.  The order of the judge or administrative law judge shall be subject to the same appellate procedure set forth for all other orders of the Court or Commission.
H.  Charges for prescription drugs dispensed by a pharmacy shall be limited to ninety percent (90%) of the average wholesale price of the prescription, plus a dispensing fee of Five Dollars ($5.00) per prescription.  “Average wholesale price” means the amount determined from the latest publication designated by the Administrator Commission.  Physicians shall prescribe and pharmacies shall dispense generic equivalent drugs when available.  If the NDC for the drug product dispensed is for a repackaged drug, then the maximum reimbursement shall be the lesser of the original labeler’s NDC or the lowest cost therapeutic equivalent drug product.  Compounded medications shall be billed by the compounding pharmacy at the ingredient level, with each ingredient identified using the applicable NDC of the drug product, and the corresponding quantity.  Ingredients with no NDC area are not separately reimbursable.  Payment shall be based upon a sum of the allowable fee for each ingredient plus a dispensing fee of five dollars ($5.00) per prescription.
I.  When medical care includes prescription drugs dispensed by a physician or other medical care provider, the employer or insurance carrier shall be required to pay the lesser of the reimbursement amount specified under the schedule of fees adopted by the Administrator or Commission, the reimbursement amount for prescription drugs obtained by mail order, when mail order is available, or the reimbursement amount for prescription drugs obtained at a retail pharmacy.  If the National Drug Code (NDC) for the drug product dispensed is for a repackaged drug, then the maximum reimbursement shall be the lesser of the original labeler’s NDC or the lowest cost therapeutic equivalent drug product.  Compounded medications shall be billed by the compounding pharmacy.
J.  Implantables are paid in addition to procedural reimbursement paid for medical or surgical services.  A manufacturer’s invoice for the actual cost to a physician, hospital or other entity of an implantable device shall be adjusted by the physician, hospital or other entity to reflect, at the time implanted, all applicable discounts, rebates, considerations and product replacement programs and must be provided to the payer by the physician or hospital as a condition of payment for the implantable device.  In the event the physician, or an entity that the physician has a financial interest in, other than an ownership interest of less than five percent (5%) in a publicly traded company provides implantable devices, this relationship must be disclosed to patient, employer, insurance company, third-party administrator, certified workplace medical plan, case managers, and attorneys representing claimant and defendant.  In the event the physician, or an entity that the physician has a financial interest in, other than an ownership interest of less than five percent (5%) in a publicly traded company, buys and resells implantable devices to the hospital or another physician, that markup shall be limited to ten percent (10%) above cost.
K.  Payment for medical care as required by this act the Workers’ Compensation Code shall be due within forty-five (45) days of the receipt by the employer or insurance carrier of a complete and accurate invoice, unless the employer or insurance carrier has a good-faith reason to request additional information about such invoice.  Thereafter, a judge of the Court of Existing Claims or the Commission, as applicable, may assess a penalty up to twenty-five percent (25%) for any amount due under the Fee Schedule that remains unpaid upon the finding by the Court or Commission that no good-faith reason existed for the delay in payment.  In the event the Court or Commission finds a pattern of an employer or insurance carrier willfully and knowingly delaying payments for medical care, the Court or Commission may assess a civil penalty of not more than Five Thousand Dollars ($5,000.00) per occurrence.
L.  In the event 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 Administrator or Commission, for the missed appointment.  In the absence of a good-faith reason for missing the appointment, the Court or Commission shall order the employee to reimburse the employer or insurance company for such charge.
M.  Physicians providing treatment under this act the Workers’ Compensation Code shall disclose under penalty of perjury to the Administrator of the Workers’ Compensation Court of Existing Claims or the Commission, on a form prescribed by the Administrator Commission, any ownership or interest in any health care facility, business, or diagnostic center that is not the physician’s primary place of business.  Such disclosure shall include any employee leasing arrangement between the physician and any health care facility that is not the physician’s primary place of business.  A physician’s failure to disclose as required by this section shall be grounds for the Administrator or Commission to disqualify the physician from providing treatment under this act the Workers’ Compensation Code.
SECTION 28.     AMENDATORY     85 O.S. 2011, Section 328, is amended to read as follows:
Section 328.  A.  If a self-insured 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, has contracted with a workplace medical plan that is certified by the State Commissioner of Health as provided in this act section, the employer shall select for the injured employee a the treating physician from the physicians listed within the network of the certified workplace medical plan.  The claimant may apply to the certified workplace medical plan for a one-time change of physician to another appropriate physician within the network of the certified workplace medical plan by utilizing the dispute resolution process set out in the certified workplace medical plan on file with the State Department of Health.  Notwithstanding any other provision of law, those employees who are subject to such certified workplace medical plan shall receive medical treatment in the manner prescribed by the plan.
B.  The provisions of this section shall not preclude an employee, who has exhausted the dispute resolution process of the certified workplace medical plan, from petitioning the Workers’ Compensation Court of Existing Claims or the Workers’ Compensation Commission, as applicable, for a change of treating physician within the certified workplace medical plan or, if a physician who is qualified to treat the employee’s injuries is not available within the plan, for a change of physician outside the plan, if the physician agrees to comply with all the rules, terms and conditions of the certified workplace medical plan; or an employee from seeking emergency medical treatment.
C.  Any person or entity may make written application to the State Commissioner of Health to have a workplace medical plan certified that provides management of quality treatment to injured employees for injuries and diseases compensable under the Workers’ Compensation Code.  Each application for certification shall be accompanied by a fee of One Thousand Five Hundred Dollars ($1,500.00).  A workplace medical plan may be certified to provide services to a limited geographic area.  A certificate is valid for a five-year period, unless revoked or suspended.  Application for certification shall be made in the form and manner and shall set forth information regarding the proposed program for providing services as the State Commissioner of Health may prescribe.  The information shall include, but not be limited to:
1.  A list of the names of all medical providers who will provide services under the plan, together with appropriate evidence of compliance with any licensing or certification requirements for those providers to practice in this state; and
2.  A description of the places and manner of providing services under the plan.
D.  1.  The State Commissioner of Health shall not certify a plan unless the State Commissioner of Health finds that the plan:
a.	proposes to provide quality services for all medical services which:
(1)	may be required by the Workers’ Compensation Code in a manner that is timely, effective and convenient for the employee, and
(2)	utilizes medical treatment guidelines and protocols substantially similar to those established for use by medical service providers which have been recommended by the Physician Advisory Committee and adopted by the Administrator or Commission pursuant to this act the Workers’ Compensation Code.  If the Administrator or Workers’ Compensation Commission has not adopted medical treatment guidelines and protocols, the State Commissioner of Health may certify a plan that utilizes medical guidelines and protocols established by the plan if, at the discretion of the State Commissioner of Health, the guidelines and protocols are reasonable and will carry out the intent of the Workers’ Compensation Code.  Certified plans must utilize medical treatment guidelines and protocols substantially similar to those adopted by the Administrator pursuant to this act the Workers’ Compensation Code, as such guidelines and protocols become adopted,
b.	is reasonably geographically convenient to residents of the area for which it seeks certification,
c.	provides appropriate financial incentives to reduce service costs and utilization without sacrificing the quality of service,
d.	provides adequate methods of peer review, utilization review and dispute resolution to prevent inappropriate, excessive or medically unnecessary treatment, and excludes participation in the plan by those providers who violate these treatment standards,
e.	requires the dispute resolution procedure of the plan to include a requirement that disputes on an issue, including a subsequent change of physician as described in the provisions of this section, related to medical care under the plan, be attempted to be resolved within ten (10) days of the time the dispute arises and if not resolved within ten (10) days, the employee may pursue remedies in the Court. of Existing Claims or the Workers’ Compensation Commission, depending on the date of the injury,
f.	provides aggressive case management for injured employees and a program for early return to work,
g.	provides workplace health and safety consultative services,
h.	provides a timely and accurate method of reporting to the State Commissioner of Health necessary information regarding medical service costs and utilization to enable the State Commissioner of Health to determine the effectiveness of the plan,
i.	authorizes necessary emergency medical treatment for an injury provided by a provider of medical, surgical, and hospital services who is not a part of the plan,
j.	does not discriminate against or exclude from participation in the plan any category of providers of medical, surgical, or hospital services and includes an adequate number of each category of providers of medical, surgical, and hospital services to give participants access to all categories of providers and does not discriminate against ethnic minority providers of medical services, and
k.	complies with any other requirement the State Commissioner of Health determines is necessary to provide quality medical services and health care to injured employees.
2.  The State Commissioner of Health may accept findings, licenses or certifications of other state agencies as satisfactory evidence of compliance with a particular requirement of this section.
E.  If any insurer, except CompSource Oklahoma, fails to contract with or provide access to a certified workplace medical plan, an insured, after sixty (60) days’ written notice to its insurance carrier, shall be authorized to contract independently with a plan of his or her choice for a period of one (1) year five (5) years, to provide medical care under the Workers’ Compensation Code.  The insured shall be authorized to contract, after sixty (60) days’ written notice to its insurance carrier, for additional one-year five-year periods if his or her insurer has not contracted with or provided access to a certified workplace medical plan.
F.  If CompSource Oklahoma fails to contract with at least three certified workplace medical plans, each covering at least fifty counties, then the insured, after sixty (60) days’ written notice to CompSource Oklahoma, shall be authorized to contract independently with a plan of the insured’s choice for a period of one (1) year to provide medical care under the Workers’ Compensation Code.  The insured shall be authorized to contract, after sixty (60) days’ written notice to CompSource Oklahoma, for additional one-year periods if CompSource Oklahoma has not contracted with or fails to continue contracts with at least three certified workplace medical plans covering at least fifty counties.  A workers’ compensation insurance carrier, CompSource Oklahoma, or a group self-insurance association plan may grant a ten-percent premium reduction to an employer who is not experience rated when the employer participates in a certified workplace medical plan.
G.  The State Commissioner of Health shall refuse to certify or shall revoke or suspend the certification of a plan if the State Commissioner of Health finds that the program for providing medical or health care services fails to meet the requirements of this section, or service under the plan is not being provided in accordance with the terms of the plan.
H.  The State Commissioner of Health shall implement a site visit protocol for employees of the State Department of Health to perform an inspection of a certified workplace medical plan to ensure that medical services to a claimant and the medical management of the claimant’s needs are adequately met in a timely manner and that the certified workplace medical plan is complying with all other applicable provisions of this act the Workers’ Compensation Code and the rules of the State Department of Health.  Such protocol shall include, but not be limited to:
1.  A site visit shall be made to each certified workplace medical plan not less often than once every year, but not later than thirty (30) days following the anniversary date of issuance of the initial or latest renewal certificate;
2.  A site visit shall conclude with a determination that a certified workplace medical plan is or is not operating in accordance with its latest application to the State Department of Health;
3.  Compliant operations shall include, but not be limited to:
a.	timely and effective medical services available with reasonable geographic convenience,
b.	appropriate treatment guidelines and protocols, and
c.	effective programs for utilization review, case management, grievances, and dispute resolution;
4.  Performance of a site visit shall include:
a.	inspection of organizational documentation,
b.	inspection of systems documentation and processes,
c.	random or systematic sampling of closed and open case management cases (files),
d.	random or systematic sampling, or a one-hundred-percent inspection of all dispute resolution, grievance, and Department of Health request for assistance files,
e.	workplace medical plan employee and management interviews, as appropriate;
5.  An initial site visit may occur with an interval of less than twelve (12) months to a recently certified plan, or a site visit may occur more often than once in every twelve (12) months if the State Commissioner of Health has reason to suspect that a plan is not operating in accordance with its certification;
6.  If a deficient practice is identified during a site visit, the State Department of Health shall require a certified workplace medical plan to submit a timely and acceptable written plan of correction, and then may perform a follow-up visit or visits to ensure that the deficient practice has been eliminated;
7.  A deficient practice that is not remedied by a certified workplace medical plan on a timely basis shall require the State Commissioner of Health to revoke or to suspend the certification of a plan;
8.  The fees payable to the State Department of Health shall be:
a.	One Thousand Five Hundred Dollars ($1,500.00) for an initial, annual site visit,
b.	One Thousand Dollars ($1,000.00) if a follow-up visit is performed,
c.	separate from the once in five (5) years certification application fee, and
d.	charged only if less than two site visits occur in a twelve-month period; and
9.  In addition to the site visit fee, employees of the State Department of Health may charge to the certified workplace medical plan reasonable travel and travel-related expenses for the site visit such as overnight lodging and meals.  A certified workplace medical plan shall reimburse travel expenses to the State Department of Health at rates equal to the amounts then currently allowed under the State Travel Reimbursement Act.
I.  The State Board of Health shall adopt such rules as may be necessary to implement the provisions of this act and this section.  Such rules shall authorize any person to petition the State Commissioner of Health for decertification of a certified workplace medical plan for material violation of any rules promulgated pursuant to this section.
J.  All state agencies shall adopt and implement the certified workplace medical plan of their insurer’s choice by November 1, 2014.
K.  An employee shall obtain written confirmation from the certified workplace medical plan that the dispute resolution procedure of the certified workplace medical plan has been exhausted before seeking legal relief on an issue related to medical care under the plan, including a subsequent change of physician; provided, the dispute resolution procedure shall create a process which shall attempt to resolve the dispute within ten (10) days of the time the dispute arises and, if not resolved within ten (10) days, the employee may pursue remedies in the Workers’ Compensation Commission or Court of Existing Claims, depending upon the date of injury.
L.  For those employees covered by a certified workplace medical plan, any medical evaluation obtained outside the plan, after the commencement of treatment under the plan and prior to obtaining written confirmation from the plan that the dispute resolution process has been exhausted, shall not be admissible unless such evaluation provides clear and convincing evidence that the treatment offered under the plan is contrary to the nationally recognized treatment guidelines adopted by the plan.
M.  The Workers’ Compensation Commission shall not alter any course of treatment under a certified workplace medical plan, unless the Chief Medical Officer finds clear and convincing evidence that the treatment offered under the plan is contrary to the nationally recognized treatment guidelines adopted by the plan.
SECTION 29.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 328.1 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  1.  The Oklahoma Department of Labor shall establish a Workers’ Health and Safety Division, hereinafter referred to as the “Division”.
2.  The Division shall collect and serve as a repository for statistical information on workers’ health and safety.  In cooperation with and with the assistance of the Workers’ Compensation Commission and the Insurance Department, the Division shall analyze and use the information to identify and assign priorities to safety needs and to better coordinate the safety services provided by public or private organizations, including insurance carriers.  In cooperation with and with the assistance of the Workers’ Compensation Commission and the Insurance Department, the Division shall promote workers’ health and safety through educational programs and other innovative programs developed by the Division.
3.  The Division shall coordinate or supervise the collection of information relating to job safety.
4.  The Commissioner of Labor, the Chair of the Workers’ Compensation Commission, and the Insurance Commissioner shall function as an advisory committee to resolve questions regarding duplication of efforts, assignment of new programs, and other matters that need cooperation and coordination.
5.   a.	The Division shall publish or procure and issue educational books, pamphlets, brochures, films, videotapes, and other informational and educational material.  Specific educational material shall be directed to high-risk industries and jobs and shall specifically address means and methods of avoiding high frequency but preventable workers’ injuries.  Other educational material shall be directed to business and industry generally and shall specifically address means and methods of avoiding common workers’ injuries.
b.	Specific decisions as to what issues and problems should be addressed by such information shall be made by the Division in cooperation and with the assistance of the Workers’ Compensation Commission and the Insurance Department and with approval of the Commissioner of Labor after assigning appropriate priorities based on frequency of injuries, degree of hazard, severity of injuries, and similar considerations.
c.	Such educational materials shall include specific references to the requirements of state and federal laws and regulations, to recommendations and practices of business, industry, and trade associations, and, where needed, to recommended work practices based on recommendations made by the Division.
6.  The Division shall cooperate with employers and employees to develop means and methods of educating employees and employers with regard to workplace safety.
7.  The Division shall encourage other entities to develop safety courses, safety plans, and safety programs.
8.  In cooperation with and with the assistance of the Workers’ Compensation Commission and the Insurance Department, the Division shall certify safe employers to provide peer review safety programs.
9.  In cooperation with and with the assistance of the Workers’ Compensation Commission and the Insurance Department, the Division shall advise insurance carrier loss-control service organizations of hazard classifications, specific employers, industries, occupations, or geographic regions to which loss-control services should be directed or of the identity and types of injuries or occupational diseases for prevention of the same to which loss-control services should be directed and shall advise insurance carrier loss-control service organizations of safety needs and priorities recommended by the Division in cooperation with and with the assistance of the Department of Labor and the Insurance Department.
B.  1.  In cooperation with and with the assistance of the Workers’ Compensation Commission and the Insurance Department, the Division shall establish and maintain a job safety information system.
2.   a.	The job safety information system shall include a comprehensive data base that incorporates all pertinent information relating to each reported injury.
b.	The identity of the employee is confidential and may not be disclosed as part of the job safety information system.
3.  Employers shall file with the Division such reports as may be necessary.  The Department of Labor shall promulgate rules and prescribe the form and manner of the reports.
4.  In cooperation with and with the assistance of the Workers’ Compensation Commission and the Insurance Department, the Division is authorized, empowered, and directed to obtain, from any state agency, data and statistics, including those compiled for the purpose of rate-making.
5.  The Division shall consult the Workers’ Compensation Commission and any other affected state agencies in the design of data information and retrieval systems that will accomplish the mutual purposes of those agencies and of the Division.
C. 1. a.	In cooperation with and with the assistance of the Workers’ Compensation Commission and the Insurance Department, the Division shall develop a program, including injury frequency, to identify extrahazardous employers.  The term “extrahazardous employer” includes an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer’s business or industry, an employer whose experience modifier is identified by the Commission as too high, and such other employers as may, following a public hearing, be identified as extrahazardous.
b.	The Division shall notify each identified extrahazardous employer or the carrier for the employer that the employer has been identified as an extrahazardous employer.
2.   a.	An employer who receives notification under subparagraph b of paragraph 1 of this subsection must obtain a safety consultation within thirty (30) days from the Department of Labor, the employer’s insurance carrier, or another professional source approved by the Division for that purpose.
b.	The safety consultant shall file a written report with the Division and the employer setting out any hazardous conditions or practices identified by the safety consultation.
3.  The employer and the consultant shall formulate a specific accident prevention plan that addresses the hazards identified by the consultant.  The employer shall comply with the accident prevention plan.
4.  The Division may investigate accidents occurring at the work sites of an employer for whom a plan has been formulated under paragraph 3 of this subsection, and the Division may otherwise monitor the implementation of the accident prevention plan as it finds necessary.
5.   a.	Six (6) months after the formulation of an accident prevention plan prescribed by paragraph 3 of this subsection, the Division shall conduct a follow-up inspection of the employer’s premises.  The Division may require the participation of the safety consultant who performed the initial consultation and formulated the safety plan.
b.	If the Division determines that the employer has complied with the terms of the accident prevention plan or has implemented other acceptable corrective measures, the Division shall so certify.
c.	An employer who the Division determines has failed or refused to implement the accident prevention plan or other suitable hazard abatement measures is subject to civil penalties as follows:
(1)	the Department of Labor may assess a civil penalty against an employer who fails or refuses to implement the accident prevention plan or other suitable hazard abatement procedures in an amount up to One Thousand Dollars ($1,000.00) per day of violation payable to the Death and Permanent Total Disability Trust Fund, and
(2)	the Department of Labor may petition the district court of the county where the business is located for an order enjoining the employer from engaging in further employment until such time as the employer implements the prevention plan or abatement measure described above or makes payment of all civil penalties.
6.  If, at the time of the inspection required under subparagraph a of paragraph 5 of this subsection, the employer continues to exceed the injury frequencies that may reasonably be expected in that employer’s business or industry, the Division shall continue to monitor the safety conditions at the work site and may formulate additional safety plans reasonably calculated to abate hazards.  The employer shall comply with the plans and may be subject to additional penalties for failure to implement the plan or plans.
7.  An employer or the employer’s designee may request a hearing before the Commissioner of Labor to contest findings made by the Division under this section.
8.  The identification as an extrahazardous employer under this section is not admissible in any judicial proceeding unless the Division has determined that the employer is not in compliance with this section and unless that determination has not been reversed or superseded at the time of the event giving rise to the judicial proceeding.
D.  1.  Any insurance company licensed to provide casualty insurance in the State of Oklahoma and desiring to write workers’ compensation insurance in Oklahoma shall maintain or provide accident prevention services as a prerequisite to write workers’ compensation insurance.  The services shall be adequate to furnish accident prevention programs required by the nature of its policyholders’ operations and shall include surveys, recommendations, training programs, consultations, analyses of accident causes, industrial hygiene, and industrial health services to implement the program of accident prevention services.
2.  Notice that services are available to the policyholder from the insurance company must appear in no less than ten-point bold type on the front of each workers’ compensation insurance policy delivered or issued for delivery in the state.
3.  At least once each year, each insurance company writing workers’ compensation insurance in Oklahoma must submit to the Division and the Insurance Commissioner detailed information on the type of accident prevention services offered to that insurance company’s policyholders.  The information must include any additional information required by the Division and the Insurance Commissioner.
4.  In cooperation with and with the assistance of the Workers’ Compensation Commission and the Insurance Department, the Division shall conduct inspections to determine the adequacy of the accident prevention services required by paragraph 1 of this subsection at least every two (2) years for each insurance company writing workers’ compensation insurance in Oklahoma.
5.  If the insurance company does not maintain or provide the accident prevention services required by this subsection or if the insurance company does not use the services in a reasonable manner to prevent injury to employees of its policyholders, the insurance company may be subjected to the same civil penalties as are assessable and enforceable against employers as set forth in subparagraph c of paragraph 5 of subsection C of this section and shall be subject to suspension or revocation of license to do business in this state by the Insurance Commissioner.
6.  The Department of Labor shall employ the qualified personnel necessary to enforce this section.
E.  1.  Except as provided in paragraph 5 of subsection D of this section, the insurance company, the agent, servant, or employee of the insurance company or self-insured employer, or a safety consultant who performs a safety consultation under this section shall have no liability with respect to any accident based on the allegation that the accident was caused or could have been prevented by a program, inspection, or other activity or service undertaken by the insurance company or self-insured employer for the prevention of accidents in connection with operations of the employer.
2.  Provided, however, this immunity shall not affect the liability of the insurance carrier or self-insured employer for compensation or as otherwise provided in this section.
F.  This section does not create an independent cause of action at law or in equity.
SECTION 30.     NEW LAW     A new section of law not to be codified in the Oklahoma Statutes reads as follows:
A.  For the fiscal year beginning July 1, 2014, the Workers’ Compensation Commission shall allocate Five Hundred Thousand Dollars ($500,000.00) to a special project to be conducted by the Oklahoma Department of Labor for the following purposes:
1.  Identification of industries or jobs having a high incidence of injuries;
2.  Determination of the causes of injuries of which there is a high incidence; and
3.  The provision of educational or advisory services to employers and employees designed to reduce the incidence of such injuries.
B.  It is the intent of this section to provide information and other services to employers and employees that will improve workplace safety in the State of Oklahoma.
C.  For succeeding fiscal years, the Commission in consultation with the Commissioner of Labor shall determine to what extent the project should be funded.
SECTION 31.     AMENDATORY     85 O.S. 2011, Section 329, is amended to read as follows:
Section 329.  A.  The Workers’ Compensation Court of Existing Claims shall create, maintain and review a list of licensed physicians who shall serve as independent medical examiners from a list of licensed physicians who have completed such course study as the Administrator of the Workers’ Compensation Court of Existing Claims may require and who have been recommended as independent medical examiners by the Physician Advisory Committee; provided, until the Workers’ Compensation Commission creates a new list of licensed physicians, pursuant to Section 34 of this act, the list created by the Workers’ Compensation Court and in effect on October 31, 2013, shall remain in effect.  The Court shall, to the best of its ability, include the most experienced and competent physicians in the specific fields of expertise utilized most often in the treatment of injured employees.  The period of qualification shall be two years.  Physicians may be qualified for successive two-year periods.  Physicians serving as Court-qualified independent medical examiners on the effective date of this act October 31, 2013, shall serve the remainder of their respective two-year qualification periods and may reapply for successive qualification periods.  The Court may remove an independent medical examiner from the list for cause.  For purposes of this section, a physician shall be either a licensed medical doctor or a licensed doctor of osteopathy and shall include a person licensed by another state who would be qualified to be a licensed medical doctor or a licensed doctor of osteopathy under the laws of this state.
B.  The Court at any time, regardless of the date of injury, may appoint an independent medical examiner to assist in determining any issue before the Court.  In the event surgery is recommended by a treating physician, upon request of the employer, an independent medical examiner shall be appointed by the Court to determine the reasonableness and necessity of the recommended surgery.  Such independent medical examiner shall be qualified to perform the type of surgery recommended.
C.  An independent medical examiner in a case involving permanent disability shall not be a treating physician of the employee and shall not have treated the employee with respect to the injury for which the claim is being made or the benefits are being paid.
D.  The Court shall select an independent medical examiner from the list of independent medical examiners within fifteen (15) days when after the employer or the employee petitions the Court for the selection of an independent medical examiner.  The independent medical examiner shall be certified by a recognized American medical or osteopathic specialty board in the area or areas appropriate to the condition under review.
E.  The Court shall, to the best of its ability, maintain a geographic balance of independent medical examiners.
F.  Counsel for the employee and employer are responsible for transmittal of the employee’s medical records to the independent medical examiner within ten (10) days of appointment.
G.  After a physical examination and review of medical records and other appropriate information, including depositions and surveillance video, the independent medical examiner shall submit a verified written report to the Court and to the parties.  In the event the independent medical examiner determines that more medical treatment is necessary, the employer shall designate a treating physician to provide the indicated treatment.
H.  Any independent medical examiner selected pursuant to the provisions of this section shall be reimbursed for the medical examination, reports and fees in a reasonable and customary amount set by the Court, and these costs shall be borne by the employer.
I.  The Court, in consultation with the Advisory Council on Workers’ Compensation, shall create a review process to oversee on a continuing basis the quality of performance and the timeliness of the submission of medical findings by independent medical examiners.
J.  If the Court does not follow the opinion of the independent medical examiner on any issue, the Court shall set out its reasons for deviating from the opinion of the independent medical examiner.  The opinion of the independent medical examiner shall be followed unless there is clear and convincing evidence to the contrary.
K.  Upon receipt of an independent medical examiner’s report, any party shall have the right to object to the introduction of the report into evidence.  The objection must be made by giving written notification to all parties and to the Court within ten (10) days after receipt of the report.  The employer shall be responsible for the reasonable charges of the physician for such testimony, preparation time, and the expense of the deposition.
SECTION 32.     AMENDATORY     85 O.S. 2011, Section 330, is amended to read as follows:
Section 330.  For cases not covered by a certified workplace medical plan, and where the employer, insurance company, or own-risk employer do does not provide case management, case management may be granted by the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, on the request of any party, or when the Court or Commission determines that case management is appropriate.  The Court or Commission shall appoint a case manager from a list of qualified case managers developed, maintained and periodically reviewed by the Court Commission.  The period of qualification shall be two (2) years.  Case managers may be qualified for successive two-year periods.  Case managers serving as Court qualified case managers on the effective date of this act October 31, 2013, shall serve the remainder of their respective two-year qualification periods and may reapply for successive qualification periods.  The reasonable and customary charges of a medical case manager appointed by the Court or Commission shall be borne by the employer or insurance carrier.  The Court or Commission may order one change of case manager upon application of any party.
SECTION 33.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 331.1 of Title 85, unless there is created a duplication in numbering, reads as follows:
For any compensable injury or illness occurring on or after November 1, 2013, the determination of disability shall be the responsibility of the Chief Medical Officer of the Workers’ Compensation Commission.  Any claim submitted by an employee for compensation for permanent disability shall be supported by competent medical testimony which shall be supported by objective medical evidence, as defined in Section 308 of Title 85 of the Oklahoma Statutes, and which shall include an evaluation by the treating physician or a Medical Impairment Rating Registry (MIR) physician as set out in Section 34 of this act if there is no evaluation by the treating physician or if there is a dispute as to the impairment rating as set out in Section 34 of this act.  The evaluation shall state the physician’s opinion of the employee’s percentage of permanent impairment and whether the impairment is job-related and caused by the accidental injury or occupational disease.  A copy of any written evaluation shall be sent to both parties within seven (7) days of issuance.  Medical opinions addressing compensability and permanent impairment shall be stated within a reasonable degree of medical certainty.  For purposes of this section, a physician shall have the same meaning as defined in Section 326 of Title 85 of the Oklahoma Statutes and shall include a person licensed by another state who would be qualified to be a licensed physician under the laws of this state. 
SECTION 34.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 331.2 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  This section shall apply to all workers’ compensation claims filed on or after November 1, 2013.
B.  As used in the Workers’ Compensation Code:
1.  “Chief Medical Officer” means the Chief Medical Officer appointed by the Workers’ Compensation Commission;
2.  “Code” means the Workers’ Compensation Code;
3.  “Commission” means the Workers’ Compensation Commission;
4.  “Dispute of degree of medical impairment” means either at least two different physicians have issued differing permanent medical impairment ratings in compliance with the act and the parties disagree as to those permanent impairment ratings, or a dispute may also exist if a physician has issued an opinion in compliance with the Code that no permanent medical impairment exists, yet that physician has issued permanent physical restrictions to the injured employee; 
5.  “Division” means the Chief Medical Officer’s Division of the Workers’ Compensation Commission;
6.  “Employee” shall have the same meaning as set forth in Section 308 of Title 85 of the Oklahoma Statutes;
7.  “Employer” shall have the same meaning as set forth in Section 308 of Title 85 of the Oklahoma Statutes;
8.  “Form” means the “Application for a Medical Impairment Rating”, required to be used to request an MIR Registry physician from the Commission;
9.  “Insurer” or “carrier” means an employer’s workers’ compensation insurance carrier and additionally shall include any entity claiming, operating, or attempting to operate as a self-insured employer, self-insured pool, or self-insured trust pursuant to the requirements of Oklahoma law; 
10.  “Medical Impairment Rating Registry” or “MIR Registry” means the registry or listing of physicians established by the Commission to perform independent medical impairment ratings when there is a dispute as to the degree of medical impairment, as defined above;
11.  “Party” means any person or entity which either could be liable for payment of workers’ compensation benefits or a person who has a potential right to receive workers’ compensation benefits.  “Party” shall include a legal representative of a party; 
12.  “Physician” shall have the same meaning as set forth in Section 326 of Title 85 of the Oklahoma Statutes; and
13.  “Program Coordinator” means the chief administrative officer of the MIR Registry Program, appointed by the Chief Medical Officer.
C.  1.  The purpose of the Medical Impairment Rating Registry Program is to establish a resource to resolve disputes regarding the degree of permanent medical impairment ratings for injuries or occupational disease to which workers’ compensation statutes apply. In order to ensure high-quality independent medical impairment evaluations, the Commission shall establish the Medical Impairment Rating Registry Program.  MIR Registry physicians shall provide evaluations in a manner consistent with the standard of care in their community, as well as issue opinions based upon the applicable edition of the AMA "Guides to the Evaluation of Permanent Impairment" or other appropriate method pursuant to Title 85 of the Oklahoma Statutes.
2.  The MIR Registry is available to any party with a dispute of the degree of medical impairment rating as defined herein for injuries or any occupational disease which occurred on or after November 1, 2013.  The only aspect considered by a MIR Registry physician shall be the degree of permanent medical impairment.
D.  A physician seeking appointment to the MIR Registry shall make application and must satisfy the following qualifications:
1.  Possess a license to practice medicine or osteopathy in Oklahoma which is current, active, and unrestricted;
2.  Be board-certified in their respective specialty by a board recognized by the American Board of Medical Specialties, the American Osteopathic Association or another organization acceptable to the Chief Medical Officer;
3.  Have successfully completed a training course, approved by the Chief Medical Officer, dedicated to the proper application of the applicable edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment" (hereafter the “AMA Guides”) in impairment evaluation and furnish satisfactory evidence thereof; and
4.  Furnish satisfactory proof of carrying the minimum medical malpractice insurance coverage.
E.  1.  Appointment to the MIR Registry shall be for a two-year term, except as otherwise set forth herein.  Physicians may seek renewal appointments by the same process as the initial application described herein.  The Commission reserves the right to charge physicians a nonrefundable application fee upon appointment, renewal, or reinstatement to the MIR Registry.  The Chief Medical Officer shall have the sole and exclusive authority to approve or reject applications for inclusion on the MIR Registry.
2.  Physicians seeking appointment to the MIR Registry shall complete an “Application for Appointment to the MIR Registry”, certify to and, upon approval of the application, comply with the following conditions:
a.	conduct all MIR evaluations based on the guidelines in the applicable edition of the AMA Guides and submit the original “MIR Report” with all attachments to the Program Coordinator.  In cases not covered by the applicable AMA Guides, any impairment rating allowed under the act shall be appropriate,
b.	decline requests to conduct an evaluation only on the basis of good cause shown.  Consideration shall be given to a physician’s schedule and other previously arranged or emergency obligations,
c.	comply with the MIR Registry’s rules,
d.	while on the MIR Registry, agree to maintain an active and unrestricted license to practice medicine or osteopathy in Oklahoma and to immediately notify the Program Coordinator of any change in the status of the license, including any restrictions placed upon the license,
e.	while on the MIR Registry, agree to maintain all board certifications listed on the application and to immediately notify the Program Coordinator of any change in their status,
f.	conduct MIR evaluations in an objective and impartial manner, and:
(1)	conduct these evaluations only in a professional medical office suitable for medical or psychiatric evaluations where the primary use of the site is for medical service, 
(2)	comply with all local, state and federal laws, regulations, and other requirements with regard to business operations, including specific requirements for the provision of medical services, and 
(3)	not conduct a physical examination on a claimant of the opposite sex without a witness of the same sex as the claimant present,
g.	not refer any MIR Registry claimant to another specific physician for any treatment or testing nor suggest referral or treatment.  However, if new diagnoses are discovered, the physician has a medical obligation to inform the requesting party and the claimant about the condition and recommend further medical assessment,
h.	not become the treating physician for the claimant regarding the work-related injury,
i.	not evaluate a MIR Registry claimant if a conflict of interest exists,
j.	not substitute, or allow to be substituted, anyone else, including any other physician, physician assistant, nurse practitioner, physical therapist or staff member, as the physician to conduct the MIR Registry evaluation,
k.	no later than fifteen (15) calendar days after a request by the Program Coordinator to refund to the paying party part or all of any fee paid by that party for a MIR Registry evaluation, as may be required by the Chief Medical Officer, and
l.	for each MIR Registry case assigned, address only the issue of permanent impairment rating. 
3.  Physicians denied appointment to the MIR Registry on their initial application may seek reconsideration of their application by submitting a request for reconsideration stating the grounds for such reconsideration to the Program Coordinator within fifteen (15) calendar days of the issuance of the Notice of Denial of their application.  The Chief Medical Officer may affirm or reverse the initial determination upon reconsideration of the initial decision.  The Chief Medical Officer shall issue a Notice of Final Determination which shall be the final decision. 
F.  1.  When a dispute of the degree of medical impairment exists as defined in this section, any party may request a listing of physicians from the Commission’s MIR Registry by completing an “Application for a Medical Impairment Rating” (hereinafter “Form”).  The completed Form shall be returned to the Program Coordinator via electronic mail, facsimile or U.S. Mail.  
2.  The Chief Medical Officer shall require the request for a MIR Registry physician to designate:
a.	all body parts or medical conditions to be evaluated,
b.	the names of all physicians that have previously evaluated, treated or are currently evaluating or treating the claimant for the work-related injury, and
c.	the state file number assigned to the claims.
3.  Within five (5) business days of receipt of the completed Form from the requesting party, the Program Coordinator shall issue a listing of all qualified physicians in the appropriate geographic area, which shall mean within a one-hundred-mile radius of the employee’s residence, from the MIR Registry to all parties listed on the Form so the parties may negotiate an agreement on the selection of a physician as the MIR Registry physician.  If the parties agree, they shall notify the Program Coordinator of the agreement so the Program Coordinator may schedule the appointment with the selected physician for the MIR examination.  Parties agreeing to the selection of the MIR Registry physician under this paragraph must abide by all requirements set forth herein.  A written opinion as to the permanent impairment rating given by the MIR Registry physician selected pursuant to this section shall be presumed to be the accurate impairment rating. 
4.  If the parties cannot agree upon selection of a MIR Registry physician from the Program Coordinator listing of MIR Registry physicians provided within fifteen (15) calendar days of the Program Coordinator’s issuing the requested listing, it shall be the responsibility of the employer to provide a written request to the Program Coordinator to provide a three-physician list by submitting such request on the Form.  A written opinion as to the permanent impairment rating given by the MIR Registry physician selected pursuant to this section shall be presumed to be the accurate impairment rating.
5.  The submitting party shall certify that all parties, as well as the Program Coordinator, have been sent the completed Form at the same time.  The Form shall not be processed until required information has been provided.
6.   a.	Within five (5) business days of receipt of the completed “Application for a Medical Impairment Rating”, the Division shall produce a list of three qualified physicians drawn from the Chief Medical Officer’s MIR Registry, from which one physician shall be designated to perform the evaluation.  The three-physician listing created shall be comprised of physicians qualified, based on the information provided by the physician and on their accreditation to perform evaluations of the body part or parts or medical condition or conditions designated on the application for an evaluation.
b.	All physician selections shall be derived from the pool of qualified physicians.
7.   a.	Within three (3) business days of the issuance of the three-physician listing, the employer shall strike one name and inform the Program Coordinator and all parties of the remaining physicians.  Within three (3) business days of the date of receipt of that name from the employer, the claimant shall strike one of the two remaining names and inform the Program Coordinator and other parties of the name of the remaining physician, who will perform the evaluation.
b.	If one party fails to timely strike a name from the listing, the other party shall notify the Program Coordinator and at the same time provide to the Program Coordinator the name that it wishes to strike.  In that situation, the Chief Medical Officer may randomly select one physician from the remaining two, and that physician shall perform the evaluation.  The Program Coordinator shall inform the parties of the name of the selected physician in writing.
c.	If a selected physician is unable to perform the evaluation, the Program Coordinator shall provide one replacement name to the original listing using the same criteria and process set forth above, and present that revised listing to the parties and each shall again strike one name according to the above procedures.  Additionally, if a physician is removed from the three-physician listing for any reason other than having been struck by one of the parties, the Program Coordinator shall issue one replacement physician name.
8.  Within three (3) business days of providing or receiving notice of the MIR physician selection, the Program Coordinator shall contact the MIR Registry physician to schedule the evaluation, and shall immediately notify all parties of the date and time of the evaluation.  Only after this notification the employer shall contact the MIR Registry physician and only to arrange for payment and for medical records submission required by the rules. 
9.   a.	All parties shall concurrently provide to the MIR registry physician and all other parties a complete copy of all pertinent medical records pertaining to the subject injury, postmarked or hand-delivered at least ten (10) calendar days prior to the evaluation.  If necessary, the claimant shall promptly sign a “MIR Waiver and Consent” permitting the release of information relevant to the subject injury to the MIR physician.
b.	In cases involving untimely medical record submission by a party, the Program Coordinator may elect to reschedule the evaluation to allow the physician adequate time for record review.  Otherwise, the physician shall perform the evaluation and shall produce a “MIR Report”.
c.	The medical records shall include a dated cover sheet listing the claimant’s name, MIR Registry physician’s name, MIR Registry case number, date and time of the appointment, and claim number, if appropriate.  The medical records shall be in chronological order, by provider, and tabbed by year.  
d.	Medical bills, adjustor notes, surveillance tapes, denials, vocational rehabilitation reports, case manager records or commentaries to the MIR Registry physician shall not be submitted.
10.  Any forms the MIR physician requests to be completed shall be completed by the claimant.  If the claimant needs assistance in completing these forms for any reason, the claimant shall notify the MIR Registry physician prior to the evaluation so that assistance can be provided by the MIR Registry physician’s staff.  The case manager shall not meet with the MIR Registry physician.
11.  The claimant shall notify the Program Coordinator of the necessity for a language translator at the time of the notification of the chosen physician’s name.  The Program Coordinator shall arrange for such services and the employer shall be responsible for compensating such language translator.  The language translator shall be impartial and independent, and have no professional or personal affiliation with any party to the claim or to the MIR Registry physician.
12.  When a claimant is required to travel outside a radius of fifteen (15) miles from the claimant’s residence or workplace, then such claimant shall be reimbursed by the employer for reasonable travel expenses as allowed in Title 85 of the Oklahoma Statutes. 
G.  1.  A physician performing evaluations under this section shall be prepaid by the employer a total evaluation fee for each evaluation performed, under a MIR Registry physician estimated time-table as outlined below:
a.	One Thousand Dollars ($1,000.00) for completed reports received and accepted by the Program Coordinator within thirty (30) calendar days of the scheduling of the appointment,
b. 	Eight Hundred Fifty Dollars ($850.00) for completed reports received and accepted by the Program Coordinator between thirty-one (31) and forty-five (45) calendar days of the scheduling of the appointment,
c.	Five Hundred Dollars ($500.00) for completed reports received and accepted between forty-six (46) and sixty (60) days of the scheduling of the appointment, and
d.	no fee paid for completed reports received and accepted by the Program Coordinator later than sixty (60) calendar days of the scheduling of the appointment.
2.  The evaluation fee includes normal record review, the evaluation, and production of a standard “MIR Report”.  All nonroutine tests for an impairment rating essential under the applicable edition of the AMA Guides to the Evaluation of Permanent Impairment shall be performed prior to the evaluation.  Routine tests necessary for a complete evaluation shall be performed by the MIR Registry physician as part of the evaluation at no additional cost.
3.  Failure by an employer or insurer to prepay the evaluation fee shall allow the physician to charge the employer an additional one-hundred-dollar late fee for the evaluation.  If the evaluation fee or late fee remains unpaid fifteen (15) calendar days following the date of the evaluation, an additional two-hundred-fifty-dollar penalty is authorized.  If any portion of a fee or penalty remains unpaid after an additional thirty-calendar-day period, an additional five-hundred-dollar penalty is authorized, and reauthorized for each additional thirty–calendar-day period, or portion thereof, that it remains unpaid until all fees or penalties or both fees and penalties are fully paid.  Failure by a MIR Registry physician to timely refund any unearned evaluation fee shall allow the employer or insurer to recover in addition to the unearned fee a one-hundred-dollar late fee from that MIR Registry physician.  If the unearned fee or late fee remains unpaid fifteen (15) calendar days following the date of the evaluation, an additional two-hundred-fifty-dollar penalty against the MIR Registry physician is authorized.  If any portion of the unearned fee or penalty remains unpaid after an additional thirty-calendar-day period, an additional five-hundred-dollar penalty is authorized, and reauthorized for each additional thirty-calendar-day period, or portion thereof, that it remains unpaid until all fees or penalties or both fees and penalties are fully paid. 
4.  To be considered timely, notice of a party’s desire to cancel an evaluation shall be given to the Program Coordinator at least three (3) business days prior to the date of the evaluation.  An evaluation may be canceled or rescheduled only after obtaining the consent of the Chief Medical Officer.  The Chief Medical Officer shall decide whether an evaluation may be rescheduled within ten (10) calendar days of a request to cancel.  
a.	If the request to cancel is not timely, the MIR registry physician shall be entitled to collect or retain a three-hundred-dollar cancellation penalty fee.  If the evaluation is rescheduled, the MIR Registry physician is entitled to the entire evaluation fee (for the rescheduled evaluation) in addition to this fee. 
b.	If the claimant fails to appear for the evaluation with good cause, the Program Coordinator shall reschedule the evaluation. 
c.	If the claimant fails to appear for the evaluation without good cause as determined by the Program Coordinator, this may be deemed a refusal to comply with a reasonable request for medical examination and the injured employee’s right to compensation may be suspended, by order of the Chief Medical Officer, and no compensation shall be due and payable while the injured employee continues such refusal. 
H.  In instances of more than one impairment rating being disputed in more than one medical specialty, and there is an insufficient number of physicians on the Registry who are qualified to perform all aspects of the evaluation, separate evaluation may be required, each being separate application and physician-selection processes and fees. 
I.  1.  During the MIR physician selection process, registry physicians shall not render opinions as to the impairment relating to the subject injury to a party to the case in cases in which the physicians' name appears on the three-physician listing.  MIR Registry physicians who have rendered an opinion as to the impairment relating to the subject injury to a party shall disclose the nature and extent of those discussions to the Program Coordinator immediately upon their selection as the MIR Registry physician.  The Chief Medical Officer, in the Chief Medical Officer’s sole authority, shall determine whether or not a conflict of interest exists.  Failure to disclose a potential conflict of interest may result in a physician’s removal from the MIR Registry.  While removed from the Registry, physicians shall not be eligible to perform MIR evaluations. 
2.  If selected as the MIR physician, there shall be no communication with the parties or their representatives prior to the evaluation, unless allowed by this section or approved by the Chief Medical Officer.  Any approved communication, other than arranging for payment and the submission of medical records and the evaluation itself, shall be in writing with copies to all parties and the Program Coordinator.  Failure by a Registry physician to disclose such communications shall subject that physician to penalties under the rules. 
3.  A party seeking the presence of the MIR physician as a witness at a proceeding for any purpose, by subpoena, deposition or otherwise, shall be responsible for payment for those services to the MIR physician.  Deposition fees shall be in accordance with applicable state rules and laws. 
J.  1.  The MIR Registry physician's responsibilities prior to the evaluation are to:
a.	review all materials provided by the parties subject to this section, and
b.	review the purpose of the evaluation and the impairment questions to be answered in the evaluation report.  
2.  The MIR Registry physician’s responsibilities following the evaluation are to:
a.	consider all medical evidence obtained in the evaluation and provided by the parties subject to this section,
b.	complete a "MIR Report”,
c.	notify the Program Coordinator when the report has been completed, and
d.	send the complete report with all required attachments to the Program Coordinator only, via electronic mail or overnight delivery.  The Program Coordinator shall acknowledge, to the physician, receipt of the report. 
3.  No physician-patient relationship is created between the MIR Registry physician and the claimant through the MIR Registry evaluation.  The sole purpose of the evaluation is to establish an impairment rating and not to recommend future treatment or to provide a diagnosis or other medical advice.  However, if new diagnoses are discovered, the physician has a medical obligation to inform the requesting party and the claimant about the condition and recommend further medical assessment. 
K.  1.  After conducting the evaluation, the MIR physician shall produce the “MIR Report”.  The format, approved by the Chief Medical Officer, shall be used in all cases to detail the evaluation’s results.  The MIR Registry physician shall first review the determination by the attending physician that the claimant has reached Maximum Medical Improvement (MMI).
2.  If, after reviewing the records, taking a history from the claimant and performing the evaluation, the MIR Registry physician concurs with the attending doctor’s determination of MMI, the report shall, at a minimum, contain the following:
a.	a brief description and overview of the claimant’s medical history as it relates to the subject injury, including reviewing and recapping all previous treatments, 
b.	a statement of concurrence with the attending doctor’s determination of MMI,
c.	pertinent details of the physical evaluation performed (both positive and negative findings),
d.	an impairment rating consistent with the findings and utilizing a standard method as outlined in the applicable AMA Guides, calculated as a total to the whole person if appropriate.  In cases not covered by the AMA Guides, an impairment rating by any appropriate method used and accepted by the medical community is allowed.  However, a statement that the AMA Guides fails to cover the case as well as a statement of the system on which the rating was based shall be included,
e.	the rationale for the rating based on reasonable medical certainty, supported by specific references to the clinical findings, especially objective findings and supporting documentation including the specific rating system, section, tables, figures, and AMA Guides page numbers, when appropriate, to clearly show how the rating was derived, and
f.	a true or electronic signature and date by the MIR physician performing the evaluation certifying to the following:
“It is my opinion, both within and to a reasonable degree of medical certainty that, based upon all information made available to me at the time of the MIR impairment evaluation and by utilizing the relevant AMA Guides or other appropriate method as noted above, the claimant has the permanent impairment so described in this report.  I certify that the opinion furnished is my own, that this document accurately reflects my opinion, and that I am aware that my signature attests to its truthfulness.  I further certify that my statement of qualifications to serve on the MIR Registry is both current and completely accurate.”
3.  If, after reviewing the records, taking a history from the claimant and performing the evaluation, the MIR Registry physician does not concur with the attending physician’s determination of MMI, a report shall be completed similar to the one outlined above which documents and certifies to, in sufficient detail, the rationale for disagreeing.  The MIR Registry physician shall be entitled to collect or retain the appropriate MIR fee regardless of the opinion. 
4.  Services rendered by a MIR Registry physician shall conclude upon the Chief Medical Officer’s acceptance of the final “MIR Report”.  A MIR report is final and accepted for the purpose of this section when it includes the requested determination regarding final medical impairment rating and any necessary worksheets.  Once the report has been accepted, the Program Coordinator shall distribute copies of the report to the parties. 
L.  All MIR Reports are subject to review for appropriateness and accuracy by an individual or organization designated by the Chief Medical Officer at any time.  Failure to properly apply the AMA Guides in determining am impairment rating, as determined by the Chief Medical Officer, may result in penalties up to and including removal from the MIR Registry.
M.  1.  The Chief Medical Officer may remove a physician from the MIR Registry permanently or temporarily.  In doing so, the Chief Medical Officer shall first notify the physician in writing that the physician is at risk of being removed from the MIR Registry.  The Chief Medical Officer may remove a physician from the MIR Registry permanently or temporarily based upon any of the following grounds:
a.	misrepresentation on the “Application for Appointment to the MIR Registry” as determined by the Chief Medical Officer,
b.	failure to timely report a conflict of interest in a case assignment, as determined by the Chief Medical Officer,
c.	refusal or substantial failure to comply with the provisions of this section, including, but not limited to, failure to determine impairment ratings correctly using the AMA Guides, as determined by the Chief Medical Officer,
d.	failure to maintain the requirements of this section, as determined by the Chief Medical Officer, and
e.	any other reason for the good of the Registry as determined solely and exclusively by the Chief Medical Officer.
2.  Written complaints regarding any MIR Registry physician shall be submitted to the Program Coordinator.  Upon receipt of a complaint regarding a MIR Registry physician, the Chief Medical Officer shall send written notice of the complaint to such physician, stating the grounds, and notifying the physician that the physician is at risk of being removed from the MIR Registry.
a.	The physician shall have thirty (30) calendar days from the date of the Notice of Complaint in which to respond in writing to the complaint or complaints, and may submit any responsive supporting documentation to the Program Coordinator for consideration.  Failure of the physician to submit a timely response to the Notice of Complaint may result in removal of the physician from the MIR Registry.
b.	The Chief Medical Officer shall consider the complaint or complaints and any response from the physician in reaching a decision as to whether the physician shall be removed from the MIR Registry, and if removed, whether the removal shall be permanent or temporary. 
c.	Upon reaching a determination on the complaint or complaints, the Chief Medical Officer shall issue a written Notice of Determination and set forth the basis for the decision in such Notice.  The determination set forth shall become final fifteen (15) calendar days after issuance of the Notice of Determination, unless a timely request for reconsideration is received. 
d.	A MIR Registry physician may seek reconsideration of an adverse decision from the Chief Medical Officer by submitting a request for reconsideration stating the grounds for such reconsideration to the Commission within fifteen (15) calendar days of the issuance of the Notice of Determination.  The Commission may affirm, modify or reverse the initial determination upon reconsideration of the initial decision.  The Commission shall issue a Notice of Determination upon Reconsideration which shall be the final decision.
3.  A physician who has been removed from the MIR Registry by the Chief Medical Officer may apply for reinstatement six (6) months after the date of removal by submitting a written request to the Program Coordinator.
N.  Notwithstanding any other provision in this section to the contrary, and in addition to any other penalty provided for in this section, failure by any party to comply with this section in a manner for which no penalty has specifically been set forth herein may subject that party to civil penalties of One Hundred Dollars ($100.00) per violation, as determined by the Chief Medical Officer.  Any party so penalized may request a contested case hearing by submitting a request for such hearing within fifteen (15) days of issuance of the notice of violation and assessment of civil penalties hereunder to the Commission.
O.  All time limits referenced in this section may be extended by the Chief Medical Officer in the Chief Medical Officer’s sole and exclusive discretion.
P.  Injured workers, employers, insurers and carriers shall cooperate in good faith with all reasonable requests made by a MIR Registry physician.
Q.  Parties are prohibited from seeking a second MIR Registry impairment rating for the same injury if an impairment rating was issued after the first MIR Registry evaluation.
R.  Once the MIR physician’s report has been filed with the Program Coordinator, the Chief Medical Officer shall issue a final determination of disability within ten (10) business days and notify all parties.  The Chief Medical Officer’s determination may be appealed to the full Commission but may only be amended or revised based on the reports filed by the physicians involved in the case, the MIR physician or the Chief Medical Officer.
SECTION 35.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 331.3 of Title 85, unless there is created a duplication in numbering, reads as follows:
The Chief Medical Officer shall be hired by the Workers' Compensation Commission and shall be subject to Senate confirmation.  Every four (4) years, the Commission shall review the performance of the Chief Medical Officer and shall recommend to the State Senate for confirmation of reappointment for another four-year period.  The Chief Medical Officer shall receive the same compensation as a Commissioner.  In addition to determining disability ratings, the Chief Medical Officer shall handle all medical disputes outside of Certified Workplace Medical Plan (hereafter CWMP) programs, oversee the reimbursement fee schedule for all medical providers outside of CWMPs, and determine the appropriateness of requests for continuing medical treatment.  The Chief Medical Officer shall determine the nature and extent of any such “medical maintenance” programs and issue the appropriate order or orders to ensure the need for such program.  All such administrative orders are subject to appeal to the full Commission as set out in the Workers’ Compensation Code.  
SECTION 36.     AMENDATORY     85 O.S. 2011, Section 332, is amended to read as follows:
Section 332.  A.  In cases of temporary total disability, the injured employee shall be paid seventy percent (70%) of his or her average weekly wages, but not in excess of the state’s average weekly wage, during continuance thereof; provided, there shall be no payment for the first seven (7) days of the initial period of temporary total disability unless the Workers’ Compensation Commission for claims for injuries that occur on or after November 1, 2013, or the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, declares the employee to be temporarily totally disabled for more than twenty-one (21) days.  In that event, compensation shall be due from the first day of the period of temporary total disability.  Total payments of compensation for temporary total disability shall not exceed one hundred fifty-six (156) weeks, except if the Commission or Court makes a finding of a consequential injury.  In that event, the Commission or Court may order an additional period of temporary total disability not to exceed fifty-two (52) weeks.  Any party may request overpayment or underpayment of temporary total disability compensation.
B.  When the injured employee is released from active medical treatment by the treating physician for all body parts found by the Commission or Court 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 there is no objection within ten (10) days, temporary total disability compensation shall be terminated.  If, however, an objection to the termination is filed by the employee within ten (10) days, the Commission or Court shall set the matter within twenty (20) days for a determination if temporary total disability compensation shall continue or be terminated.  The Commission or Court shall terminate temporary total disability 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 Commission or Court 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.  The employer shall bear the cost of the independent medical examination.
C.  There shall be a rebuttable presumption in favor of the treating physician’s opinions on the issue of temporary disability and need for medical treatment.  This presumption shall continue unless rebutted by clear and convincing evidence to the contrary of a qualified independent medical examiner.
D.  The state and all its institutions of higher education, departments, instrumentalities, institutions and public trusts of which they are beneficiaries shall first provide temporary total disability benefits to employees injured on the job under their policy of workers’ compensation insurance.  At the option of the employee, temporary total disability benefits shall then be supplemented by any sick or annual leave available to the injured employee to the extent that the injured employee shall receive full wages during the employee’s temporary absence from work; provided, the provisions of this subsection shall not preclude an employee from receiving any benefits to which the employee is entitled under the State Employees Disability Program Act, Section 1331 et seq. of Title 74 of the Oklahoma Statutes.
E.  If the employer has actual notice of the injury and the injury is not disputed and weekly temporary total disability benefit payments are not commenced within ten (10) days or if any subsequent installment of temporary total disability benefits is not made within ten (10) days after it becomes due, the insurer of the employer shall pay to the employee a penalty of fifteen percent (15%) of the unpaid or delayed weekly benefits.
F.  The physician who renders treatment to the employee shall notify the employee and employer or the employer’s insurer in writing within seven (7) days after the employee has reached maximum medical improvement and is released from active medical care.
G.  If the employee is capable of returning to modified light duty work, the physician shall within seven (7) days notify the employee and the employer or the employer’s insurer thereof in writing.  In the event that the treating physician releases a claimant for light-duty work and provides written restrictions from normal work duties, and the employer makes a good-faith offer in writing to provide a light-duty position at the same rate of pay that the claimant was receiving at the time of the injury, and the claimant refuses to accept the light-duty assignment, the claimant is not entitled to temporary total disability; provided, before compensation may be denied, the employee shall be served with a notice setting forth the consequences of the refusal of employment and that temporary benefits will be discontinued fifteen (15) days after the date of the notice.  The employee, upon receipt of the notice, may seek a hearing before the Commission or Court, as applicable.  The Commission or Court shall grant an expedited hearing within five (5) days of any application by the employee.  At the hearing, the Commission or Court may enter an order allowing the discontinuation of the benefits, denying the discontinuance of the benefits or temporarily denying the discontinuance of the benefits pending further hearing.  An order denying or temporarily denying the discontinuation of temporary benefits shall be based on a finding by the Commission or Court that probable cause exists to believe the work does not meet the conditions of the treating physician’s restrictions or that the restrictions are unreasonable.
H.  Any person receiving temporary disability benefits from an employer or the employer’s insurance carrier shall within seven (7) days report in writing to the employer or insurance carrier any change in a material fact or the amount of income he or she is receiving or any change in his or her employment status, occurring during the period of receipt of the benefits.
I.  An employee convicted of a misdemeanor or felony in this state or any other jurisdiction shall not be entitled to temporary total disability benefits during any period of incarceration.  Upon confirmation of the employee’s incarceration, temporary total disability may be terminated by the employer or insurance carrier without an order of the Commission or Court.  The provisions of this subsection shall not apply to any benefits awarded to an inmate for compensable injuries sustained by the inmate while in the employ of a private for-profit employer or while employed in private prison industries, involving a for-profit employer, which deal in interstate commerce or which sell products or services to the federal government.
J.  1.  In case of temporary partial disability for injuries occurring before November 1, 2013, an injured employee shall receive seventy percent (70%) of the difference between the employee’s average weekly wages and the employee’s wage-earning capacity thereafter in the same employment or otherwise, if less than before the injury, during continuance of the partial disability.  Total payments of temporary partial disability may not exceed one hundred fifty-six (156) weeks.  In no event shall the total payment of wages and temporary partial disability exceed eighty percent (80%) of the average weekly wage of the injured employee at the time of the accident; and
2.  With respect to injuries occurring on or after November 1, 2013, in case of temporary partial disability, an injured employee shall receive sixty-six and two-thirds percent (66 2/3%) of the difference between the employee’s average weekly wages and the employee’s wage-earning capacity thereafter in the same employment or otherwise, if less than before the injury, during continuance of such partial disability, but not to exceed one hundred four (104) weeks.
K.  In case of a nonsurgical soft tissue injury, in which the employer has provided medical care within seven (7) days after receipt of oral or written notice of the injury, temporary total disability compensation shall not exceed eight (8) weeks, regardless of the number of parts of the body to which there is a nonsurgical soft tissue injury.  A claimant who has been recommended by a treating physician for one or more injections surgery for a soft tissue injury, or who has had surgery for a soft tissue injury as a result of a recommendation by a treating physician, may petition the Commission or Court, as applicable, for one extension of temporary total disability compensation and the Court may order an extension, not to exceed eight (8) additional weeks.  A claimant who has been recommended by a treating physician for surgery for a soft tissue injury may petition the Court for one extension of temporary total disability compensation and the Court may order an extension, not to exceed sixteen (16) additional weeks, if the treating physician indicates that an extension is appropriate or as agreed to by all parties.  In the event the surgery is not recommended, or is recommended but not performed within ninety (90) days of the approval of the surgery by the employer or employer’s insurance carrier or an order of the Court authorizing the surgery after the recommendation, the benefits for the extension period shall be terminated by the Court, unless the Court finds the delay was beyond the control of the claimant.  In the event surgery is performed, the period of temporary total disability is subject to the limitations established by subsection A of this section.  This subsection shall apply to all cases coming before the Workers’ Compensation Court or the Court of Existing Claims after the effective date of this act August 26, 2011, regardless of the date of injury; provided, provisions regarding jurisdiction of the Workers’ Compensation Commission shall apply to cases involving injuries occurring on or after November 1, 2013.
L.  For purposes of this section, “soft tissue injury” means damage to one or more of the tissues that surround bones and joints.  Soft tissue injury includes, but is not limited to: sprains, strains, contusions, tendonitis, and muscle tears.  Cumulative trauma is to be considered a soft tissue injury.  Soft tissue injury does not include any of the following:
1.  Injury to or disease of the spine, spinal discs, spinal nerves or spinal cord, where corrective surgery is performed;
2.  Brain or closed-head injury as evidenced by:
a.	sensory or motor disturbances,
b.	communication disturbances,
c.	complex integrated disturbances of cerebral function,
d.	episodic neurological disorders, or
e.	other brain and closed-head injury conditions at least as severe in nature as any condition provided in subparagraphs a through d of this paragraph; or
3.  Any joint replacement.
M.  In all cases of nonsurgical soft tissue injury, the employee shall only be entitled to temporary total disability compensation as set out in subsection K of this section, unless there is objective medical evidence of a permanent anatomical abnormality.  In determining the existence of such an abnormality, the Court may consider if there is credible medical evidence that the ability of the employee to earn wages at the same level as before the injury has been impaired.  This subsection shall apply to all cases coming before the Workers’ Compensation Court or the Court of Existing Claims after the effective date of this act August 26, 2011, regardless of the date of injury; provided, provisions regarding jurisdiction of the Workers’ Compensation Commission shall apply to cases involving injuries occurring on or after November 1, 2013.
N.  Notwithstanding any other section of the Workers’ Compensation Code, temporary disability compensation shall be payable without an award by the Court of Existing Claims or the Commission.  The first payment of temporary disability compensation shall become due on the tenth day after the employer has received notice of injury.
O.  Payments for temporary total disability or temporary partial disability shall not constitute admission by the employer or insurance carrier as to liability for benefits or any issue.
P.  No employee may receive temporary total disability benefits covering the same period of time for which unemployment benefits as provided by the Oklahoma Employment Security Commission or the unemployment insurance law of any other state are received by the employee or for which short term disability benefits are received by the employee by reason of a policy of insurance provided by the employer.
SECTION 37.     AMENDATORY     85 O.S. 2011, Section 333, is amended to read as follows:
Section 333.  A.  The determination of permanent impairment or disability shall be the responsibility of the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013.  Any claim by an employee for compensation for permanent partial impairment must be supported by competent medical testimony of the treating physician who is a medical doctor or a doctor of osteopathy or a qualified independent medical examiner which shall be supported by objective medical findings, as defined in Section 308 of this act title, and which shall include an evaluation by a physician stating his or her opinion of the employee’s percentage of permanent partial impairment and whether or not the impairment is job-related and caused by the accidental injury or occupational disease.  A physician’s opinion of the nature and extent of permanent partial impairment to parts of the body other than scheduled members must be based solely on criteria established by the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”, Fifth Edition, or any subsequent edition approved by the Administrator after public hearing and review by the Physician Advisory Committee, hereinafter referred to as “Guides”.  A copy of any written evaluation shall be sent to both parties within seven (7) days of issuance.  Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.  For purposes of this section, “physician” has the same meaning as defined in Section 26 326 of this act title and includes a person licensed by another state who would be qualified to be a licensed physician under the laws of this state.  Any party may submit the report of an evaluating physician.
B.  Permanent partial impairment shall not be allowed to a part of the body for which no medical treatment has been received.  A determination of permanent impairment or disability made by the Court or Commission 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.
C.  The Physician Advisory Committee may recommend the adoption of a method or system to evaluate permanent impairment that shall deviate from, be used in place of, or in combination with the Guides.  Such recommendation shall be made to the Administrator of the Workers’ Compensation Court Commission who may adopt the recommendation in part or in whole.  The adopted method or system shall be submitted by the Administrator Commission to the Governor, the Speaker of the House of Representatives and the President Pro Tempore of the Senate within the first ten (10) legislative days of a regular session of the Legislature.  Such method or system so submitted shall be subject to disapproval by joint or concurrent resolution of the Legislature during the legislative session in which submitted.  If disapproved, the existing method of determining permanent partial impairment shall continue in effect.  If the Legislature takes no action on the method or system submitted by the Administrator Commission, the method or system shall become operative ten (10) days following the adjournment of the Legislature.
D.  The examining physician shall not deviate from the Guides or any alternative thereto except as may be specifically provided for in the Guides or modifications to the Guides adopted pursuant to subsection C of this section.
E.  In cases of permanent partial impairment, the compensation shall be seventy percent (70%) of the employee’s average weekly wages, if the injury occurred prior to November 1, 2013, and shall be sixty-six and two-thirds percent (66 2/3%) of the employee’s average weekly wages, not to exceed Three Hundred Forty-two Dollars ($342.00) per week, if the injury occurred on or after November 1, 2013, and shall be paid to the employee for the period prescribed by the following schedule:
Thumb: For the loss of thumb, sixty-six (66) weeks.
First Finger: For the loss of the first finger, commonly called the index finger, thirty-nine (39) weeks.
Second Finger: For the loss of a second finger, thirty-three (33) weeks.
Third Finger: For the loss of a third finger, twenty-two (22) weeks.
Fourth Finger: For the loss of a fourth finger, commonly called the little finger, seventeen (17) weeks.
Phalange of Thumb or Finger: The loss of the first phalange of the thumb or finger shall be considered equal to the loss of one-half (1/2) of such thumb or finger, and compensation shall be one-half (1/2) of the amount above specified; the loss of more than one phalange shall be considered as the loss of the entire thumb or finger; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.
Great Toe: For the loss of a great toe, thirty-three (33) weeks.
Other Toes: For the loss of one of the toes other than the great toe, eleven (11) weeks.
Phalange of Toe: The loss of the first phalange of any toe shall be considered to be equal to the loss of one-half (1/2) of such toe, and compensation shall be one-half (1/2) of the amount specified.  The loss of more than one phalange shall be considered as the loss of the entire toe.
Hand: For the loss of a hand, two hundred twenty (220) weeks.
Arm: For the loss of an arm, two hundred seventy-five (275) weeks.  Provided, that for the purposes of the arm as a scheduled member, the arm shall mean that part of the body that extends from the surgical neck of the humerus and includes the elbow joint.
Foot: For the loss of a foot, two hundred twenty (220) weeks.
Leg: For the loss of a leg, two hundred seventy-five (275) weeks.  Provided, that for the purposes of the leg as a scheduled member, the leg shall mean that part of the body that extends from the surgical neck of the femur and includes the knee joint.
Eye: For the loss of an eye, two hundred seventy-five (275) weeks.
Deafness: Deafness from industrial cause, including occupations which are hazardous to hearing, accident or sudden trauma, three hundred thirty (330) weeks, and total deafness of one ear from industrial cause, including occupations which are hazardous to hearing, accident or sudden trauma, one hundred ten (110) weeks.  Any examining physician shall only evaluate deafness or hearing impairment in accordance with the latest publication of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” in effect at the time of the injury or alternative method provided for under provisions of this act.
Loss of Use: Permanent loss of use of a thumb, finger, toe, arm, hand, foot, leg or eye shall be considered as the equivalent of the loss of such thumb, finger, toe, hand, arm, foot, leg or eye.
For the permanent partial loss of use of a member, loss of hearing or sight of an eye, seventy percent (70%) of the employee’s average weekly wage if the injury occurred prior to November 1, 2013, and sixty-six and two-thirds percent (66 2/3%) of the employee’s average weekly wage if the injury occurred on or after November 1, 2013, during that portion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye which the partial loss of use thereof bears to the total loss of use of such member, loss of hearing or sight of an eye.
Amputations: Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand.  Amputation between the knee and the ankle shall be considered as the loss of a foot.  Amputation at or above the elbow shall be considered as the loss of an arm.  Amputation at or above the knee shall be considered as the loss of a leg.
Hernia: In case of an injury resulting in the first or second hernia in the same area of the body, there shall be no award of permanent partial impairment.  Payment of benefits in such cases shall be limited to temporary total disability compensation for six (6) weeks, and all necessary medical costs including, but not limited to, the cost of surgery.  A claimant who has had surgery for a hernia may petition the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, for one extension of temporary total disability compensation and the Court or Commission may order such an extension, not to exceed six (6) additional weeks, if the treating physician indicates such an extension is appropriate, or as agreed to by all parties.  An award for temporary total disability or permanent partial impairment may be entered by the Court or Commission if an injury results in a third hernia, or more, in the same area of the body.
Other cases: In cases in which the Court or Commission finds an injury to a part of the body not specifically covered by the foregoing provisions of this section, the employee may be entitled to compensation for permanent partial impairment.  The compensation ordered paid shall be seventy percent (70%) for injuries that occurred before November 1, 2013, and sixty-six and two-thirds percent (66 2/3%) for claims for injuries that occurred on or after November 1, 2013, of the employee’s average weekly wage for the number of weeks which the partial disability of the employee bears to five hundred (500) weeks.  No permanent disability shall be awarded unless there is objective medical evidence of a permanent anatomical abnormality.  In determining the existence of such an abnormality, the Court or Commission may consider if there is credible medical evidence that the ability of the employee to earn wages at the same level as before the injury has been permanently impaired.
F.  The compensation payments under the provisions of the Workers’ Compensation Code for permanent partial impairment shall not:
1.  Exceed the sum of Three Hundred Twenty-three Dollars ($323.00) per week for injuries occurring on or after August 27, 2010, through August 26, 2015, or fifty percent (50%) of the state’s average weekly wage Three Hundred Forty-two Dollars ($342.00) per week beginning August 27, 2015;
2.  At any time be less than One Hundred Fifty Dollars ($150.00) per week for injuries occurring on or after August 27, 2010.
G.  Previous Disability: The fact that an employee has suffered previous disability or impairment 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 impairment, including a previous non-work-related injury or condition which produced permanent disability and the same is aggravated or accelerated by an accidental personal injury or occupational disease, compensation for permanent 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.  The sum of all permanent partial impairment awards, excluding awards against the Multiple Injury Trust Fund, shall not exceed five hundred twenty (520) weeks, except for awards for amputations and disability to the parts of the body for which surgery was received in the latest injury.
H.  No payments on any permanent partial impairment order shall begin until payments on any preexisting permanent partial impairment orders have been completed.
I.  Neither the Court of Existing Claims nor the Workers’ Compensation Commission shall consider the odd-lot doctrine for permanent disability claims.
SECTION 38.     AMENDATORY     85 O.S. 2011, Section 334, is amended to read as follows:
Section 334.  In case of an injury resulting in serious and permanent disfigurement to that portion of the body that is not normally covered by clothing and normally is open to public view, compensation shall be payable in an amount to be determined by the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, and the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, but not in excess of Fifty Thousand Dollars ($50,000.00) Five Thousand Dollars ($5,000.00).  An award for permanent disfigurement shall not be made for a part of the body for which permanent partial impairment is awarded.
SECTION 39.     AMENDATORY     85 O.S. 2011, Section 335, is amended to read as follows:
Section 335.  Where If a compensable injury results in the loss of one or more eyes, teeth, or members of the body, or the replacement of a joint, the employer shall furnish such prosthetic devices as may be necessary as determined by the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, and the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, in the treatment and rehabilitation of the injured worker for the lifetime of the worker.  Where If a worker sustains a compensable injury, arising out of and in the course of his or her employment, which results in damage to a prosthetic device with which such worker is equipped, the employer shall repair or replace such device.  Provided, that a subsequent injury to the part of the body for which a prosthetic device is provided shall terminate the obligation of the employer to provide such prosthetic device.
SECTION 40.     AMENDATORY     85 O.S. 2011, Section 336, is amended to read as follows:
Section 336.  A.  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 under provisions of Section 49 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 Workers’ Compensation Court awards both permanent partial impairment and permanent total disability benefits, the permanent total disability award shall not be due until the permanent partial impairment award is paid in full.  If otherwise qualified according to the provisions of this act the Workers’ Compensation Code, 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.
1.  In the absence of clear and convincing proof to the contrary, the loss of both hands, both legs, both arms, or both eyes shall constitute permanent total disability.
2.  Except in a statutory permanent total disability case, in no case shall a claimant receive both permanent total disability and any other form of disability, including permanent partial, temporary partial or temporary total disability at the same time or for the same period of disability.
3.  No more often than annually, the carrier, self-insured employer or the Death and Permanent Total Disability Trust Fund may require an injured worker receiving permanent total disability benefits, or the treating physician, or both injured worker and treating physician, to certify on forms provided by the Commission that the injured worker is permanently and totally disabled and not gainfully employed.  Failure of the employee to so certify within thirty (30) days after receipt of the notice shall permit the discontinuation of benefits without penalty.  If the Workers’ Compensation Commission finds that the claim of permanent total disability was made in bad faith by the employee, or if the employee made misleading representations regarding disability benefits, the Commission shall refer the case to the Workers’ Compensation Fraud Unit for appropriate prosecution.
B.  Any employee convicted of a misdemeanor or felony and sentenced to a term of incarceration of at least ninety (90) days in this state shall have all benefits for permanent total disability awarded by the Workers’ Compensation Court, the Court of Existing Claims or the Workers’ Compensation Commission and paid during the period of incarceration deposited to the credit of an account established pursuant to Section 549 of Title 57 of the Oklahoma Statutes for distribution in full to the Department of Corrections for costs of incarceration.  The State Board of Corrections shall have the power to collect workers’ compensation benefits on behalf of the prisoner as provided in this subsection and to distribute the benefits as provided by law.
C.  The Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, shall, every three (3) years, review the status of any employee receiving benefits for permanent total disability.  Upon request of the employer or insurance carrier, the Court or Commission, as applicable, 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 Court or Commission.
SECTION 41.     AMENDATORY     85 O.S. 2011, Section 337, is amended to read as follows:
Section 337.  A.  If an injury or occupational disease causes death, weekly income benefits shall be payable in the amount and for the benefit of the persons following, subject to the maximum limits specified hereafter:
1.  If there is a surviving spouse, to such surviving spouse who shall remain unmarried, seventy percent (70%) of the average weekly wages the deceased was earning.  In no event shall this spousal weekly income benefit be diminished by the award to other beneficiaries.  In addition to the benefits theretofore paid or due, two (2) years’ indemnity benefit in one lump sum shall be payable to a surviving spouse upon remarriage;
2.  If there is a surviving spouse and a child or children, fifteen percent (15%) of the average weekly wages the deceased was earning for each child.  Where there are more than two such children, the income benefits payable for the benefit of all children shall be divided among all children, to share and share alike, subject to the maximum limits in subsection D of this section;
3.  To the children, if there is no surviving spouse, fifty percent (50%) of the average weekly wages the deceased was earning for one child, and twenty percent (20%) of such wage for each additional child, divided among all children, to share and share alike, subject to the maximum limits in subsection D of this section;
4.  The weekly income benefits payable for the benefit of any child under this section shall cease when the child dies, marries, or reaches the age of eighteen (18), unless the child is over eighteen (18) years of age and remains enrolled as a full-time student in high school or is being home-schooled in a high-school course approved by the Oklahoma Department of Education; or unless a child is over eighteen (18) years of age and is physically or mentally incapable of self-support; or unless the child is under the age of twenty three (23) and enrolled as a full-time student in any accredited institution of higher education or vocational or technology education;
5.  If there is no surviving spouse or children, to each parent, if actually dependent, twenty-five percent (25%) of the average weekly wages the deceased was earning, subject to the maximum limits in subsection D of this section;
6.  If there is no surviving spouse or children, to the brothers, sisters, grandparents and grandchildren, if actually dependent, twenty-five percent (25%) of the average weekly wages the deceased was earning to each such dependent.  If there should be more than one of such dependents, the total income benefits payable for the benefit of such dependents shall be divided to share and share alike, subject to the maximum limits in subsection D of this section;
7.  The income benefits for each beneficiary under paragraphs 5 and 6 of this subsection shall be paid until the beneficiary, if a parent or grandparent, dies, marries or ceases to be actually dependent, or, if a brother, sister or grandchild, dies, marries or reaches the age of eighteen (18), is over the age of eighteen (18) and ceases to be physically or mentally incapable of self-support or ceases to be actually dependent.
B.  A person ceases to be actually dependent when the person’s income from all sources exclusive of workers’ compensation income benefits is such that, if it had existed at the time the original determination of actual dependency was made, it would not have supported a finding of dependency.  In all cases, the period of actual dependency shall be presumed to be no longer than three (3) years after the person was found to be actually dependent.  The presumption may be overcome by proof of continued actual dependency.
C.  Change in dependents.  Upon the cessation of income benefits under this section to or for the benefit of any person, the income benefits payable to the remaining persons who continue to be entitled to income benefits for the unexpired part of the period during which their income benefits are payable shall be that which such persons would have received if they had been the only persons entitled to income benefits at the time of the decedent’s death.
D.  For the purposes of this section, the average weekly wage of the employee shall be taken as not more than the state’s average weekly wage.  The aggregate weekly income benefits payable to all beneficiaries under this section shall not exceed one hundred percent (100%) of the average weekly wages of the employee or one hundred percent (100%) of the state’s average weekly wage, whichever is less.
E.  Where some pecuniary loss may be shown by heirs-at-law of the deceased, as defined by the descent and distribution statutes of Oklahoma, who are otherwise not entitled to receive benefits under other provisions of this section, such heirs-at-law shall receive compensation for their pecuniary loss not to exceed an aggregate of Five Thousand Dollars ($5,000.00).
F.  In the event that no benefits under other provisions of this section are paid to the dependents or the heirs-at-law of the deceased, an amount not to exceed Eight Thousand Dollars ($8,000.00) shall be paid for funeral expenses.
G.  In addition to weekly income benefits, if there is a surviving spouse and surviving children entitled to receive death benefits herein, such survivors shall be entitled to an immediate lump-sum payment of One Hundred Thousand Dollars ($100,000.00) to the spouse and Twenty-five Thousand Dollars ($25,000.00) to each surviving child not to exceed two children.  In addition, the survivors shall be entitled to receive funeral benefits in an amount not to exceed Ten Thousand Dollars ($10,000.00).
H.  In addition to weekly income benefits, if there is no surviving spouse, but there are surviving children entitled to receive death benefits herein, each surviving child shall be entitled to a lump-sum payment of Twenty-five Thousand Dollars ($25,000.00), provided the total amount of lump-sum payments shall not exceed One Hundred Fifty Thousand Dollars ($150,000.00), to be divided among all the children to share and share alike.  The survivors shall also be entitled to receive funeral benefits in an amount not to exceed Ten Thousand Dollars ($10,000.00).
I.  Any claim under this section shall be substantiated by the filing of a properly executed and authenticated proof of loss, which form shall be prescribed by the Administrator or the Workers’ Compensation Commission, and payment of such sum shall be made within fifteen (15) days after adjudication of entitlement by the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, or the Court of Existing Claims for claims for injuries that occurred before November 1, 2013.  Such sum shall not be subject to any award of attorney fees in uncontested cases, except the Court shall appoint a guardian ad litem to represent known and unknown minor children and the guardian ad litem shall be paid a reasonable fee for the services.
J.  All orders of the Court or Commission awarding lump-sum death benefits and weekly income benefits to a child under eighteen (18) years of age, shall provide for the appointment of a guardian ad litem and that such benefits, after deducting for attorney fees and expenses incurred to prosecute the claim, be deposited, with proof of receipt thereof, in a federally insured banking institution in Oklahoma.  The benefits so deposited shall not be withdrawn without further order of the Court or until the child reaches the age of eighteen (18).  An annual accounting of all such trust funds shall be made to the Court by the duly appointed guardian ad litem.
K.  Any claim for death benefits may be concluded by compromise settlement on a form prescribed by the Administrator and approved by a judge of the Court Workers’ Compensation Commission.  In the event a claimant is a minor, a duly appointed guardian ad litem shall be authorized to enter into such compromise settlement.
SECTION 42.     AMENDATORY     85 O.S. 2011, Section 338, is amended to read as follows:
Section 338.  A.  An employee who has suffered an accidental injury or occupational disease covered by the Workers’ Compensation Code shall be entitled to prompt and reasonable physical rehabilitation services.  When, as a result of the injury, the employee is unable to perform the same occupational duties the employee was performing prior to the injury, the employee shall be entitled to such vocational rehabilitation services provided by a technology center school, a public or private vocational skills 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 so as to restore the employee to gainful employment.  Vocational rehabilitation benefits shall not be provided to any nondocumented employee who is unable, by law, to be hired in Oklahoma.
B.  The Administrator of the Workers’ Compensation Court Commissioner shall hire or contract for a Vocational Rehabilitation Director to oversee the vocational rehabilitation program of the Workers’ Compensation Court Commission.  The Vocational Rehabilitation Director shall have not less than a master’s degree in rehabilitation counseling and at least ten (10) years of experience in rehabilitation of injured workers.  The job of the Vocational Rehabilitation Director is to help injured workers return to the work force through the encouragement of light-duty work or retraining.
C.  Upon the request of either party, or by order of the Court, the Vocational Rehabilitation Director will assist the Court in determining shall determine if it is appropriate for a claimant to receive vocational rehabilitation training or services, and shall oversee such training or services.  If appropriate, the Court Director 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 Court, or fails to complete in good faith the vocational rehabilitation training ordered by the Court, then the cost of the evaluation and services or training rendered may, in the discretion of the Court, 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 Court shall order that any rehabilitation services or training, recommended in the report, or such other rehabilitation services or training as the Court 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 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.  If possible, vocational rehabilitation services shall begin concurrently with medical treatment, while the injured employee is temporarily totally disabled and receiving benefits.  The Director may order an evaluation for any injured worker receiving medical case management services.  All such administrative orders are subject to appeal to the full Commission. 
D.  Whenever it is apparent to the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, that the employee’s injury will prevent the employee from returning to his or her former employment, the Court or Commission, as applicable, may order vocational rehabilitation services, even though the employee remains temporarily totally disabled and under active medical care.  In granting early benefits for vocational rehabilitation, the Court 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 impairment hearing in the claim.
E.  No person shall be adjudicated to be permanently and totally disabled, except in claims against the Multiple Injury Trust Fund, unless first having obtained an evaluation as to the practicability of restoration to gainful employment through vocational rehabilitation services or training.  The employee seeking permanent and total benefits shall pay the cost of the evaluation.  If an employee claiming permanent total disability status unreasonably refuses to be evaluated or to accept vocational rehabilitation services or training, or is capable of retraining but is ineligible pursuant to subsection A of this section, permanent total disability benefits shall not be awarded during the period of such refusal, and the employee shall be limited to permanent partial impairment benefits only.
F.  Vocational rehabilitation services or training shall not extend for a period of more than fifty-two (52) one hundred four (104) weeks.  This period may be extended for an additional fifty-two (52) weeks or portion thereof by special order of the Court of Existing Claims or Commission, after affording the interested parties an opportunity to be heard.  A request for vocational rehabilitation services or training may be filed with the Administrator of the Court of Existing Claims or Commission by an interested party at any time after the date of injury but not later than sixty (60) days from the date of the final determination that permanent partial impairment benefits are payable to the employee.
G.  Where 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 Workers’ Compensation Code.
H.  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 a period of fifty-two (52) one hundred four (104) weeks, which may be extended by the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, for up to a maximum of an additional fifty-two (52) weeks.  No attorney fees shall be awarded or deducted from such benefits received during this period.  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 and shall not be payable as a separate item in any settlement, order or award to the claimant; nor shall the value of the vocational rehabilitation services or training be included in any calculation for legal fees.
I.  Any employer willing to provide on-the-job training to an injured employee may opt out of workers' compensation insurance while the employee is in such training.
J.  If an employer does not offer light duty or early return to work programs, the injured employee shall be eligible for a vocational evaluation.
SECTION 43.     AMENDATORY     85 O.S. 2011, Section 339, is amended to read as follows:
Section 339.  A.  If the employee and employer shall reach an agreement for the full, final and complete settlement of any issue of a claim pursuant to the Workers’ Compensation Code, a form designated as “Compromise Settlement” shall be signed by both the employer and employee, or representatives thereof, and shall be approved by a judge of the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Administrator of the Workers’ Compensation Court and filed with the Administrator Commission, for claims for injuries that occurred on or after November 1, 2013.  In cases in which the employee is not represented by legal counsel, a judge of the Court of Existing Claims or the Administrator Commission shall have jurisdiction to approve a full, final and complete settlement of any issue upon the filing of an Employer’s First Notice of Injury.  There shall be no requirement for the filing of an Employee’s First Notice of Accidental Injury and Claim for Compensation to effect such settlement in cases in which the employee is not represented by legal counsel.
B.  In the event all issues of a claim are not fully, finally and completely settled by a Compromise Settlement, the issues not settled by the parties and subject to the Court’s continuing jurisdiction of the Court or the Workers’ Compensation Commission, whichever is applicable, must be noted by appendix to the Compromise Settlement or on a form created for such purpose by the Administrator of the Court of Existing Claims or the Commission.  The appendix must be signed by the parties and approved by the Court as set forth herein.
C.  In the absence of fraud, a Compromise Settlement shall be deemed binding upon the parties thereto and a final adjudication of all rights pursuant to the Workers’ Compensation Code.  An official record shall be made by a court reporter of the testimony taken to effect the Compromise Settlement.
D.  A good-faith effort shall be made on the part of any insurance carrier, CompSource Oklahoma, or group self-insured plan to notify an insured employer of the possibility of and terms of any settlement of a workers’ compensation case pursuant to this section.  Written comments or objections to settlements shall be filed with the Court and periodically shared with the management of the applicable insurer.  A written notice shall be made to all policyholders of their right to a good-faith effort by their insurer to notify them of any proposed settlement, if the policyholder so chooses.
SECTION 44.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 339.1 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  1.  The Workers’ Compensation Commission may review any compensation order, award, or decision, except joint petition settlements which have been agreed upon and filed with the Commission.
2.  Review by an administrative law judge or the Commission of any compensation order or award, made by the administrative law judge or the Commission, may be done at any time within three (3) months of termination of the compensation period fixed in the original compensation order or award, upon the application of any party in interest, on the ground of a change in physical condition.
3.  Upon the review, the Commission may make an order or award terminating, continuing, decreasing, or increasing for the future the compensation previously awarded, subject to the maximum limits provided for in the Workers’ Compensation Code. 
B.  The review and subsequent order or award shall be made in accordance with the procedure prescribed in the Workers’ Compensation Code. 
C.  The Commission may, at any time within twelve (12) months from the issuance of any order or award, correct any clerical error in any order or award.
SECTION 45.     AMENDATORY     85 O.S. 2011, Section 340, is amended to read as follows:
Section 340.  A.  Upon completion of any hearing, after the judge has made a just and equitable order, decision or award, any party feeling aggrieved by such order, decision, or award, shall, within ten (10) days, have the right to take an appeal to the Workers’ Compensation Court sitting en banc Commission by filing with the Administrator of the Workers’ Compensation Court a notice of such appeal.  The Court en banc shall consist of three (3) judges of the Court, none of whom shall have presided over any of the previous hearings on the claim.  The Court en banc, after hearing argument of counsel, or a party not represented by counsel, Commission may reverse or modify the decision only if it determines that such decision was against the clear weight of the evidence or contrary to law.  Upon completion of the appeal, the members of the Court sitting en banc Commission shall issue such order, decision or award as is proper, just and equitable.  All proceedings of the Court sitting en banc shall be recorded by a court reporter of the Court.  Any order of the Court sitting en banc which reverses a decision of the trial judge shall contain specific findings to explain such reversal.  All orders, decisions or awards shall be approved by a majority of the members of the Court sitting en banc.  Provided, there may be more than one Court en banc sitting at the same time for purposes of hearing the appeals provided for herein.
B.  Appeals shall be allowed on a question of law or a question of fact, or a mixed question of law and fact, and shall be determined on the record made before the trial judge Commission.  Provided, when the order of the judge of the Court Commission making an award to a claimant is appealed by the employer or the insurance carrier, interest shall be allowed on the accrued amounts of the award due from the date the award was filed, if the award is not modified or vacated on appeal.
C.  In each case filed with the Court en banc Commission, and at the time of filing same, the appellant shall deposit with the clerk as costs One Hundred Seventy-five Dollars ($175.00) of which no rebate of any part thereof shall be made.  The fee collected under this subsection shall be deposited as follows: One Hundred Fifty Dollars ($150.00) to the credit of the Administrator of Workers’ Compensation Revolving Fund for the costs of administering the Workers’ Compensation Code; and Twenty-five Dollars ($25.00) to the credit of the Administrator of Workers’ Compensation Revolving Fund for purposes of implementing the provisions of this act the Workers’ Compensation Code, including strengthening and providing additional funding for the Attorney General’s Workers’ Compensation Fraud Unit, providing counseling services pursuant to the workers’ compensation counselor or ombudsman program and safety in the workplace.
D.  The order, decision or award of the Court Commission shall be final and conclusive upon all questions within its jurisdiction between the parties, unless, within twenty (20) days after a copy of such order, decision or award has been sent by the Administrator to the parties affected, an action is commenced in the Supreme Court, to review such order, decision or award.  Any order, decision or award made by a judge of the Court an administrative law judge of the Commission shall be considered as final under the provisions of this section unless appealed to the Court sitting en banc Commission as provided for in subsection A of this section.  The order, decision or award of a judge of the Court the Commission shall be final and conclusive upon all questions within the judge’s Commission’s jurisdiction between the parties unless appealed directly to the Supreme Court or to the Court sitting en banc as hereinbefore provided.  Any party litigant desiring to appeal directly from such an order, decision or award of the Commission to the Supreme Court, shall, within twenty (20) days after a copy of the order, decision or award has been sent by the Administrator to the parties affected, commence an action in the Supreme Court to review such order, decision or award.  The Supreme Court shall have original jurisdiction of such action, and shall prescribe rules for the commencement and trial of the same.  After the effective date of this act, regardless of the date of injury, the.  The Supreme Court may hear appeals and modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds, and no other, that:
1.  The Court Commission acted without or in excess of its powers;
2.  The order or award was contrary to law;
3.  The order or award was procured by fraud; or
4. 3.  The order or award was against the clear weight of the evidence of record.
Such action shall be commenced by filing with the Clerk of the Supreme Court a certified copy of the order, decision or award of the Court sitting en banc or the judge Commission attached to the petition by the complaint wherein the complainant or petitioner shall make the assignments or specifications as to wherein the order, decision or award is erroneous or illegal.  Provided, however, no proceeding to reverse, vacate or modify any order, decision or award of the Court sitting en banc or judge of the Court Commission wherein compensation has been awarded an injured employee shall be entertained by the Supreme Court unless the Administrator shall take a written undertaking to the claimant executed on the part of the respondent or insurance carrier, or both, with one or more sureties to be approved by the Administrator, to the effect that the appellant will shall pay the amount of the award rendered therein, together with interest thereon from the date of the award by the judge of the Court Commission and all costs of the proceeding, or on the further order of the Court sitting en banc or judge of the Court Commission after the appeal has been decided by the Supreme Court, except that municipalities and other political subdivisions of this state are exempt from making such written undertakings.  Before the Clerk of the Supreme Court shall accept the action for filing, a certificate from the Administrator shall be required, showing that this provision has been complied with.  The proceedings shall be heard in a summary manner and shall have precedence over all other civil cases in the Supreme Court, except preferred Corporation Commission appeals.  The Supreme Court shall require the appealing party to file within forty-five (45) days from the date of the filing of an appeal or an order appealed from, a transcript of the record of the proceedings before the Court Commission, or upon application and for good cause shown, the Supreme Court may extend the time for filing the transcript of the record for a period of time not to exceed ninety (90) days from the date, and such action shall be subject to the law and practice applicable to other civil actions cognizable in the Supreme Court.  The Court whose action was appealed Commission shall enter any order directed by the Supreme Court under the final determination.
E.  A fee of One Hundred Dollars ($100.00) per appeal to the Supreme Court shall be collected by the Administrator and taxed as costs for preparing, assembling, indexing and transmitting the record for appellate review.  This fee shall be paid by the party taking the appeal.  If more than one party to the action shall prosecute an appeal from the same order, decision or award, the fee shall be paid by the party whose petition in error is determined by the Court Workers’ Compensation Commission or by the appellate court to commence the principal appeal.  The fees collected shall be deposited to the credit of the Administrator of Workers’ Compensation Revolving Fund.
F.  When the only controverted issue in a death claim is the determination of proper beneficiaries entitled to receive death benefits, and the parties-beneficiary appeal the decision of the Court Commission, the employer or insurance carrier may pay the proceeds, as they accrue, to the Administrator.  The Administrator shall hold the proceeds in trust in an interest-bearing account during the appeal period and shall distribute the proceeds and interest to the proper beneficiaries upon written direction of the Court at the conclusion of the appeals process.  The employer or insurance carrier shall not be taxed interest or cost on the order of the death claim if payments have been made to the Administrator as they accrue.
G.  For purposes of this section, interest shall be computed pursuant to Section 727.1 of Title 12 of the Oklahoma Statutes.
H.  The Supreme Court may require a bond from any party, if it deems necessary, in cases appealed to the Court.
SECTION 46.     AMENDATORY     85 O.S. 2011, Section 342, is amended to read as follows:
Section 342.  Within the time prescribed by Section 18 318 of this act title, the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, may find that the injured employee has suffered a change of condition for the worse and order temporary total disability, additional permanent partial impairment, permanent total disability, and medical benefits.  Provided, that any change of condition shall only be found to those body parts adjudicated by the previous award or as a result of a consequential injury and must be proved by objective medical evidence of a change of condition.  Additional permanent partial impairment awarded after a change of condition and the permanent partial impairment from the previous award shall not exceed five hundred twenty (520) weeks, except for additional permanent partial impairment resulting from amputation or surgery as a result of the change of condition.
SECTION 47.     AMENDATORY     85 O.S. 2011, Section 343, is amended to read as follows:
Section 343.  A.  The Workers’ Compensation Court Commission shall have exclusive jurisdiction of claims for legal services rendered in regard to the prosecution of a claim under this act the Workers’ Compensation Code.  A claim for legal services in contested temporary disability cases shall not exceed ten percent (10%) of the amount of the award and shall be paid periodically with the attorney receiving every tenth check.  There shall be no claim for legal services in cases in which periodic temporary total disability compensation was being paid at the time of the filing of the Employee’s First Notice of Injury and Claim for Compensation.
B.  A claim for legal services shall not exceed twenty percent (20%) of the amount of the award for permanent partial impairment.  The legal fee shall be deducted from the end of the award, commuted to a lump sum and be paid within twenty (20) days of the order awarding such permanent partial impairment.
C.  A claim for legal services shall not exceed twenty percent (20%) of a permanent total disability award.  The right to such legal fee shall be vested when the award therefor becomes final and shall be paid periodically with the attorney receiving twenty percent (20%) of each weekly check to the claimant until the attorney fee is satisfied, based upon a maximum of four hundred (400) weeks of compensation.
D.  A claim for legal services in a contested death case shall not exceed twenty percent (20%) of the lump sum and accrued benefits awarded and shall be paid in a lump sum.  The employer shall deduct from continuing periodic payments at a rate of ten percent (10%) per payment until the legal fee is satisfied.
E.  In any claim in which the respondent has admitted compensability of an accidental injury within twenty (20) days of the filing of an Employee’s First Notice of Accidental Injury and Claim for Compensation, has not disputed medical treatment, and has made a settlement offer in writing within thirty (30) days after receipt of notice that the claimant reaches has reached maximum medical improvement, the attorney fee shall be limited to thirty-five percent (35%) of the amount of any award or settlement of permanent partial impairment which is greater than the amount of the offer.  In addition, an attorney fee shall be awarded for other contested benefits obtained on behalf of the injured worker at any time during the pendency of the claim and shall be based upon a reasonable hourly rate.  In no event shall the total attorney fee be in excess of twenty percent (20%) of the total permanent partial impairment award or settlement.
F.  No attorney fees shall be awarded in an uncontested death case, for the value of vocational rehabilitation in a compromise settlement or order of the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, and for the amount of a Medicare Set Aside trust agreement required by the Centers for Medicaid and Medicare Services of the U.S. Department of Health and Human Services.
G.  All attorney fees shall be deducted from the award or settlement to the injured worker, except as otherwise provided in this act the Workers’ Compensation Code.
H.  In no event shall any claim for legal services exceed twenty percent (20%) of the total award or compromise settlement.
I.  An attorney and counselor shall not deduct or withhold any portion of a judgment from the Commission, a court of law, settlement proceeds of a client, or any monies held in trust for a client for the purpose of donating or contributing funds or monies to a political fund, political action committee, campaign of any kind, or candidate for state, federal or local office.
SECTION 48.     AMENDATORY     85 O.S. 2011, Section 344, is amended to read as follows:
Section 344.  A.  If the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, determines that any proceeding has not been brought on a reasonable ground, or that denial of benefits has not been based on a reasonable ground, the Court or Commission, as applicable, shall assess the total cost of the proceeding on the party who has brought the proceeding, or the party who has unreasonably denied payment of benefits.
B.  In the event an employer or insurance company fails to pay travel expenses as required by this act the Workers’ Compensation Code within sixty (60) days from the receipt of a request for reimbursement, the Court or Commission, as applicable, shall assess a Five Hundred Dollar ($500.00) penalty of Five Hundred Dollars ($500.00) against the employer or insurance company, payable to the claimant.
SECTION 49.     AMENDATORY     85 O.S. 2011, Section 345, is amended to read as follows:
Section 345.  A.  Awards for permanent partial impairment shall be made for the total number of weeks of compensation which the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, shall find the claimant will be entitled to receive, less any sums previously paid which the Court may find to be a proper credit thereon.  When the award becomes final, the whole sum or any unpaid portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of the claimant’s death, by the surviving beneficiary entitled to the proceeds as provided in Section 49 349 of this act title.  All awards shall be paid by periodic installments as determined by the Court or Commission, as applicable.  Whenever an injured person receives an award for permanent partial impairment, the injured employee or claimant, for good cause shown, may have the award commuted to a lump-sum payment by permission of the Court or Commission.  The lump-sum payment shall not exceed twenty-five percent (25%) of the total award.  The balance of the total award shall be paid in periodic installments.
B.  Awards for permanent total disability shall entitle the claimant to receive weekly income benefits for the period prescribed in Section 36 336 of this act title.  When an award for permanent total disability becomes final, the accrued portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of the claimant’s death, by the surviving beneficiary entitled to the proceeds as provided in Section 49 349 of this act title.  Permanent total disability awards shall not be commuted to a lump-sum payment.
C.  All weekly or periodic payments shall be made through the use of United States legal tender, negotiable instruments payable on demand or negotiable drafts.  Failure for ten (10) days to pay any final award or any portion thereof as ordered shall immediately entitle the beneficiary to an order finding the respondent and insurance carrier to be in default and all unpaid portions, including future periodic installments unpaid, shall immediately become due.
D.  An award for disability may be made after the death of the injured employee, when death results from causes other than the injury.  If an employee dies as a result of a compensable injury or an occupational disease, any unaccrued portions of an award or order shall abate.
E.  In the event salary or any other remuneration is paid in lieu of temporary total disability compensation during the period of temporary total disability or for any other period of time, no respondent or insurance carrier shall be allowed to deduct from the amount of the award for permanent partial or permanent total disability any amounts paid for temporary total disability, nor shall the respondent or insurance carrier be given credit for future benefits under the Workers’ Compensation Code.
SECTION 50.     AMENDATORY     85 O.S. 2011, Section 346, is amended to read as follows:
Section 346.  A.  If payment of compensation or an installment payment of compensation due under the terms of an award, except in regard to an award from the Multiple Injury Trust Fund, is not made within ten (10) days after the same is due by the employer or insurance carrier liable therefor, the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, may order a certified copy of the award to be filed in the office of the court clerk of any county, which award whether accumulative or lump sum shall have the same force and be subject to the same law as judgments of the district court.  The provisions of this section shall be cumulative to other provisions relating to liens or enforcement of awards or claims for compensation.
B.  If any insurance carrier intentionally, knowingly, or willfully violates any of the provisions of the Workers’ Compensation Code or any published rules or regulations promulgated thereunder, the Insurance Commissioner, on the request of a judge of the Court of Existing Claims or the Administrator of the Workers’ Compensation Court Commission, shall suspend or revoke the license or authority of such insurance carrier to do a compensation business in this state.
C.  Creation of a new business entity for the purpose of avoiding payment of a workers’ compensation judgment is prohibited.
SECTION 51.     AMENDATORY     85 O.S. 2011, Section 347, is amended to read as follows:
Section 347.  A.  Failure to attend in obedience to a subpoena issued by the Workers’ Compensation Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, may be punishable as contempt of the Court.  The Court or Commission, as applicable, may compel obedience to the subpoena by attachment proceedings as for contempt pursuant to Sections 393 and 396 of Title 12 of the Oklahoma Statutes.  Punishment for failure to attend in obedience to a subpoena, except in case of a demand and failure to pay witness fees as provided by this act the Workers’ Compensation Code, shall be limited to a fine not to exceed One Thousand Dollars ($1,000.00) which the Court may order the witness to pay.  The fine imposed by the Court or Commission shall be paid into the Administrator Commissioner of Workers’ Compensation Revolving Fund.
B.  In case of disobedience of any person to comply with the order of the Court or Commission, the judge of the district court of the county in which the person resides or of the county in which such hearing is being conducted, on application of a judge of the Court of Existing Claims or the Commission, shall compel obedience by attachment proceedings as for contempt pursuant to Sections 393 and 396 of Title 12 of the Oklahoma Statutes.
SECTION 52.     AMENDATORY     85 O.S. 2011, Section 348, is amended to read as follows:
Section 348.  A.  If an employee entitled to compensation under the Workers’ Compensation Code is injured or killed by the negligence or wrong of another not in the same employ, such injured employee, surviving spouse or surviving dependent shall, before any suit or claim under the Workers’ Compensation Code, elect whether to take compensation under the Workers’ Compensation Code, or to pursue the employee’s remedy against such other.  Such election shall be evidenced in such manner as the Administrator may by rule or regulation prescribe.  If the employee, surviving spouse or surviving dependent elects to take compensation under the Workers’ Compensation Code, the cause of action against such other shall be assigned to the insurance carrier liable for the payment of such compensation, and if the employee, surviving spouse or surviving dependent elects to proceed against such other person or insurance carrier, as the case may be, the employer’s insurance carrier shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by the Workers’ Compensation Code for such case.  The compromise of any such cause of action by the employee, surviving spouse or surviving dependent at any amount less than the compensation provided for by the Workers’ Compensation Code shall be made only with the written approval of the Commission or the Court of Existing Claims.  Whenever recovery against such other person is effected without compromise settlement by the employee, surviving spouse or surviving dependent or his or her representatives, the employer or insurance company having paid compensation under the Workers’ Compensation Code shall be entitled to reimbursement as hereinafter set forth and shall pay from its share of the reimbursement a proportionate share of the expenses, including attorney fees, incurred in effecting the recovery to be determined by the ratio that the amount of compensation paid by the employer bears to the amount of the recovery effected by the employee, surviving spouse or surviving dependent.  After the expenses and attorney fees have been paid, the balance of the recovery shall be apportioned between the employer or insurance company having paid the compensation and the employee or the employee’s representatives in the same ratio that the amount of compensation paid by the employer bears to the total amount recovered; provided, however, the balance of the recovery may be divided between the employer or insurance company having paid compensation and the employee or the employee’s representatives as they may agree.  In the event that recovery is effected by compromise settlement, the expenses, attorney fees and the balance of the recovery may be divided between the employer or insurance company having paid compensation and the employee, surviving spouse or surviving dependent or the employee’s representatives as they may agree.  Provided, that in the event they are unable to agree, then the same shall be apportioned by the district court having jurisdiction of the employee’s action against such other person in such manner as is just and reasonable.
B.  The employer or employer’s insurance carrier shall have the right of subrogation to recover money paid by the employer or employer’s insurance carrier for death claims or death benefits under the Workers’ Compensation Code from third persons, with all common law rights against other than the employer and his or her employees preserved and to be in those persons who would have had such rights had there been no death claim or death benefits under the Workers’ Compensation Code.
C.  The employer or employer’s insurance carrier shall have the right of subrogation to recover money paid by the employer or employer’s insurance carrier for the expenses of the last illness or accident under the Workers’ Compensation Code from third persons, with all common law rights against other than the employer and his or her employees preserved and to be in those persons who would have had such rights had there been no benefits under the Workers’ Compensation Code.
D.  In the event of a third party recovery by an injured employee or surviving spouse or surviving dependent, the employer or insurance carrier shall be granted a credit against future benefits under this act in an amount equal to the net recovery of the employee, surviving spouse or surviving dependent.
SECTION 53.     AMENDATORY     85 O.S. 2011, Section 350, is amended to read as follows:
Section 350.  A.  A lien against workers’ compensation benefits is authorized for the purpose of enforcing a judgment for child support.  Child support liens filed in accordance with Section 135 of Title 43 of the Oklahoma Statutes are specifically authorized and shall be paid in accordance with such statute without any order of the Workers’ Compensation Court of Existing Claims or the Workers’ Compensation Commission.
B.  Additionally, all income assignments or wage assignments for child support issued pursuant to Section 1170 of Title 12 of the Oklahoma Statutes or Section 237.7 of Title 56 of the Oklahoma Statutes are specifically authorized and shall be paid in accordance with such statutes without any order of either the Court or the Commission.
C.  In the event a child support lien is filed in a case before the Court or Commission, a judge of the Court of Existing Claims or the Workers’ Compensation Commissioner shall recognize such lien in any award of monetary benefits and the employer or insurance carrier shall include the name of the person or government agency asserting the lien on any check for benefits in excess of One Thousand Dollars ($1,000.00).
SECTION 54.     AMENDATORY     85 O.S. 2011, Section 351, is amended to read as follows:
Section 351.  A.  An employer shall secure compensation to employees in one of the following ways:
1.  By insuring and keeping insured the payment of such compensation with any stock corporation, mutual association, or other concerns authorized to transact the business of workers’ compensation insurance in this state, or by exchanging contracts of indemnity or interinsurance, pursuant to reasonable rules prescribed by the Administrator of the Workers’ Compensation Court of Existing Claims or the Workers’ Compensation Commission providing for and securing the payment of the compensation provided for in the Workers’ Compensation Code.  When an insurer issues a policy to provide workers’ compensation benefits pursuant to the provisions of the Workers’ Compensation Code, the insurer shall file, or cause to be filed, with the Administrator or Commission a notice in such form and detail as the Administrator or Commission may prescribe by rule.  The notice shall contain the name, address, and principal occupation of the employer, the number, effective date, and expiration date of the policy, and such other information as may be required by the Administrator or Commission.  The notice shall be filed by the insurer within thirty (30) days after the effective date of the policy.  Any insurer who fails to file the notice required by this subsection shall be liable for an administrative violation and subject to a fine by the Administrator Commission of not more than One Thousand Dollars ($1,000.00);
2.  By obtaining and keeping in force guaranty insurance with any company authorized to do guaranty business in this state.  Each company that issues such guaranty insurance shall file a copy of the contract with the Administrator or Commission within thirty (30) days after the effective date of the contract.  Any company that fails to file a copy of the contract as required by this subsection shall be liable for an administrative violation and subject to a fine by the Administrator or Commission of not more than One Thousand Dollars ($1,000.00);
3.	a.	By furnishing satisfactory proof to the Administrator or Commission of the employer’s financial ability to pay such compensation.  The Administrator or Commission, pursuant to rules adopted by the Workers’ Compensation Court or, the Administrator or the Commission for an individual self-insured or a group self-insurance association, shall require an employer that has:
(1)	less than one hundred employees or less than One Million Dollars ($1,000,000.00) in net assets to:
(a)	deposit with the Administrator Commission securities, an irrevocable letter of credit or a surety bond payable to the state, in an amount determined by the Administrator Commission which shall be at least an average of the yearly claims for the last three (3) years, or
(b)	provide proof of excess coverage with such terms and conditions as is commensurate with their ability to pay the benefits required by the provisions of the Workers’ Compensation Code, or
(2)	one hundred or more employees and One Million Dollars ($1,000,000.00) or more in net assets to:
(a)	secure a surety bond payable to the state, or an irrevocable letter of credit, in an amount determined by the Administrator Commission which shall be at least an average of the yearly claims for the last three (3) years, or
(b)	provide proof of excess coverage with such terms and conditions as is commensurate with their ability to pay the benefits required by the provisions of the Workers’ Compensation Code.
b.	The Administrator Commission may waive the requirements of this paragraph in an amount which is commensurate with the ability of the individual self-insured or group self-insurance association to pay the benefits required by the provisions of the Workers’ Compensation Code.  Irrevocable letters of credit required by this paragraph shall contain such terms as may be prescribed by the Administrator Commission and shall be issued for the benefit of the Court Commission by a financial institution whose deposits are insured by the Federal Deposit Insurance Corporation.
c.	An employer, upon application to become a member of a group self-insurance association, shall file with the Administrator Commission a notice, in such form as prescribed by the Administrator Commission, acknowledging that the employer, by entering into a group self-insurance association, accepts joint and several liability.  Such notice shall be submitted to the Court Commission with the application for membership.
d.	All self-insurers under this act the Workers’ Compensation Code shall participate in the Workers’ Compensation Self-Insurance Guaranty Fund created pursuant to Section 60 360 of this act title, as a condition of authority to self-insure in this state, except public employers that self-insure pursuant to Section 13 313 of this act title.
e.	A self-insurer whose permit to self-insure is revoked, denied for renewal or surrendered is not relieved of the obligation for compensation to an employee for a compensable injury that occurred during the period of self-insurance.  The security required under this section, including any interest thereon, shall be maintained by the Administrator Commission as provided in this act the Workers’ Compensation Code until each claim for workers’ compensation benefits is paid, settled, or lapses under this act the Workers’ Compensation Code, and costs of administration of such claims are paid.
B.  1.  An employer who fails to comply with the provisions of this section shall be subject to the penalties provided for in Sections 2 302 and 52 352 through 54 354 of this act title.
2.  Failure on the part of any employer to secure the payment of compensation provided in the Workers’ Compensation Code shall have the effect of enabling the Administrator to proceed on behalf of an injured employee of such employer against the employer as provided in this section and Section 2 302 of this act title.
3.  Any employer that knowingly provides false information to the Administrator Commission for purposes of securing or maintaining a self-insurance permit shall be subject to the perjury laws of this state.
SECTION 55.     AMENDATORY     85 O.S. 2011, Section 356, is amended to read as follows:
Section 356.  A.  Every policy of insurance covering the liability of the employer for compensation issued by a stock company or by a mutual association or other concern authorized to transact workers’ compensation insurance in this state shall contain a provision setting forth the right of the Administrator of the Workers’ Compensation Court of Existing Claims and the Workers’ Compensation Commission to enforce in the name of the state, for the benefit of the person entitled to the compensation insured by the policy either by filing a separate application or by making the insurance carrier a party to the original application, the liability of the insurance carrier in whole or in part for the payment of such compensation; provided, however, that payment in whole or in part of the compensation by either the employer or the insurance carrier shall, to the extent thereof, be a bar to the recovery against the other of the amount so paid.
B.  Every such policy shall contain a provision that, as between the employee and the insurance carrier, the notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be on the part of the insurance carrier, that jurisdiction of the employer shall, for the purpose incorporated in this act the Workers’ Compensation Code, be jurisdiction of the insurance carrier, and that the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions or awards rendered against the employer for the payment of compensation under the provisions incorporated in this act the Workers’ Compensation Code.
C.  Every such policy shall contain a provision to the effect that the insolvency or bankruptcy of the employer shall not relieve the insurance carrier from the payment of compensation for injuries sustained by an employee during the life of such policy.
D.  1.  Every such policy issued to cover a risk in this state shall include provisions giving the insured employer the option of choosing a deductible amount for medical benefits in amounts ranging from Five Hundred Dollars ($500.00) to Two Thousand Five Hundred Dollars ($2,500.00) in increments of Five Hundred Dollars ($500.00).  The policy issued may also include separate provisions giving the insured employer the option of choosing a deductible amount for indemnity benefits in amounts ranging from Five Hundred Dollars ($500.00) to Two Thousand Five Hundred Dollars ($2,500.00) in increments of Five Hundred Dollars ($500.00).  The insured employer, if choosing to exercise the option, shall choose only one deductible amount.
2.  If an insured employer exercises the option and chooses a medical benefits deductible or indemnity benefits deductible, the insured employer shall be liable for the amount of the deductible or deductibles for the medical or indemnity benefits paid for each claim of work injury suffered by an injured employee.
3.  The Insurance Commissioner, in exercising the authority to approve the form of the policy to be issued, shall not approve any policy form that permits, directly or indirectly, any part of the deductible to be charged to or passed on to the injured worker or insurer.
4.  The insurer shall pay the entire cost of medical bills directly to the provider of the services and then seek reimbursement from the insured employer for the deductible amount.  The insurer shall pay the entire cost of the indemnity benefits as if no deductible were in place and then seek reimbursement from the insured employer for the deductible amount.
5.  If the insured employer does not reimburse the deductible amount directly to the insurer within sixty (60) days of a written demand therefor, the insurer shall pay the compensable medical claim or indemnity benefit and may seek to recover the full amount of such claim from the insured employer.
6.  Claim amounts up to Five Hundred Dollars ($500.00) annually which are paid under the medical benefits deductible or indemnity benefits deductible pursuant to this subsection shall be excluded from the calculation of the insured employer’s experience modifier.
7.  The provisions of this subsection shall be fully disclosed to the prospective purchaser in writing.
E.  Every such policy issued to a sole proprietor, partnership, limited liability company, corporation, or other business entity must disclose to the potential purchaser in writing the option to elect to include the sole proprietors, any or all of the partnership members, any or all of the limited liability company members, or any or all stockholder-employees as employees for the purpose of workers’ compensation insurance coverage by endorsing the policy in accordance with this act the Workers’ Compensation Code.
F.  Every contract or agreement of an employer the purpose of which is to indemnify the employer from loss or damage on account of the injury of an employee by accidental means, or on account of the negligence of such employer or the employer’s officer, agent or servant shall be absolutely void unless it shall also cover liability for the payment of the compensation provided for in this act.
G.  No contract of insurance issued by a stock company or mutual association or other concern against the liability arising under this act shall be canceled within the time limited in such contract for its expiration until at least ten (10) days after notice of intention to cancel such contract, on a date specified in such notice, shall be filed in the office of the Administrator and also served on the employer.  Such notice shall be served on the employer by delivering it to the employer or by sending it by mail, by registered letter, addressed to the employer at the employer’s last-known place of residence; provided that, if the employer is a partnership, then such notice may be so given to any one of the partners, and if the employer is a corporation, then the notice may be given to any agent or officer of the corporation upon whom legal process may be served.  Provided, however, if a contract of insurance has been terminated by an employer insured thereunder who has obtained other compensation insurance, as evidenced by filing in compliance with this act the Workers’ Compensation Code, and no intervening rights of any employee are involved, omission of a predecessor insurer to file notice of time of termination of liability shall not constitute basis for imposition of liability against such predecessor insurer.
H.  An insurance carrier or its representative commits an administrative violation under Title 36 of the Oklahoma Statutes if that person attends a workers’ compensation dispute resolution proceeding, including benefit review hearings, arbitrations, or contested case hearings, without complete authority or fails to exercise authority to effectuate agreement or settlement.
SECTION 56.     AMENDATORY     85 O.S. 2011, Section 358, is amended to read as follows:
Section 358.  A.  There is hereby created the “Individual Self-Insured Guaranty Fund Board”.  The Board shall have supervision over the administration and operation of the Individual Self-Insured Guaranty Fund.
B.  The Board shall consist of not less than three (3) nor more than nine (9) members.  Each member shall be from an employer who has been approved by the Workers’ Compensation Court Commission as an own-risk carrier or self-insured risk.  The Board shall be appointed by the Administrator of the Workers’ Compensation Court Commission.
The initial members of the Board shall be appointed to terms of office as follows:
1.  One member shall be appointed for one (1) year;
2.  One member shall be appointed for two (2) years; and
3.  One member shall be appointed for three (3) years.
If more than three members are appointed, the fourth member shall be appointed for four (4) years and each of the others appointed shall be for terms of office in the order of their appointment of one, two, three or four years with the ninth member also serving four (4) years.  Thereafter, each person appointed shall serve for four (4) years.  Provided, board members serving on the effective date of this act October 31, 2013, shall continue to serve until expiration of their respective terms.  Members may be appointed to successive terms.
C.  The State Treasurer shall establish the Individual Self-Insured Guaranty Fund in the State Treasury.
D.  The monies paid into the fund, together with the interest thereon, shall constitute the Individual Self-Insured Guaranty Fund.
E.  Until the Individual Self-Insured Guaranty Fund contains One Million Dollars ($1,000,000.00), the Oklahoma Tax Commission shall assess and collect from the employers carrying their own-risk a tax at the rate of one percent (1%) of the total compensation for permanent partial impairment awards paid out during each quarter of the calendar year by the employers.  The Oklahoma Tax Commission shall forward to the State Treasurer the proceeds of the tax for deposit in the fund.  When the amount in the fund falls below Seven Hundred Fifty Thousand Dollars ($750,000.00), the tax made pursuant to this section shall be assessed until the fund contains One Million Dollars ($1,000,000.00).  The State Treasurer shall place monies in the fund in interest-bearing accounts.
F.  If an employer, who is currently approved by the Court Workers’ Compensation Commission as a self-insured or own-risk carrier, is unable to make payment of an award and judgment is rendered against such employer and execution is levied and returned unsatisfied in whole or in part, payments for such liabilities shall be made from the Individual Self-Insured Guaranty Fund.  The Administrator Commission shall proceed to recover such payments from the employer, or the employer’s receiver or trustee in bankruptcy, and may commence an action or proceeding or file a claim therefor.  The Attorney General shall appear on behalf of the Administrator Commission in any such action or proceeding.  All monies recovered in such action shall be paid into the fund.
G.  Each employer approved as an individual self-insurer or own-risk carrier shall pay into the fund a sum equal to that assessed against such employer as provided for in subsection E of this section.  When the award becomes final, the sum shall be payable regardless of whether or not the award made to the claimant is paid.
H.  In making and entering awards for compensation for permanent partial impairment, the Court shall determine and fix the amounts that shall be paid to the Tax Commission pursuant to the provisions of subsection E of this section.  The amount so determined and fixed shall have the same force and effect as an award of the Court for compensation and all provisions relating to the collection of awards of the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, shall apply to such judgments.
I.  It shall be the duty of the Oklahoma Tax Commission to collect the payments provided for in this section.  The Oklahoma Tax Commission is hereby authorized to bring an action for the recovery of any delinquent or unpaid payments required in this section.  The Oklahoma Tax Commission also may enforce payments by proceeding in accordance with Section 46 346 of this act title.
J.  The Oklahoma Tax Commission shall on or before the first day of April of each year find and determine the amount of money held as of March 1 of that year by the State Treasurer for the benefit of the Individual Self-Insured Guaranty Fund and shall on or before the first day of October of each year find and determine the amount of money held as of September 1 of that year by the State Treasurer for the benefit of the Individual Self-Insured Guaranty Fund.  Promptly after making each such determination, the Oklahoma Tax Commission shall advise the Administrator Commission in writing of its findings.
K.  Eighty percent (80%) of all sums held by the State Treasurer to the credit of the Individual Self-Insured Guaranty Fund by order of the Administrator Commission, with the approval of the Individual Self-Insured Guaranty Fund Board, may be invested in or loaned on the pledge of any of the securities in which a state bank may invest the moneys deposited therein by the State Treasurer; or may be deposited in state or national banks or trust companies upon insured time deposit bearing interest at a rate no less than currently being paid upon insured savings accounts in the institutions.  As used in this section, “insured” means insurance as provided by an agency of the federal government.  All such securities or evidence of indebtedness shall be placed in the hands of the State Treasurer, who shall be the custodian thereof, shall collect the principal and interest when due, and shall pay the same into the fund.  The State Treasurer shall pay by vouchers drawn on the Individual Self-Insured Guaranty Fund for the making of such investments, when signed by the Administrator Commission and approved by the Individual Self-Insured Guaranty Board, upon delivery of such securities or evidence of indebtedness to him or her.  The Administrator Commission, upon approval of the individual Self-Insured Guaranty Board, may sell any of such securities, the proceeds thereof to be paid over to the State Treasurer for deposit in the fund.
L.  The refund provisions of Sections 227 through 229 of Title 68 of the Oklahoma Statutes shall be applicable to any payment of assessments made to the fund when the fund has over One Million Dollars ($1,000,000.00) in it.  Refunds shall be paid from the fund.
M.  The Oklahoma Tax Commission shall pay, monthly, to the State Treasurer to the credit of the Individual Self-Insured Guaranty Fund all moneys collected under the provisions of this section.  The State Treasurer shall pay out of the Individual Self-Insured Guaranty Fund only upon the order and direction of a court of this state acting under the provisions thereof.
N.  Where If an award has been made by the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, or a payment in lieu thereof for compensable injury for a permanent partial impairment, the employer shall pay to the Tax Commission such sum as is due of which ninety-eight percent (98%) of the sum shall be paid into the fund and the remaining two percent (2%) thereof shall be paid to the Oklahoma Tax Commission not later than the fifteenth of the month following the close of the calendar quarter in which the award was made.
O.  The Board may retain an insurance carrier or approved service organization to process, investigate and pay valid claims.  The charge for such service shall be paid from the fund.
P.  The provisions of this section shall not apply to any state entity or any political subdivision of the state.
Q.  No claim or award shall be allowed against the fund unless such claim or award is made within (1) one year of the time provided in this section.
R.  Pursuant to the requirements of Section 65 365 of this act title, the Individual Self-Insured Guaranty Fund and Board shall cease to exist once the initial appointments to the Workers’ Compensation Self-Insurance Guaranty Fund Board are made as provided in Section 60 360 of this act title.
SECTION 57.     AMENDATORY     85 O.S. 2011, Section 359, is amended to read as follows:
Section 359.  A.  There is hereby created the “Group Self-Insurance Association Guaranty Fund Board”.  The Board shall have supervision over the administration and operation of the Group Self-Insurance Association Guaranty Fund.
B.  The Board shall consist of not less than three (3) nor more than nine (9) members.  Each member shall be an administrator of a Group Self-Insurance Association which has been approved by the Workers’ Compensation Court Commission as an own-risk carrier or self-insured risk.  The Board shall be appointed by the Administrator of the Workers’ Compensation Court Commission.  The initial members of the Board shall be appointed to terms of office as follows:
1.  One member shall be appointed for one (1) year;
2.  One member shall be appointed for two (2) years; and
3.  One member shall be appointed for three (3) years.
If more than three members are appointed, the fourth member shall be appointed for four (4) years and each of the others appointed shall be for terms of office in the order of their appointment of one, two, three or four years with the ninth member also serving four (4) years.  Thereafter, each person appointed shall serve for four (4) years.  Provided, board members serving on the effective date of this act October 31, 2013, shall continue to serve until expiration of their respective terms.  Members may be appointed to successive terms.
C.  The State Treasurer shall establish the Group Self-Insurance Association Guaranty Fund in the State Treasury.
D.  The monies paid into the fund, together with the interest thereon, shall constitute the Group Self-Insurance Association Guaranty Fund.
E.  Until the Group Self-Insurance Association Guaranty Fund contains One Million Dollars ($1,000,000.00), the Oklahoma Tax Commission shall assess and collect from each group self-insurance association carrying their own risk, a tax at the rate of one percent (1%) of the total compensation for permanent partial impairment awards paid out during each quarter of the calendar year by each group self-insurance association.  The Oklahoma Tax Commission shall forward to the State Treasurer the proceeds of the tax for deposit in the fund.  When the amount in the fund falls below Seven Hundred Fifty Thousand Dollars ($750,000.00), the tax made pursuant to this section shall be assessed until the fund contains One Million Dollars ($1,000,000.00).  The State Treasurer shall place monies in the fund in interest-bearing accounts.
F.  If a group self-insurance association, that is currently approved by the Court as a self-insured or own-risk carrier, is unable to make payment of an award and judgment is rendered against such group self-insurance association and execution is levied and returned unsatisfied in whole or in part, payments for such liabilities shall be made from the Group Self-Insurance Association Guaranty Fund.  The Administrator Workers’ Compensation Commission shall proceed to recover such payments from the group self-insurance association, or the group self-insurance association’s receiver or trustee in bankruptcy, and may commence an action or proceeding or file a claim therefor.  The Attorney General shall appear on behalf of the Administrator Commission in any such action or proceeding.  All monies recovered in such action shall be paid into the fund.
G.  Each group self-insurance association approved as a self-insurer or own-risk carrier shall pay into the fund a sum equal to that assessed against such group self-insurance association as provided for in subsection E of this section.  When the award becomes final, the sum shall be payable regardless of whether or not the award made to the claimant is paid.
H.  In making and entering awards for compensation for permanent partial impairment, the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, shall determine and fix the amounts that shall be paid to the Tax Commission pursuant to the provisions of subsection E of this section.  The amount so determined and fixed shall have the same force and effect as an award of the Court or Commission, as applicable, for compensation and all provisions relating to the collection of awards of the Court or Commission shall apply to such judgments.
I.  It shall be the duty of the Oklahoma Tax Commission to collect the payments provided for in this section.  The Oklahoma Tax Commission is hereby authorized to bring an action for the recovery of any delinquent or unpaid payments required in this section.
J.  The Oklahoma Tax Commission shall on or before the first day of April of each year find and determine the amount of money held as of March 1 of that year by the State Treasurer for the benefit of the Group Self-Insurance Association Guaranty Fund and shall on or before the first day of October of each year find and determine the amount of money held as of September 1 of that year by the State Treasurer for the benefit of the Group Self-Insurance Association Guaranty Fund.  Promptly after making each such determination, the Oklahoma Tax Commission shall advise the Administrator Workers’ Compensation Commission in writing of its findings.
K.  Eighty percent (80%) of all sums held by the State Treasurer to the credit of the Group Self-Insurance Association Guaranty Fund by order of the Administrator Workers’ Compensation Commission, with the approval of the Group Self-Insurance Association Guaranty Fund Board, may be invested in or loaned on the pledge of any of the securities in which a state bank may invest the moneys deposited therein by the State Treasurer; or may be deposited in state or national banks or trust companies upon insured time deposit bearing interest at a rate no less than currently being paid upon insured savings accounts in the institutions.  As used in this section, “insured” means insurance as provided by an agency of the federal government.  All such securities or evidence of indebtedness shall be placed in the hands of the State Treasurer, who shall be the custodian thereof, who shall collect the principal and interest when due, and pay the same into the fund.  The State Treasurer shall pay by vouchers drawn on the Group Self-Insurance Association Guaranty Fund for the making of such investments, when signed by the Administrator Commission and approved by the Group Self-Insurance Association Guaranty Board, upon delivery or evidence of indebtedness to him or her.  The Administrator Commission, upon approval of the Group Self-Insurance Association Guaranty Board, may sell any of such securities, the proceeds thereof to be paid over to the State Treasurer for deposit in the fund.
L.  The refund provisions of Sections 227 through 229 of Title 68 of the Oklahoma Statutes shall be applicable to any payment of assessments made to the fund when the fund has over One Million Dollars ($1,000,000.00) in it.  Refunds shall be paid from the fund.
M.  The Oklahoma Tax Commission shall pay, monthly, to the State Treasurer to the credit of the Group Self-Insurance Association Guaranty Fund all moneys collected under the provisions of this section.  The State Treasurer shall pay out of the Group Self-Insurance Association Guaranty Fund only upon the order and direction of a court of this state acting under the provisions thereof.
N.  Where If an award has been made by the Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, or a payment in lieu thereof for compensable injury for a permanent partial impairment, the employer shall pay to the Tax Commission such sum as is due of which ninety-eight percent (98%) of the sum shall be paid into the fund and the remaining two percent (2%) thereof shall be paid to the Oklahoma Tax Commission not later than the fifteenth of the month following the close of the calendar quarter in which the award was made.
O.  The Board may retain an insurance carrier or approved service organization to process, investigate and pay valid claims.  The charge for such service shall be paid from the fund.
P.  The provisions of this section shall not apply to any group self-insurance association consisting of state entities or of any political subdivisions of the state.
Q.  No claim or award shall be allowed against the fund unless such claim or award is made within one (1) year of the time provided in subsection F of this section.
R.  Pursuant to the requirements of Section 65 365 of this act title, the Group Self-Insurance Association Guaranty Fund and Board shall cease to exist once the initial appointments to the Workers’ Compensation Self-Insurance Guaranty Fund Board are made as provided in Section 60 360 of this act title.
SECTION 58.     AMENDATORY     85 O.S. 2011, Section 360, is amended to read as follows:
Section 360.  A.  There is hereby created in the State Treasury the “Workers’ Compensation Self-Insurance Guaranty Fund” to be administered, supervised and protected by the Workers’ Compensation Self-Insurance Guaranty Fund Board.  All self-insurers under the Workers’ Compensation Code shall participate in the fund as a condition of authority to self-insure in this state, except public employers that self-insure pursuant to Section 13 313 of this act title.
B.  1.  The Workers’ Compensation Self-Insurance Guaranty Fund Board shall consist of five (5) members to be appointed as follows:
a.	the Governor shall appoint two members, one of whom shall represent a private self-insurer, and one of whom shall represent an approved group self-insurance association authorized to self-insure pursuant to Section 51 351 of this act title or Section 398 of this title,
b.	the President Pro Tempore of the Senate shall appoint one member who shall be an attorney licensed in this state who is engaged in the primary practice of workers’ compensation law,
c.	the Speaker of the House of Representatives shall appoint one member who represents a private self-insurer, and
d.	the Workers’ Compensation Court Administrator Commission shall appoint one member who shall be a licensed claims adjuster affiliated with either a private self-insurer or an approved group self-insurance association.
2.  The term of office for initial appointees shall be as follows:
a.	the term of office for three positions, one each appointed by the Governor, the President Pro Tempore of the Senate and Speaker of the House of Representatives, shall expire on November 1, 2014, and
b.	the term of office for two positions, one each appointed by the Governor and the Workers’ Compensation Court Administrator, shall expire on November 1, 2013; provided thereafter, the Commission shall appoint the successor for the appointee initially appointed by the Administrator.
Thereafter, successors in office shall be appointed for a three-year term.  Members may succeed themselves in office.  Any person appointed to fill a vacancy shall be appointed for the unexpired portion of the term in the same manner as the original appointment.
3.  The chair and vice chair of the Board shall be elected by the Board from among its members.
4.  Members of the Board shall receive no compensation for serving on the Board but shall be reimbursed from monies in the fund for their necessary travel expenses incurred in the performance of their duties in accordance with the State Travel Reimbursement Act.
C.  Meetings of the Board shall be held at least quarterly.  The presence of a simple majority of the members constitutes a quorum.  No action shall be taken by the Board without the affirmative vote of at least a simple majority of the members.
D.  The Office of the Attorney General shall provide legal counsel to assist the Board in the performance of its duties.
SECTION 59.     AMENDATORY     85 O.S. 2011, Section 362, is amended to read as follows:
Section 362.  The Workers’ Compensation Self-Insurance Guaranty Fund shall be derived from the following sources:
1.  Any unexpended funds, including interest thereon, held by the State Treasurer in the Individual Self-Insured Guaranty Fund or Group Self-Insurance Association Guaranty Fund transferred to the Workers’ Compensation Self-Insurance Guaranty Fund pursuant to Section 65 365 of this act title;
2.  Until the Workers’ Compensation Self-Insurance Guaranty Fund contains Two Million Dollars ($2,000,000.00) or in the event the amount in the fund falls below One Million Dollars ($1,000,000.00), an assessment against each private self-insurer and group self-insurance association based on an assessment rate to be determined by the Court Administrator Workers’ Compensation Commission, not exceeding one percent (1%) of actual paid losses of the self-insurer during the preceding calendar year, payable to the Oklahoma Tax Commission for deposit to the fund.  The assessment against private self-insurers shall be determined using a rate equal to the proportion that the deficiency in the fund attributable to private self-insurers bears to the actual paid losses of all private self-insurers for the year period of January 1 through December 31 preceding the assessment.  The assessment against group self-insurance associations shall be determined using a rate equal to the proportion that the deficiency in excess of the surplus of the Group Self-Insurance Association Guaranty Fund at the date of the transfer attributable to group self-insurance associations bears to the actual paid losses of all group self-insurance associations cumulatively for any calendar year preceding the assessment.  Each self-insurer shall provide the Administrator Workers’ Compensation Commission with such information as the Administrator Commission may determine is necessary to effectuate the purposes of this paragraph.  For purposes of this paragraph, “actual paid losses” means all medical and indemnity payments, including temporary disability, permanent disability, and death benefits, and excluding loss adjustment expenses and reserves.
a.	The assessment shall be paid within thirty (30) calendar days after the date the Administrator of the Workers’ Compensation Court Commission notifies the self-insurer of the assessment.
b.	A private employer or group self-insurance association which ceases to be a self-insurer shall remain liable for any and all assessments of the self-insurer as provided in this paragraph based on actual paid losses for the calendar year period preceding the assessment.
c.	Failure of a self-insurer to pay, or timely pay, an assessment required by this paragraph, or to report payment of the same to the Administrator Commission within ten (10) days of payment, shall be grounds for revocation by the Administrator Commission of the self-insurer’s permit to self-insure in this state, after notice and hearing.  A former self-insurer failing to make payments required by this paragraph promptly and correctly, or failing to report payment of the same to the Administrator Commission within ten (10) days of payment, shall be subject to administrative penalties as allowed by law, including, but not limited to, a fine in the amount of Five Hundred Dollars ($500.00) or an amount equal to one percent (1%) of the unpaid amount, whichever is greater, to be paid to the Administrator Commission for deposit to the credit of the Administrator of Workers’ Compensation Commission Revolving Fund created in Section 70 370 of this act title.  It shall be the duty of the Oklahoma Tax Commission to collect the assessment provided for in this paragraph.  The Tax Commission is authorized to bring an action for recovery of any delinquent or unpaid assessments.  The Tax Commission also may enforce payment of the assessment by proceeding in accordance with Section 46 346 of this act title.
d.	An impaired self-insurer shall be exempt from assessments beginning on the date of the Administrator’s Commission’s designation until the Administrator Commission determines the self-insurer is no longer impaired.
e.	The Tax Commission shall determine the fund balance as of March 1 and September 1 of each year, and when otherwise requested by the Administrator Commission, and shall advise the Administrator Commission thereof in writing within thirty (30) days of each such determination; and
3.  Any interest accruing on monies paid into the fund.
SECTION 60.     AMENDATORY     85 O.S. 2011, Section 363, is amended to read as follows:
Section 363.  On determination by the Workers’ Compensation Court Administrator Commission that a self-insurer has become an impaired self-insurer, the Administrator Commission shall secure release of the security deposit required by Section 51 351 of this act title and advise the Workers’ Compensation Self-Insurance Guaranty Fund Board of the impairment.  Claims administration, including processing, investigating and paying valid claims against an impaired self-insurer pursuant to the Workers’ Compensation Code, may include payment by the surety that issued the surety bond or be pursuant to a contract between the Administrator Commission and an insurance carrier, appropriate state governmental entity or an approved service organization, as approved by the Administrator Commission.
SECTION 61.     AMENDATORY     85 O.S. 2011, Section 366, is amended to read as follows:
Section 366.  No member or personnel of the Workers’ Compensation Self-Insurance Guaranty Fund Board, member of the Workers’ Compensation Court Administrator Commission, or any employee of the Workers’ Compensation Commission or Court of Existing Claims shall be liable in a civil proceeding for any act performed in good faith in the execution of that person’s powers or duties pursuant to Sections 60 360 through 65 365 of this act title.
SECTION 62.     AMENDATORY     85 O.S. 2011, Section 367, is amended to read as follows:
Section 367.  A.  Annually, on or before the first day of July, the Administrator of the Workers’ Compensation Court Commission shall prepare, make public and submit a report for the prior calendar year to the Governor, the Chief Justice of the Supreme Court, the President Pro Tempore of the Senate, the Speaker of the House of Representatives and each member of the Legislature, which shall include a statement of the number of awards made and the causes of the accidents leading to the injuries for which the awards were made, total work load data of the Workers’ Compensation Commission and the Court of Existing Claims, a detailed report of the work load of and orders written by each judge of the Court of Existing Claims and by the Commission, a detailed statement of the expenses of the office of the Administrator Commission and the Court, together with any other matter which the Administrator Commission deems proper to report to the Governor, including any recommendations the Administrator Commission may desire to make.
B.  After public hearing and consultation with representatives of employers, insurance carriers, and employees, the Administrator of the Workers’ Compensation Court shall implement, with the assistance of the Insurance Commissioner, by July 1, 2012, an electronic data interchange (EDI) system that provides relevant data concerning the Oklahoma workers’ compensation system and the delivery of benefits to injured workers; provided, beginning November 1, 2013, it shall be the responsibility of the Commission to implement and maintain the EDI system.
C.  To assist the Administrator, and thereafter the Commission,  in developing and implementing the EDI system, there is hereby created the Oklahoma Workers’ Compensation Electronic Data Interchange Advisory Committee.  Within thirty (30) days of the effective date of this act By September 25, 2011, the Governor shall appoint five persons to serve as members of the advisory committee, one of whom shall be selected by the Governor as chair.  The Administrator chair of the Commission and Insurance Commissioner shall be nonvoting members of the advisory committee.  The Administrator Commission shall provide adequate notice of meetings of the advisory committee and public hearings as required by law.
SECTION 63.     AMENDATORY     85 O.S. 2011, Section 368, is amended to read as follows:
Section 368.  A.  A fee of One Hundred Forty Dollars ($140.00) per case, including any Compromise Settlement authorized by Section 39 339 of this act title, shall be collected by the Administrator of the Workers’ Compensation Court Commission and taxed as costs to be paid by the party against whom any award becomes final, to be deposited as follows:
1.  One Hundred Five Dollars ($105.00) to the credit of the Administrator of Workers’ Compensation Commission Revolving Fund created by Section 70 370 of this act title;
2.  Ten Dollars ($10.00) to the credit of the Attorney General’s Workers’ Compensation Fraud Unit Revolving Fund created by Section 19.2 of Title 74 of the Oklahoma Statutes; and
3.  Twenty-five Dollars ($25.00) to the credit of the Administrator of Workers’ Compensation Commission Revolving Fund for purposes of implementing the provisions of this act the Workers’ Compensation Code, including strengthening and providing additional funding for the Attorney General’s Workers’ Compensation Fraud Unit, providing counseling services pursuant to the workers’ compensation counselor or ombudsman program and safety in the workplace.
B.  A fee of One Hundred Thirty Dollars ($130.00) per action to reopen any case pursuant to Section 18 318 of this act title shall be collected by the Administrator Commissioner and taxed as costs to be paid by the party that reopens the case.  The fee collected pursuant to this subsection shall be deposited to the credit of the Administrator of Workers’ Compensation Commission Revolving Fund for purposes of implementing the provisions of this act the Workers’ Compensation Code, including strengthening and providing additional funding for the Attorney General’s Workers’ Compensation Fraud Unit, providing counseling services pursuant to the workers’ compensation counselor or ombudsman program and safety in the workplace.
SECTION 64.     AMENDATORY     85 O.S. 2011, Section 369, is amended to read as follows:
Section 369.  A.  All group self-insureds allowed pursuant to the provisions of Section 398 of this title shall pay an annual application fee of One Thousand Dollars ($1,000.00) to the Administrator of the Workers’ Compensation Court Commission.
B.  All individual own-risk or self-insured risk employers shall pay an annual application fee of One Thousand Dollars ($1,000.00) to the Administrator Commission.
C.  All court-approved servicing companies shall pay an annual application fee of One Thousand Dollars ($1,000.00) to the Administrator Commission.
D.  Each individual own-risk or self-insured risk employer whose financial statements or loss runs, or both, are subject to interim review by Workers’ Compensation Court Commission personnel shall pay an additional fee to the Administrator Commission of Five Hundred Dollars ($500.00) per review, not to exceed One Thousand Dollars ($1,000.00) per state fiscal year.
E.  All fees collected pursuant to the provisions of this section shall be deposited to the credit of the Administrator of Workers’ Compensation Commission Revolving Fund.
SECTION 65.     AMENDATORY     85 O.S. 2011, Section 370, as amended by Section 1077, Chapter 304, O.S.L. 2012 (85 O.S. Supp. 2012, Section 370), is amended to read as follows:
Section 370.  A.  Persons requesting and receiving copies of documents on file with the Administrator of the Workers’ Compensation Court Commission shall pay a fee to the Administrator Commission of One Dollar ($1.00) for each page copied.  All fees so collected shall be deposited in the State Treasury in a revolving fund to be designated the “Administrator of Workers’ Compensation Commission Revolving Fund”.  The fund created in this section shall be a continuing fund not subject to fiscal year limitations.  Monies accruing to the credit of the fund may be expended in the manner prescribed by law in defraying necessary expenses in carrying out the provisions of this act the Workers’ Compensation Code and without legislative appropriation.  Expenditures from the fund shall be made upon warrants issued by the State Treasurer against claims as prescribed by law with the Director of the Office of Management and Enterprise Services for approval and payment.
B.  All penalties and fines imposed by the Workers’ Compensation Commission and the Court or Administrator of Existing Claims, upon collection, shall be deposited to the credit of the Administrator of Workers’ Compensation Commission Revolving Fund.
SECTION 66.     AMENDATORY     85 O.S. 2011, Section 371, is amended to read as follows:
Section 371.  A.  Every employer shall furnish the Administrator of the Workers’ Compensation Court Commission, upon request, any information required by the Administrator Commission to carry out the provisions of the Workers’ Compensation Code.
B.  All books, records and payrolls of the employers showing or reflecting in any way upon the amount of wage expenditures of such employers shall always be open for inspection by the Administrator Commission or any other authorized auditors, accountants, or inspector for the purpose of ascertaining the correctness of the wage expenditure and number of employees and such other information as may be necessary for the purposes and uses of the Administrator Commission in the administration of the Workers’ Compensation Code.  No person shall be excused from testifying or from producing any books or papers or documents in any investigation or inquiry, by or upon any hearing before the Workers’ Compensation Commission or the Court of Existing Claims, when ordered to do so by the Commission or the Court, upon the ground that the testimony or payroll or other competent evidence required of the person may tend to incriminate or subject the person to penalty or forfeiture; but no person shall be prosecuted, punished or subjected to any penalty or forfeiture for or on account of any act, transaction, matter or thing concerning which the person shall under oath, have, by order of the Commission or the Court, testified to or produced documentary evidence of; provided however, that no person so testifying shall be exempt from prosecution or punishment for any perjury committed by the person in the person’s testimony.
SECTION 67.     AMENDATORY     85 O.S. 2011, Section 372, is amended to read as follows:
Section 372.  A.  Except as otherwise provided by state or federal law and subject to the provisions of this section, an employer may inquire about previous workers’ compensation claims paid to an employee while the employee was employed by a previous employer.  If the employee fails to answer truthfully about any previous permanent partial impairment awards made pursuant to workers’ compensation claims, the employee shall be subject to discharge by the employer.
B.  1.  All requests made to the Workers’ Compensation Commission or Court of Existing Claims for information on prior workers’ compensation claims involving a worker, including written inquiries about prior claims and requests to access a worker’s compensation claim file, must be in writing, on a form prescribed by the Administrator Commission, and accompanied by a fee of One Dollar ($1.00) per search request, not to exceed One Dollar ($1.00) per claims record of a particular worker.  The fee shall be deposited to the credit of the Administrator of Workers’ Compensation Commission Revolving Fund.  The form shall require identification of the person requesting the information, and the person for whom a search is being made if different from the requester.  The form must contain an affidavit signed by the requester under penalty of perjury that the information sought is not requested for a purpose in violation of state or federal law.  The form must be used by all repositories of archived Court claim files.  All request forms shall be maintained by the Administrator Commission as a public record, together with a record of a worker’s written authorization permitting a search indexed by the worker’s social security number as required by Section 3113 of Title 74 of the Oklahoma Statutes.  The request forms and authorizations shall be indexed alphabetically by the last name of the worker.
2.  This subsection shall not apply:
a.	to requests for claims information made by a public officer or by a public employee in the performance of his or her duties on behalf of a governmental entity or as may be allowed by law,
b.	to requests for claims information made by an insurer, self-insured employer, third-party claims administrator, or a legal representative thereof, when necessary to process or defend a worker’s compensation claim,
c.	when a worker or the worker’s representative requests review of the worker’s claims information,
d.	when the disclosure is made for educational or research purposes and in such a manner that the disclosed information cannot be used to identify any worker who is the subject of a claim,
e.	to requests for claims information made by a health care or rehabilitation provider or the provider’s legal representative when necessary to process payment of health care or rehabilitation services rendered to a worker, and
f.	to requests for claim information made by an employer or personnel service company, including but not limited to an individual or entity, where the worker executes a written authorization permitting the search and designating the employer or personnel service company as the worker’s representative for that purpose; however, nothing in this subparagraph shall relieve the employer or personnel service company from complying with the requirements of utilizing the form set forth in paragraph 1 of this subsection.
C.  The Administrator of the Workers’ Compensation Court shall implement by January 1, 2012, a system which publishes on the internet under the name of the Oklahoma Workers Compensation Court the names of all claimants who have filed a workers compensation claim in the preceding ten (10) years; provided, beginning November 1, 2013, the Workers’ Compensation Commission shall be responsible for maintaining the internet system and shall publish the names of all claimants who have filed workers’ compensation claims within the preceding ten (10) years, whether the claims were under the jurisdiction of the Oklahoma Workers’ Compensation Court, the Workers’ Compensation Commission, or the Court of Existing Claims.  This internet posting shall annually be updated by the Workers’ Compensation Commission and also notify the public of the services available by the workers compensation court listed under this section.
SECTION 68.     AMENDATORY     85 O.S. 2011, Section 373, is amended to read as follows:
Section 373.  A.  There is hereby created a Physician Advisory Committee comprised of nine (9) members to be appointed as follows:
1.  The Governor shall appoint three members, one of whom shall be licensed in this state as a doctor of medicine and surgery, one of whom shall be engaged in the practice of family medicine in a rural community of the state, and one of whom shall be an osteopathic physician;
2.  The President Pro Tempore of the Senate shall appoint three members, one of whom shall be licensed in this state as a doctor of medicine and orthopedic surgery, one of whom shall be licensed in this state either as a doctor of medicine or a doctor of osteopathy and a neurosurgeon, and one of whom shall be licensed in this state as a podiatric physician; and
3.  The Speaker of the House of Representatives shall appoint three members, one of whom shall be licensed in this state as an osteopathic physician, one of whom shall be licensed in this state either as a doctor of medicine or a doctor of osteopathy and shall be engaged in the practice of occupational medicine, and one of whom shall be licensed in this state as a chiropractic physician.
The terms of members serving on the effective date of this act August 26, 2011, shall end on the effective date of this act August 26, 2011.  Thereafter, each position will be filled by the appointing official for a term of three (3) years.  Members shall be subject to reappointment, with any new appointee to serve out the remainder of the unexpired term of the Committee member so replaced.
B.  The Committee shall:
1.  Assist and advise the Administrator of the Workers’ Compensation Court of Existing Claims and the Workers’ Compensation Commission regarding utilization review as it relates to the medical practice and treatment of work-related injuries.  Such utilization review shall include a review of reasonable and necessary medical treatment; abusive practices; needless treatments, testing, or procedures; or a pattern of billing in excess of or in violation of the Schedule of Medical Fees.  The Physician Advisory Committee shall review and make findings and recommendations to the Administrator with respect to charges of inappropriate or unnecessary treatment or procedures, abusive practices, or excessive billing disclosed through utilization review;
2.  Assist the Administrator, the Workers’ Compensation Commission and the Chief Medical Officer in reviewing medical practices of health care providers, including evaluations of permanent impairment provided by health care providers.  The Committee shall review and make findings and recommendations to the Administrator and Commission with respect to charges of abusive practices by health care providers providing medical services or evaluations of permanent impairment through the workers’ compensation system;
3.  After public hearing, review and make recommendations for acceptable deviations from the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”;
4.  After public hearing, review and make recommendations to the Administrator or an alternative method or system to evaluate permanent impairment that shall be used in place of or in combination with the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”.  Appropriate and scientific data shall be considered Ensure that appropriate medical treatment guidelines are recommended to the Chief Medical Officer for adoption and use in all workers’ compensation claims.
a.	As used in this section, medical treatment that is reasonably required to be proper and necessary for the injured worker from the effects of the worker’s injury means treatment that is based upon the guidelines adopted by the Chief Medical Officer.  For all injuries not covered by the Chief Medical Officer’s medical treatment guidelines, authorized treatment shall be in accordance with other evidence-based medical treatment guidelines that are recognized generally by the national medical community and scientifically based, as noted in this section.
b.	The recommended guidelines pursuant to subparagraph a of this paragraph shall reflect practices that are evidence-based and scientifically based, nationally recognized, or state developed.  The guidelines shall be designed to assist providers by offering an analytical framework for the evaluation and treatment of injured workers, and shall constitute care for all injured workers diagnosed with work-related injuries or illnesses. 
c.	A treating physician may provide medical treatment that is outside of the treatment recommended by the treatment guidelines if the medical treatment is reasonably required and necessary to relieve or cure the individual patient.  Prior authorization from the insurer shall be required in order to be reimbursed for treatment outside of that which is recommended by the treatment guidelines.
d.	If the Chief Medical Officer awards payment of medical treatment outside that which is recommended by the treatment guidelines then the order shall explain why the medical treatment was reasonably required and necessary to relieve or cure the individual patient;
5.  After public hearing, adopt Oklahoma Treatment Guidelines and protocols for medical treatment not addressed by the current edition of the Official Disability Guidelines or addressed but not recommended in the ODG section in regard to injuries to the cervical, thoracic, and lumbar spine.  The Oklahoma Treatment Guidelines shall be adopted on or before March 1, 2012, and shall remain in full force and effect until superseded.
a.	The OTG shall be based upon evidence based medicine and scientifically based and nationally peer reviewed literature and shall include treatment for the top fifteen (15) medically-recognized conditions (ICD-9 or successor codes).
b.	When completed, the OTG shall be submitted to the Oklahoma Workers’ Compensation Advisory Council for review.  After due notice and public hearing, the Council shall issue a report to the Administrator concerning the OTG submitted.  After due notice and public hearing, the Administrator shall adopt or reject the proposal submitted.  The OTG shall be submitted by the Administrator to the Governor, the Speaker of the House of Representatives and the President Pro Tempore of the Senate within ten (10) legislative days following adoption.  The OTG submitted shall be subject to disapproval by joint or concurrent resolution of the Legislature during the legislative session in which submitted.  If disapproved, the existing treatment guidelines shall continue in effect.  If the Legislature takes no action on the OTG submitted by the Administrator, the OTG shall become operative thirty (30) days following the adjournment of the Legislature;
6.  After public hearing, adopt Oklahoma Treatment Guidelines for the prescription and dispensing of any controlled substance included in Schedule II of the Uniform Controlled Dangerous Substances Act if not addressed by the current edition of the Official Disability Guidelines;
7. 6.  Review utilization on cases or of providers when requested by any employer, injured employee or insurer.  The Committee may issue a public or private censure to any provider for utilization which is excessive or inadequate, or recommend the Workers’ Compensation Commission or the Court of Existing Claims order treatment within the treatment guidelines;
8. 7.  Provide general recommendations to the Workers’ Compensation Commission or the judges of the Court of Existing Claims on the issues of injury causation and apportionment;
9. 8.  Conduct educational seminars for the benefit review officers, arbitrators, and case hearing officers of the Workers’ Compensation Commission and the judges of the Court of Existing Claims, employers, employees, and other interested parties;
10. 9.  Assist the benefit review officers, arbitrators, and case hearing officers of the Workers’ Compensation Commission and the judges of the Court of Existing Claims in accessing medical information from scientific literature; and
11. 10.  Report its progress annually to the Governor, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives.
C.  As used in this section:
1.  “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;
2.  “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;
3.  “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-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review;
4.  “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; and
5.  “State-developed” includes formalized treatment guidelines developed and adopted by state governments.
D.  The Commission and the Court of Existing Claims shall be bound by treatment guidelines of the latest edition of the Official Disability Guidelines or the Oklahoma Treatment Guidelines.
D. E.  Members of the Physician Advisory Committee shall receive no compensation for serving on the Committee but shall be reimbursed by the Court for their necessary travel expenses incurred in the performance of their duties in accordance with the State Travel Reimbursement Act.
E. F.  Meetings of the Physician Advisory Committee shall be called by the Administrator Commission but held at least quarterly.  The presence of a simple majority of the members constitutes a quorum.  No action shall be taken by the Physician Advisory Committee without the affirmative vote of at least a simple majority of the members.
F. G.  The Administrator Commission shall provide office supplies and personnel of the Court to assist the Committee in the performance of its duties.
G. H.  Upon written request, the Insurance Commissioner, CompSource Oklahoma, and every approved self-insured employer in Oklahoma shall provide the Committee with data necessary to the performance of its duties.
H. I.  Any health care provider acting in good faith and within the scope of the provider’s duties as a member of the Physician Advisory Committee shall be immune from civil liability for making any report or other information available to the Workers’ Compensation Commission, the judges of the Court of Existing Claims or to the Administrator or for assisting in the origination, investigation, or preparation of the report or other information so provided.
SECTION 69.     AMENDATORY     85 O.S. 2011, Section 374, is amended to read as follows:
Section 374.  A.  There is hereby created an Advisory Council on Workers’ Compensation.
B.  The Beginning November 1, 2013, the voting membership of the Advisory Council shall consist of nine (9) seven (7) members.  Any member serving on the effective date of this act shall serve the remainder of his or her term.  The Administrator of the Workers’ Compensation Court and presiding judge of Existing Claims and the chair of the Workers’ Compensation Court Commission shall be ex officio nonvoting members.
1.  The Governor shall appoint three (3) two members, one representing employers in this state, and one of whom shall be from a list of nominees provided by the predominant statewide broad-based business organization representing employees of this state;
2.  The Speaker of the House of Representatives shall appoint three (3) two members, one representing employers of this state and one representing employees in this state, one of whom shall be from a list of nominees provided by the most representative labor organization in the state; and
3.  The President Pro Tempore of the Senate shall appoint three (3) members, two who are attorneys representing the legal profession in this state, one of whom shall be an attorney who practices primarily in the area of defense of workers’ compensation claims, one of whom shall be an attorney who primarily represents claimants, and a medical doctor or doctor of osteopathy actively engaged in the treatment of injured workers two members, one representing employers of this state and one representing employees of this state.
4.  The six members of the Advisory Council so appointed shall select a seventh member who shall serve as Chair.
5.  No attorneys, employees of law firms or insurance companies, physicians, or employees of workers’ compensation medical providers shall be appointed or selected to serve on the Advisory Council.
C.  The term of office for appointees shall be as follows:
1.  The term of office for three positions, one each appointed by the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives shall expire on March 1, 2012;
2.  The term of office for three positions, one each appointed by the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives shall expire on March 1, 2013; and
3.  The term of office for three positions, one each appointed by the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives shall expire on March 1, 2014.
D.  Thereafter, All members of the Advisory Council and their successors in office shall be appointed for a three-year term.  Members shall be eligible to succeed themselves in office.
E. 2.  Any person appointed to fill a vacancy shall be appointed for the unexpired portion of the term.
F.  The chair and the vice chair of the Advisory Council shall be appointed by the Governor.
G. D.  Members shall receive their traveling and other necessary expenses incurred in the performance of their duties as provided in the State Travel Reimbursement Act.
H. E.  Meetings of the Advisory Council shall be quarterly or as called by the chair or upon petition by a majority of the voting members.  The presence of five (5) four voting members constitutes a quorum.  No action shall be taken by the Advisory Council without the affirmative vote of at least five (5) four members.
I. F.  The Administrator Commission shall provide office supplies and personnel of the Court to carry out any of the duties that have been entrusted to the Advisory Council.
J. G.  The Advisory Council shall analyze and review the workers’ compensation system, the reports of the Administrator and the Commission, and trends in the field of workers’ compensation.  The Advisory Council may recommend improvements and proper responses to developing trends.  The Advisory Council shall report its findings annually to the Governor, the Chief Justice of the Supreme Court, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives.
K. H.  In addition to other duties required by this section, the Advisory Council shall consult with the Court Commission and Chief Medical Officer regarding oversight of independent medical examiners as provided in Section 29 of this act medical impairment rating physicians.
L. I.  The Advisory Council shall review the Oklahoma Treatment Guidelines as provided in the Workers’ Compensation Code, and report the findings of such review to the Administrator Commission as provided in the Workers’ Compensation Code.
SECTION 70.     AMENDATORY     85 O.S. 2011, Section 398, is amended to read as follows:
Section 398.  A.  The Workers’ Compensation Court Commission shall adopt rules permitting two or more employers not otherwise subject to the provisions of Section 2b 313 of this title to pool together liabilities under this act the Workers’ Compensation Code for the purpose of qualifying as a group self-insurer and each such employer shall be classified as a self-insurer.
B.  The Court Commission shall approve the distribution of all undistributed policyholders’ surplus of a Workers’ Compensation Self-Insurance Program if the Program complies with the following criteria:
1.  Has been in business for at least five (5) years;
2.  Has its financial statements audited by a public accounting firm which audits at least one corporate client which has assets in excess of One Billion Dollars ($1,000,000,000.00) and on which the accounting firm has issued an unqualified opinion as to the fair presentation of the financial position of the Program showing adequate solvency and reserves; and
3.  Is in compliance with the provisions of this title and all other regulations rules as required by the Court Commission.
C.  A group self-insurer created pursuant to this section either prior to or after the effective date of this act August 26, 2011, shall not be subject to the provisions of the Oklahoma Securities Act.
SECTION 71.     AMENDATORY     85 O.S. 2011, Section 399, is amended to read as follows:
Section 399.  The Workers’ Compensation Court Commission shall adopt rules permitting two or more group self-insurance associations to pool their liabilities under this act the Workers’ Compensation Code for the purpose of providing such group self-insurance associations specific and aggregate excess insurance.
SECTION 72.     AMENDATORY     85 O.S. 2011, Section 402, is amended to read as follows:
Section 402.  A.  For the purposes of Sections 75 402 through 79 406 of this act title, the term “physically impaired person” means a person who, as a result of accident, disease, birth, military action, or any other cause, has suffered:
1.  The loss of the sight of one eye;
2.  The loss by amputation of the whole or a part of a member of the body;
3.  The loss of use or partial loss of use of a member such as is obvious and apparent from observation or examination by a person who is not skilled in the medical profession;
4.  Any previous adjudications of disability adjudged and determined by the Workers’ Compensation Court, the Court of Existing Claims, or the Workers’ Compensation Commission, or any disability resulting from separately adjudicated injuries and adjudicated occupational diseases even though arising at the same time.  Provided, that any adjudication of preexisting disability to a part of the body shall not be combinable for purposes of the Multiple Injury Trust Fund unless that part of the body was deemed to have been injured in the claim being adjudicated.
B.  This section shall apply to all adjudications of Multiple Injury Trust Fund claims heard by the Court on or after the effective date of this act August 26, 2011.
SECTION 73.     AMENDATORY     85 O.S. 2011, Section 403, as amended by Section 1082, Chapter 304, O.S.L. 2012 (85 O.S. Supp. 2012, Section 403), is amended to read as follows:
Section 403.  A.  There is hereby created, for the purposes declared in this act, the “Multiple Injury Trust Fund” to be derived from the following sources:
1.  As soon as practicable after January 1 of each year, the Administrator of the Workers’ Compensation Court Commission shall establish an assessment rate applicable to each mutual or interinsurance association, stock company, CompSource Oklahoma, or other insurance carrier writing workers’ compensation insurance in this state, each employer carrying its own risk, and each group self-insurance association, for amounts for purposes of computing the assessment authorized by this section necessary to pay the annual obligations of the Multiple Injury Trust Fund determined on or before December 31 of each year by the Board of Managers of CompSource Oklahoma to be outstanding for the next calendar year, and to pay the allocations provided for in subsection I of this section.  The rate shall be equal for all parties required to pay the assessment.  The rate in effect on the effective date of this act shall remain effective through June 30, 2012;
2.  The Oklahoma Tax Commission shall assess and collect from any uninsured employer a temporary assessment at the rate of five percent (5%) of the total compensation for permanent total disability awards, permanent partial impairment awards, and death benefits paid out during each quarter of the calendar year by the employers;
3.  The assessments shall be paid to the Tax Commission.  Insurance carriers, self-insurers, group self-insurance associations and CompSource Oklahoma shall pay the assessment in four equal installments not later than the fifteenth day of the month following the close of each quarter of the calendar year of the assessment.  Assessments shall be determined based upon gross direct written premiums, normal premiums or actual paid losses of the paying party, as applicable, during the calendar quarter for which the assessment is due.  Uninsured employers shall pay the assessment not later than the fifteenth day of the month following the close of each quarter of the calendar year of the assessment.  For purposes of this section, “uninsured employer” means an employer required by law to carry workers’ compensation insurance but who has failed or neglected to do so.  Only one-third (1/3) of assessments against insurance carriers and CompSource Oklahoma may be charged to policyholders and shall not be considered in determining whether any rate is excessive.  The remaining two-thirds (2/3) of assessments against insurance carriers and CompSource Oklahoma may not be included in any rate, premium, charge, fee, assessment or other amount to be collected from a policyholder.  Insurance carriers and CompSource Oklahoma shall not separately state the amount of the assessment on any invoice or billing assessment.
a.	The assessment authorized in this section shall be determined using a rate equal to the proportion that the sum of the outstanding obligations of the Multiple Injury Trust Fund as determined pursuant to paragraph 1 of this subsection and the allocations provided for in subsection I of this section bear to the combined gross direct written premiums of all such insurers; all actual paid losses of all individual self-insureds; and the normal premium of all group self-insurance associations, for the year period from January 1 to December 31 preceding the assessment.
b.	For purposes of this subsection:
(1)	“actual paid losses” means all medical and indemnity payments, including temporary disability, permanent disability, and death benefits, and excluding loss adjustment expenses and reserves, and
(2)	“normal premium” means a standard premium less any discounts;
4.  By April 15 of each year, the Insurance Commissioner, Board of Managers of CompSource Oklahoma and each individual and group self-insured shall provide the Administrator Workers’ Compensation Commission with such information as the Administrator Workers’ Compensation Commission may determine is necessary to effectuate the purposes of this section;
5.  Each mutual or interinsurance association, stock company, CompSource Oklahoma, or other insurance carrier writing workers’ compensation insurance in this state, and each employer carrying its own risk, including each group self-insurance association, shall be notified by the Administrator Commission in writing of the rate for the assessment on or before May 1 of each year in which a rate is determined.  The rate determined by the Administrator Commission shall be in effect for four calendar quarters beginning July 1 following determination by the Administrator Commission;
6.	a.	No mutual or interinsurance association, stock company, CompSource Oklahoma, or other insurance carrier writing workers’ compensation insurance in this state, may be assessed in any year an amount greater than six percent (6%) of the gross direct written premiums of that insurer.
b.	No employer carrying its own risk may be assessed in any year an amount greater than six percent (6%) of the total actual paid losses of that individual self-insured.
c.	No group self-insurance association may be assessed in any year an amount greater than six percent (6%) of the normal premium of that group self-insurance association.
d.	If the maximum assessment does not provide in any one year an amount sufficient to make all necessary payments for obligations of the Multiple Injury Trust Fund and for the allocations provided for in subsection I of this section, the unpaid portion shall be paid as soon thereafter as funds become available.
B.  The Multiple Injury Trust Fund is hereby authorized to receive and expend monies appropriated by the Legislature.
C.  It shall be the duty of the Tax Commission to collect the payments provided for in this act section.  The Tax Commission is hereby authorized to bring an action for the recovery of any delinquent or unpaid payments required in this section.
D.  Any mutual or interinsurance association, stock company, or other insurance company, which is subject to regulation by the Insurance Commissioner, or CompSource Oklahoma, failing to make payments required in this act promptly and correctly, and failing to report payment of the same to the Insurance Commission within ten (10) days of payment shall be subject to administrative penalties as allowed by law, including but not limited to a fine in the amount of Five Hundred Dollars ($500.00) or an amount equal to one percent (1%) of the unpaid amount, whichever is greater, to be paid to the Insurance Commissioner.
E.  Any employer carrying its own risk, or group self-insurance association failing to make payments required in this act section promptly and correctly, and failing to report payment of the same to the Administrator Commission within ten (10) days of payment shall be subject to administrative penalties as allowed by law, including but not limited to a fine in the amount of Five Hundred Dollars ($500.00) or an amount equal to one percent (1%) of the unpaid amount, whichever is greater, to be paid to the Administrator Commission.
F.  On or before the first day of April of each year, the State Treasurer shall advise the Administrator Commission, the Board of Managers of CompSource Oklahoma and the Tax Commission of the amount of money held as of March 1 of that year by the State Treasurer to the credit of the Multiple Injury Trust Fund.  On or before the first day of November of each year, the State Treasurer shall advise the Administrator Commission, the Board of Managers of CompSource Oklahoma and the Tax Commission of the amount of money held as of October 1 of that year by the State Treasurer to the credit of the Multiple Injury Trust Fund.
G.  Eighty percent (80%) of all sums held by the State Treasurer to the credit of the Multiple Injury Trust Fund may by order of the CompSource Oklahoma President and Chief Executive Officer, with the approval of the Board of Managers of CompSource Oklahoma, be invested in or loaned on the pledge of any of the securities in which a state bank may invest the monies deposited therein by the State Treasurer; or may be deposited in state or national banks or trust companies upon insured time deposit bearing interest at a rate no less than currently being paid upon insured savings accounts in the institutions.  As used in this section, “insured” means insurance as provided by an agency of the federal government.  All such securities or evidence of indebtedness shall be placed in the hands of the State Treasurer, who shall be the custodian thereof, who shall collect the principal and interest when due, and pay the same into the Multiple Injury Trust Fund.  The State Treasurer shall pay by vouchers drawn on the Multiple Injury Trust Fund for the making of such investments, when signed by the CompSource Oklahoma President and Chief Executive Officer and approved by the Board of Managers of CompSource Oklahoma, upon delivery of such securities or evidence of indebtedness to the State Treasurer.  The CompSource Oklahoma President and Chief Executive Officer may, upon like approval of the Board of Managers of CompSource Oklahoma, sell any of such securities, the proceeds thereof to be paid over to the State Treasurer for the Multiple Injury Trust Fund.
H.  The refund provisions of Sections 227 through 229 of Title 68 of the Oklahoma Statutes shall be applicable to any payments made to the Multiple Injury Trust Fund.  Refunds shall be paid from and out of the Multiple Injury Trust Fund.
I.  The Tax Commission shall pay, monthly, to the State Treasurer to the credit of the Multiple Injury Trust Fund all monies collected pursuant to the provisions of this section, less the annual sum of Two Million Five Hundred Fifty Thousand Dollars ($2,550,000.00), of which One Million Two Hundred Seventy-five Thousand Dollars ($1,275,000.00) shall be payable by the Oklahoma Tax Commission to the State Treasurer in equal monthly installments to the credit of the Department of Labor, Six Hundred Thirty-seven Thousand Five Hundred Dollars ($637,500.00) shall be payable in equal monthly installments to the credit of the Office of the Attorney General, and Six Hundred Thirty-seven Thousand Five Hundred Dollars ($637,500.00) shall be payable in equal monthly installments to the credit of the Oklahoma Department of Career and Technology Education.  Monies received by the Department of Labor under this section shall be used for safety consultation and the regulation of the safety of public employees through the Occupational Safety and Health Act of 1970.  Monies received by the Office of the Attorney General shall be deposited to the credit of the Attorney General’s Workers’ Compensation Fraud Unit Revolving Fund created pursuant to Section 19.2 of Title 74 of the Oklahoma Statutes.  Monies received by the Oklahoma Department of Career and Technology Education shall supplement other funding to the Department for purposes of implementing the provisions of subsection B of Section 414 of Title 40 of the Oklahoma Statutes.  The State Treasurer shall pay out of the Multiple Injury Trust Fund only upon the order and direction of the Workers’ Compensation Court acting under the provisions hereof.
J.  The Administrator Workers’ Compensation Commission shall promulgate rules as the Administrator Commission deems necessary to effectuate the provisions of this section.
K.  The Insurance Commissioner shall promulgate rules relating to insurers as defined in Title 36 of the Oklahoma Statutes, as the Insurance Commissioner deems necessary to effectuate the provisions of this section.
L.  The Multiple Injury Trust Fund may enter into any agreement with CompSource Oklahoma for the purpose of fulfilling all of its payment obligations.
M.  The Multiple Injury Trust Fund may enter into an agreement with any reinsurer licensed to sell reinsurance by the Insurance Commissioner pursuant to a competitive process administered by the Director of Central Purchasing in the Office of Management and Enterprise Services.
N.  Any dividend, rebate, or other distribution, payable by CompSource Oklahoma or any other workers’ compensation insurance carrier, to a state agency policyholder shall be paid to the State Treasurer, and shall be credited as follows:
1.  In the event of failure of the Multiple Injury Trust Fund to meet all lawful obligations, the monies shall be credited to the Multiple Injury Trust Fund and shall be used by the Multiple Injury Trust Fund to meet all lawful obligations of the Multiple Injury Trust Fund; and
2.  Otherwise, all future dividends made by CompSource Oklahoma or any workers’ compensation insurance carrier, on behalf of state agencies, shall be deposited to the credit of the General Revenue Fund of the State Treasury.
SECTION 74.     AMENDATORY     85 O.S. 2011, Section 405, is amended to read as follows:
Section 405.  A.  The right to claim compensation for benefits from the Multiple Injury Trust Fund shall be forever barred unless a Notice of Claim, on a form prescribed by the Administrator of the Workers’ Compensation Court Commission, shall be filed with the Workers’ Compensation Court Commission within two (2) years of the date of the last order for permanent partial impairment from the latest claim against the employer.
B.  When a claim for benefits from the Multiple Injury Trust Fund is filed, unless claimant shall in good faith request a hearing and final determination thereon within three (3) years of the filing thereof, the same shall be barred.
C.  An attorney who represents a respondent or insurance carrier in a claim against the last employer shall not represent the employee in a subsequent claim against the Multiple Injury Trust Fund.
SECTION 75.     AMENDATORY     85 O.S. 2011, Section 406, is amended to read as follows:
Section 406.  A.  CompSource Oklahoma shall be charged with the administration and protection of the Multiple Injury Trust Fund and shall be notified by the Administrator of the Workers’ Compensation Court Commission of all proceedings which may affect such fund.
B.  CompSource Oklahoma shall have standing and the authority to appear in any case before the Workers’ Compensation Commission or Court of Existing Claims in which the Commission or Court is considering an award from the Multiple Injury Trust Fund.
C.  Any party interested shall have a right to bring a proceeding in the Supreme Court to review an award of the Commission or Court affecting such Multiple Injury Trust Fund, in the same manner as is now provided by law with reference to other awards by the Commission or Court.
D.  The State Treasurer shall allocate to CompSource Oklahoma out of the Multiple Injury Trust Fund, sufficient funds for administration expenses thereof in amounts to be fixed and approved by the Administrator for the Multiple Injury Trust Fund, unless rejected by the Governor and Attorney General.
SECTION 76.     AMENDATORY     85 O.S. 2011, Section 407, is amended to read as follows:
Section 407.  A.  There is hereby created in the State Treasury the “Workers’ Compensation Administration Fund” to be used for the costs of administering the Workers’ Compensation Code and for other purposes pursuant to legislative appropriation.
B.  No money on deposit with the State Treasurer to the credit of the Workers’ Compensation Administration Fund shall be expended except pursuant to legislative appropriation.
C.  For the purpose of providing funds for the Workers’ Compensation Administration Fund, each mutual or interinsurance association, stock company, CompSource Oklahoma or other insurance carrier writing workers’ compensation insurance in this state shall pay to the Oklahoma Tax Commission a tax at a rate of one percent (1%) of all gross direct premiums written during each quarter of the calendar year for workers’ compensation insurance on risks located in this state after deducting from such gross direct premiums, return premiums, unabsorbed portions of any deposit premiums, policy dividends, safety refunds, savings and other similar returns paid or credited to policyholders.  Such payments to the Tax Commission shall be made not later than the fifteenth day of the month following the close of each quarter of the calendar year in which such gross direct premium is collected or collectible.  Contributions made by insurance carriers and CompSource Oklahoma, under the provisions of this section, shall be considered for the purpose of computing workers’ compensation rates.
D.  When an employer is authorized to become a self-insurer, the Administrator of the Workers’ Compensation Court as directed by the Workers’ Compensation Court Commission shall so notify the Tax Commission, giving the effective date of such authorization.  The Tax Commission shall then assess and collect from the employers carrying their own risk a tax at the rate of two percent (2%) of the total compensation for permanent total disability awards, permanent partial impairment awards and death benefits paid out during each quarter of the calendar year by the employers.  Such tax shall be payable by the employers and collected by the Tax Commission according to the provisions of this section regarding payment and collection of the tax created in subsections C, E, F and G of this section.
E.  It shall be the duty of the Tax Commission to collect the payments provided for in this act.  The Tax Commission is hereby authorized to bring an action for the recovery of any delinquent or unpaid payments required in this section.  The Tax Commission may also enforce payments by proceeding in accordance with the provisions of Section 46 346 of this act title.
F.  The Tax Commission shall pay monthly to the State Treasurer to the credit of the General Revenue Fund all monies collected under the provisions of this section.
G.  The refund provisions of Sections 227 through 229 of Title 68 of the Oklahoma Statutes shall be applicable to any payments made pursuant to this section.
SECTION 77.     AMENDATORY     85 O.S. 2011, Section 408, is amended to read as follows:
Section 408.  Any form, claim, answer or report to be filed by any person with the Administrator of the Workers’ Compensation Court Commission under the Workers’ Compensation Code shall contain or be verified by a written declaration that such form, claim, answer or report is true and made under the penalty of perjury.
SECTION 78.     AMENDATORY     85 O.S. 2011, Section 409, is amended to read as follows:
Section 409.  A.  Whenever two or more carriers disagree as to which carrier shall be liable for benefits, including medical care and temporary total disability compensation, to an injured employee, the Workers’ Compensation Court of Existing Claims or the Workers’ Compensation Commission may order one of the carriers to start paying benefits immediately.  The decision of the Court or Commission to choose one carrier over another to pay benefits shall not be appealable until the Court’s final order of the Court or Commission as to the disability of the employee.
B.  The Court Workers’ Compensation Commission shall promulgate rules for expedited hearings in cases involving carrier disputes over the need for immediate medical care and temporary total disability compensation.
C.  The carrier in the final order who is liable on the risk for the injury shall, upon proper proof of payment, promptly reimburse the other carrier for benefits paid.
D.  The Court of Existing Claims for claims for injuries that occurred before November 1, 2013, or the Workers’ Compensation Commission for claims for injuries that occurred on or after November 1, 2013, shall have authority to require an employer and an insurance carrier to reimburse other employers and insurance carriers for benefits paid pursuant to the Workers’ Compensation Code in appropriate cases.
SECTION 79.     AMENDATORY     85 O.S. 2011, Section 410, as last amended by Section 1, Chapter 254, O.S.L. 2012 (85 O.S. Supp. 2012, Section 410), is amended to read as follows:
Section 410.  A.  Every employer and every employee subject to the provisions of the Workers’ Compensation Code, upon filing a notice of injury, accidental injury, death, occupational disease, or claim for benefits from the Multiple Injury Trust Fund, shall give written permission for the Administrator of the Workers’ Compensation Court of Existing Claims or a designee, the Workers’ Compensation Commission or a designee, the Insurance Commissioner or a designee, the Attorney General or a designee or a district attorney or a designee to examine all records relating to the notice, any matter contained in the notice, and any matter relating to the notice.
B.  Written permission given pursuant to this section shall constitute authorization for access to medical records pursuant to Section 19 of Title 76 of the Oklahoma Statutes.
C.  In carrying out the responsibilities given to the Workers’ Compensation Fraud Unit, the Attorney General or designee may use subpoenas or other process in aid of investigations and prosecutions and may take possession of records subject to examination pursuant to this section by subpoena.  Additionally, the Attorney General is authorized to enter into contracts with retired peace officers certified by the Council on Law Enforcement Education and Training pursuant to Section 1289.8 of Title 21 of the Oklahoma Statutes or CLEET-certified private investigators for investigative services to carry out the responsibilities given to the Workers’ Compensation Fraud Unit.  The Attorney General shall supply copies of the records obtained which are necessary to the continuation of normal business operations by the person maintaining the records or may require the person maintaining the records to provide copies as they are kept in the usual course of business.
D.  Subpoenas ad testificandum or duces tecum requested by the Attorney General or designee pursuant to subsection C of this section shall be issued by the district court in the county of the residence of the person to whom the subpoena is directed, in the county where the records are located or in the county where a person is to produce records or appear and be sworn.  Subpoenas issued pursuant to this section may be served by the Attorney General, any peace officer or any competent person over eighteen (18) years of age, and may require attendance or production at any place in this state.  Service may be made by mail and may be accomplished by mailing a copy thereof by certified mail with return receipt requested and delivery restricted to the person named in the subpoena.  Proof of service shall be made upon affidavit, and if made by mail, a copy of the return receipt shall be attached.  A refusal to obey such subpoena, or willful failure to appear, be sworn, testify or produce records at the place and time specified shall constitute contempt and shall be enforced by the district court of the county where issued.
E.  Nothing in this section shall be construed to waive, limit or impair any evidentiary privilege recognized by law.
F.  The Workers’ Compensation Court Commission shall include a statement on forms for notices and instructions to employers and employees that the permission required by this section must be given at the time of filing a notice specified in subsection A of this section.
G.  In the event a claimant in a workers’ compensation case is charged with workers’ compensation fraud pursuant to Section 1663 of Title 21 of the Oklahoma Statutes, any pending workers’ compensation proceeding shall be stayed after the preliminary hearing is concluded and the claimant is bound over and shall remain stayed until the final disposition of the criminal case.  All notice requirements shall continue during any such stay.
H.  As used in this section, “records” includes, but is not limited to, anything for which a request to produce may be served pursuant to Section 3234 of Title 12 of the Oklahoma Statutes.
SECTION 80.     AMENDATORY     85 O.S. 2011, Section 412, as amended by Section 1083, Chapter 304, O.S.L. 2012 (85 O.S. Supp. 2012, Section 412), is amended to read as follows:
Section 412.  A.  1.  All unexpended funds, assets, property, records, personnel and any outstanding financial obligations and encumbrances of the Workers’ Compensation Court before the effective date of this act are hereby transferred to the Workers’ Compensation Court created in Section 303 of this title Commission.  The personnel transferred shall retain leave, sick and annual time earned and any retirement and longevity benefits which have accrued during their employment with the state.  The salaries of employees who are transferred shall not be reduced as a direct and immediate result of the transfer.  There shall be no reduction-in-force as a result of the transfer.
2.  Any unexpended funds, including interest thereon, held by the State Treasurer in an interest bearing agency special account maintained by the Workers’ Compensation Court before the effective date of this act from which a self-insured employer’s workers’ compensation obligations are paid following nonpayment by the self-insured employer for any reason, including insolvency, shall be transferred to the Workers’ Compensation Court created by Section 303 of this title Commission.  Such funds shall be expended by the Court Commission only for the purpose of paying workers’ compensation obligations of the self-insured employer, and costs related to the administration of such obligations, to the extent of the availability of such funds.
B.  1.  All unexpended funds, assets, property, and records and any outstanding financial obligations and encumbrances of the Individual Self-Insured Guaranty Fund Board before the effective date of this act August 26, 2011, are hereby transferred to the Individual Self-Insured Guaranty Fund Board created in Section 358 of this title.
2.  Any unexpended funds, including interest thereon, held by the State Treasurer in the Individual Self-Insured Guaranty Fund before the effective date of this act August 26, 2011, shall be transferred to the Individual Self-Insured Guaranty Fund Board created by Section 358 of this title.  Such funds shall be expended by the Board only as authorized in Section 358 of this title.
C.  1.  All unexpended funds, assets, property, and records and any outstanding financial obligations and encumbrances of the Group Self-Insurance Association Board before the effective date of this act August 26, 2011, are hereby transferred to the Group Self-Insurance Association Guaranty Fund Board created in Section 359 of this title.
2.  Any unexpended funds, including interest thereon, held by the State Treasurer in the Group Self-Insurance Association Guaranty Fund before the effective date of this act August 26, 2011, shall be transferred to the Group Self-Insurance Association Guaranty Fund Board created by Section 59 359 of this act title.  Such funds shall be expended by the Board only as authorized in Section 359 of this title.
D.  All property and records of the Physician Advisory Committee before the effective date of this act August 26, 2011, are hereby transferred to the Physician Advisory Committee created in Section 373 of this title.
E.  All property and records of the Advisory Council on Workers’ Compensation before the effective date of this act August 26, 2011, are hereby transferred to the Advisory Council on Workers’ Compensation created in Section 374 of this title.
F.  All unexpended funds, assets, property, records, personnel and any outstanding financial obligations and encumbrances of the Multiple Injury Trust Fund before the effective date of this act August 26, 2011, are hereby transferred to the Multiple Injury Trust Fund created in Section 403 of this title.  The personnel transferred shall retain leave, sick and annual time earned and any retirement and longevity benefits which have accrued during their employment with the state.  The salaries of employees who are transferred shall not be reduced as a direct and immediate result of the transfer.  There shall be no reduction-in-force as a result of the transfer.
G.  The Director of the Office of Management and Enterprise Services is hereby directed to coordinate the transfer of funds, allotments, purchase orders, outstanding financial obligations or encumbrances provided for in subsections A and F of this section, and the transfer of funds, outstanding financial obligations or encumbrances provided for in subsections B and C of this section.
SECTION 81.     NEW LAW     A new section of law not to be codified in the Oklahoma Statutes reads as follows:
A.  Provisions of the Oklahoma Employee Injury Benefit Act shall be strictly construed without favoritism to any party.
B.  The Legislature finds that certain employers, by virtue of the nature and type of the work undertaken by their employees, are experiencing significant costs associated with claims for occupational injuries subject to the Workers' Compensation Code.  The Legislature has determined that the inability on the part of those employers to effectively and efficiently manage these claims has contributed to the increased costs associated with such claims and has resulted in reduced efficiency in the treatment of injured employees.  In an effort to provide more efficient management of such claims, to help provide employees with better managed medical care and to assist this state in the attraction and retention of new employers, the Legislature hereby adopts this act.  The exceptions to application of the Workers' Compensation Code provided for in subsection A of Section 84 of this act are in addition to exceptions provided for in Section 311 of Title 85 of the Oklahoma Statutes.  The Legislature has determined that the distinctions between certain categories of employers and employees, based on the criterion set forth in subsection A of Section 84 of this act, are warranted due to either or both the employer's "workers' compensation experience modifier", and its "total annual incurred claims" history.  Each of these factors bear on the ability and need for an employer to create and maintain a benefit plan as described in this act.  Further, because an employer's status under the criteria set forth in subsection A of Section 84 of this act affects its stability and ability to hire, maintain, and promote employees, these same factors affect its employees.  Thus, there is a rational basis for the exceptions to the application of the Workers' Compensation Code that are provided in the Oklahoma Employee Injury Benefit Act.
C.  Accordingly, it is the specific purpose and intent of the Legislature that the Oklahoma Employee Injury Benefit Act:
1.  Provide a fair and balanced alternative to the Workers' Compensation Code for providing benefits to injured employees;
2.  Encourage the prompt medical care for and payment of compensation to injured workers;
3.  Promote the efficient resolution of occupational injuries;
4.  Provide employers with a more efficient and effective system to manage the medical care and treatment of their injured employees; and
5.  Assist the state in attracting and retaining business, thereby contributing to the overall economic development and well-being of its citizens.
SECTION 82.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.11 of Title 85, unless there is created a duplication in numbering, reads as follows:
Sections 82 through 90 of this act shall be known and may be cited as the "Oklahoma Employee Injury Benefit Act".
SECTION 83.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.12 of Title 85, unless there is created a duplication in numbering, reads as follows:
As used in the Oklahoma Employee Injury Benefit Act:
1.  "Benefit plan" means a plan established by a qualified employer under the requirements of Section 85 of this act;
2.  "Bona fide association" means an association that:
a.	has been formed and maintained in good faith for purposes other than obtaining insurance, and
b.	does not make insurance described in this act and offered through the bona fide association available other than in connection with a member of the bona fide association;
3.  "Commissioner" means the Insurance Commissioner of the Insurance Department;
4.  "Court" means the Workers' Compensation Court or any successor, unless otherwise stated;
5.  "Covered employee" means an employee whose employment with a qualified employer is principally located within the state;
6.  "Employee" means any person engaged in the employment of an employer and receives his or her pay by means of a salary, wage, or commission directly from the employer and for whom an employer files a Form W-2 with the Internal Revenue Service.  "Employee" does not include an independent contractor or third-party agent;
7.  "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, employing a person included within the term employee;
8.  "Occupational injury" means an injury, including death, or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment;
9.  "Preinjury pay" means:
a.	for salaried covered employees, regular periodic salary from a qualified employer at the time of the occupational injury,
b.	for hourly covered employees, the average earnings from a qualified employer for the six consecutive pay periods immediately preceding the date of the occupational injury; provided, however, that if the covered employee has worked for a qualified employer for less than six consecutive pay periods, or if his or her earnings as of such date cannot be reasonably determined, such six-pay-period average will be based on the earnings received over such period by a similar covered employee of the qualified employer.
Preinjury pay shall include pay for overtime and employee contributions, through salary reduction or otherwise, to a 401(k) or similar arrangement, cafeteria plan, or other pretax salary deferral employee benefit plan.  Preinjury pay shall not include any bonuses, employer-paid benefits that include but are not limited to contributions to any employee benefit plans or matching contributions to a retirement plan, or other extraordinary remuneration;
10.  "Surviving spouse" means a spouse who was married to the deceased covered employee; and
11.  "Qualified employer" means an employer otherwise subject to the Workers' Compensation Code that voluntarily elects to be exempt from the Workers' Compensation Code by satisfying the requirements under this act.
SECTION 84.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.13 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  Any employer may voluntarily elect to be exempt from the Workers' Compensation Code and become a qualified employer if the employer:
1.  a.	has a workers' compensation experience modifier, as reported by the National Council of Compensation Insurers (NCCI), greater than one (1.00) for the preceding Oklahoma workers' compensation insurance policy year, or
b.	has total annual incurred claims, as reflected in an NCCI workers' compensation experience modifier worksheet or their workers' compensation carrier loss runs, greater than Fifty Thousand Dollars ($50,000.00) in at least one of the preceding three (3) Oklahoma workers' compensation insurance policy years.
For purposes of the requirements of this paragraph, the principles of Internal Revenue Code Section 414 shall apply such that all employees of all corporations which are members of a controlled group of corporations shall be treated as employed by a single employer; all employees of trades or businesses, whether or not incorporated, which are under common control shall be treated as employed by a single employer; all employees of the members of an affiliated service group shall be treated as employed by a single employer; and all employees of the members of a multiple employer welfare arrangement licensed under the laws of this state shall be treated as employed by a single employer.
Qualification criterion established in this subsection shall apply only as of the date the employer elects to become a qualified employer;
2.  Is in compliance with the notice requirements in subsections B and H of this section; and
3.  Has established a written benefit plan as described in Section 85 of this act.
B.  An employer that has elected to become a qualified employer by satisfying the requirements of this section shall notify the Court and the Commissioner in writing of the election and the date that the election is to become effective, which may not be sooner than the date that the qualified employer satisfies the employee notice requirements in this section.  Such qualified employer shall pay to the Commissioner an annual nonrefundable fee of One Thousand Five Hundred Dollars ($1,500.00) which shall accompany the filing of the written notice.
C.  The Commissioner shall collect and maintain the information required under this section and shall monitor compliance with the requirements of this section.  The Commissioner may also require an employer to confirm its qualified employer status.  Subject to subsection D of this section, the Commissioner shall adopt rules designating the methods and procedures for confirming whether an employer is a qualified employer, notifying an employer of any qualifying deficiencies, and the consequences thereof.  The Commissioner shall record the date and time each notice of qualified employer status is received and the effective date of qualified employer election.  The Commissioner shall maintain a list on its official website accessible by the public of all qualified employers and the date and time such exemption became effective.
D.  The Oklahoma Workers' Compensation Court, the state courts of Oklahoma, the Commissioner, and all other Oklahoma administrative agencies, shall not promulgate rules, regulations or any procedures related to design, documentation, implementation, administration or funding of a qualified employer's benefit plan.  Provided, however, that the Commissioner may promulgate rules, regulations and procedures related to:
1.  Bona fide association plans for a particular trade, business, profession or industry; and
2.  The insurance, bonding, and other security approved under subsection H of Section 85 of this act,
to support payment of the benefits described in subsection B of Section 85 of this act.
E.  The Commissioner may designate an information collection agent, implement an electronic reporting and public information access program, and adopt rules as necessary to implement the information collection requirements of this section.
F.  The Commissioner may prescribe forms to be used for the qualified employer notification and shall require the qualified employer to provide its name, address, contact person and phone number, federal tax identification number, claim administration contact information, and a listing of all covered business locations in the state.  The Commissioner shall notify the Oklahoma Commissioner of Labor of all qualified employer notifications.  The Department of Labor shall provide such notifications to other governmental agencies as the Department deems necessary.
G.  The Commissioner may contract with the Oklahoma Employment Security Commission, the State Treasurer, or the Oklahoma Department of Labor for assistance in collecting the notification required under this section.  Those agencies shall cooperate with the Commissioner in enforcing this section.
H.  A qualified employer shall notify each of its employees in the manner provided in this section that it is a qualified employer, that it does not carry workers' compensation insurance coverage and that such coverage has terminated or been cancelled.
I.  A bona fide association may, through such insurance carriers and products approved by the Commissioner, offer benefit plans and insurance coverage described in this act to a particular trade, business, profession or industry or their subsidiaries.
J.  The qualified employer shall provide written notification to employees as required by this section at the time the employee is hired or at the time of designation as a qualified employer.
K.  The qualified employer shall post the employee notification required by this section at conspicuous locations at the qualified employer's places of business as necessary to provide reasonable notice to all employees.
L.  The Commissioner may adopt rules relating to the form, content, and method of delivery of the employee notification required by this section.
SECTION 85.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.14 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  An employer voluntarily electing to become a qualified employer shall adopt a written benefit plan that complies with the requirements of this section.  Qualified employer status is optional for eligible employers, and no benefit plan shall be considered to be maintained solely for the purpose of complying with the workers' compensation laws of this state, provided that the benefit plan is otherwise subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA").  The benefit plan shall not become effective until the date that the qualified employer first satisfies the notice requirements in Section 84 of this act.
B.  The benefit plan shall provide for payment of medical, disability, permanent bodily impairment, death and dismemberment benefits as a result of an occupational injury, in amounts not less than the following:
1.  One hundred percent (100%) of occupational injury medical expenses, subject to subsection C of this section, with no other maximum dollar or duration limits for all medical expenses combined per occurrence.  Medical necessity must be directly related to the occupational injury and confirmed by objective medical evidence.  In no event shall an employee be charged any premium, copay or deductible under the Oklahoma Employee Injury Benefit Act;
2.  For temporary inability to work in either a covered employee's own occupation or any alternative work offered by the employer, eighty percent (80%) of the covered employee's preinjury pay, less other related postinjury income, starting from the first scheduled working day of disability, for one hundred fifty-six (156) weeks, with a maximum weekly benefit of one hundred percent (100%) of the Oklahoma state average weekly wage;
3.  For permanent inability to work as a result of the occupational injury in the employee's previously held position, any occupation and any alternative work offered by the employer and following payment of all temporary wage replacement under paragraph 2 of this subsection, eighty percent (80%) of the covered employee's preinjury pay, less other related postinjury income, until the later of eligibility for one hundred percent (100%) Social Security Disability or fifteen (15) years, with a maximum weekly benefit of one hundred percent (100%) of the Oklahoma state average weekly wage;
4.  Following payment of temporary wage replacement under paragraph 2 of this subsection, if:
a.	future medical expense will be incurred and payable on the injury claim, and
b.	the covered employee is unable to return to the preinjury or equivalent job position,
eighty percent (80%) of the covered employee's preinjury pay for five (5) weeks for each percentage point of whole person impairment determined under the Fourth edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment" for objective loss of function, with a minimum weekly benefit of One Hundred Fifty Dollars ($150.00)and a maximum weekly benefit of fifty percent (50%) of the Oklahoma state average weekly wage; provided, however, that the number of weeks for certain scheduled injuries shall be subject to the following minimum number of weeks for complete loss or loss of use:
Scheduled Member	Weeks
Arm or Leg	275
Hand or Foot	220
Thumb	66
First Finger	39
Second Finger	33
Third Finger	22
Fourth Finger	17
Great Toe	33
Other Toes	11
One Ear	110
Two Ears	330
Eye	275
A partial loss or loss of use of such a scheduled member of the body may result in payment for the number of weeks which the percentage of loss bears to the above number of weeks.  Payments need not be made for both loss of fingers and loss of the same hand, or for loss of toes and loss of the same foot.  All above impairment income benefits combined shall not exceed one hundred percent (100%) whole person impairment or five hundred (500) weeks; and
5.  Death benefits equal to:
a.	Two Hundred Thousand Dollars ($200,000.00),
b.	funeral benefits in an amount not to exceed Ten Thousand Dollars ($10,000.00), and
c.	weekly benefits equal to eighty percent (80%) of the covered employee's preinjury pay up to one hundred percent (100%) of the Oklahoma state average weekly wage to the surviving spouse until the earlier of remarriage or two hundred sixty (260) weeks.  If there is no surviving spouse, but minor children, then each minor child will receive a pro rata portion of the:
(1)	Two Hundred Thousand Dollars ($200,000.00), and
(2)	weekly benefits until the earlier of reaching the age of majority or two hundred sixty (260) weeks.
In all other cases, beneficiaries for any death benefit payment shall be determined by the provisions of the benefit plan.
C.  The benefit plan may provide for lump-sum payouts that are, as reasonably determined by the administrator of such plan appointed by the qualified employer in accordance with ERISA, actuarially equivalent to expected future payments.  The benefit plan may also provide for settlement agreements; provided, however, any settlement agreement by a covered employee shall be voluntary, entered into not earlier than the tenth business day after the date of the initial report of injury, and signed after the covered employee has received a medical evaluation from a nonemergency care doctor, with any waiver of rights being conspicuous and on the face of the agreement.  The benefit plan may specify conditions and limitations on benefits, including but not limited to additional criteria for covered and noncovered injuries and medical charges, and continuation, suspension and termination of benefits; provided, however, the benefit plan shall pay benefits without regard to whether the covered employee, the qualified employer, or a third party caused the occupational injury; and, provided further, that the benefit plan must provide eligibility to participate for and provide the same forms and levels of benefits to all Oklahoma employees of the qualified employer.  None of the provisions of the Workers' Compensation Code shall define, restrict, expand or otherwise apply to a benefit plan.
D.  The benefit plan shall comply with and shall be subject to the employee benefit plan requirements of ERISA.  Such compliance is required in order for a qualified employer to be protected by both ERISA and the exclusive remedy protection contained in subsection A of Section 86 of this act.  Such a benefit plan shall be governed by and subject to ERISA.  A violation of ERISA if timely cured shall not act to deny qualified employer status to an employer that otherwise meets the requirements for a qualified employer.
E.  No fee or cost to an employee shall apply to a qualified employer's benefit plan.  Authority over penalties and enforcement of the provisions of the benefit plan and ERISA shall be vested in the benefit plan administrator, employees covered by the benefit plan, the U.S. Department of Labor, and the federal courts as provided by ERISA.
F.  The qualified employer shall provide to the Commissioner and covered employees notice of the name, title, address, and telephone number for the person to contact for injury benefit claims administration, whether in-house at the qualified employer or a third-party administrator.
G.  A qualified employer may self-fund or insure benefits payable under the benefit plan, employers liability under this act, and any other insurable risk related to its status as a qualified employer with any insurance carrier authorized to do business in this state.
H.  Insurance coverage or surety bond obtained by a qualified employer shall be from an admitted or surplus lines insurer with an AM Best Rating of A- or better.  A qualified employer shall obtain either:
1.  Accidental insurance coverage in an amount of at least Two Million Dollars ($2,000,000.00) per occurrence, with sublimits in at least the following amounts:
a.	Five Hundred Thousand Dollars ($500,000.00) per person for medical expenses and coverage for at least one hundred fifty-six (156) weeks,
b.	eighty percent (80%) of the covered employee's preinjury pay for not less than one hundred fifty-six (156) weeks of wage replacement for inability to work, with a five-hundred-dollar maximum weekly benefit, and
c.	Two Hundred Thousand Dollars ($200,000.00) per person for accidental death;
2.  A bond, letter of credit, or excess insurance determined as follows:
a.	the Commissioner, pursuant to rules adopted by the Commissioner for an individual self-insured employer, shall require an employer to:
(1)	secure a surety bond payable to the state, or an irrevocable letter of credit, in an amount no less than Three Hundred Thousand Dollars ($300,000.00) or such additional amount as determined by the Commissioner, or
(2)	provide proof of excess coverage with such terms and conditions as are commensurate with their ability to pay the benefits required by the provisions of the Oklahoma Employee Injury Benefit Act.
The Commissioner may waive the requirements of this paragraph in an amount which is commensurate with the ability of the employer to pay the benefits required by the provisions of the Oklahoma Employee Injury Benefit Act.  Irrevocable letters of credit required by this subsection shall contain such terms as may be prescribed by the Commissioner and shall be issued for the benefit of the state by a financial institution whose deposits are insured by the Federal Deposit Insurance Corporation.
An employer whose permit to self-insure is revoked, denied for renewal or surrendered is not relieved of the obligation for compensation to an employee for a compensable injury that occurred during the period of self-insurance.  The security required under this section, including any interest thereon, shall be maintained by the Commissioner as provided in this act until each claim for benefits is paid, settled, or lapses under this act, and costs of administration of such claims are paid,
b.	any bond shall be filed and held by the Commissioner and shall be for the exclusive benefit of any covered employee of a qualified employer,
c.	any security held by the Commissioner may be used to make a payment to or on behalf of a covered employee provided the following requirements are met:
(1)	the covered employee sustained an occupational injury that is covered by the qualified employer's benefit plan,
(2)	the covered employee's claim for payment of a specific medical or wage replacement benefit amount has been accepted by the plan administrator of the benefit plan or acknowledged in a final judgment or court order assessing a specific dollar figure for benefits payable under the benefit plan,
(3)	the covered employee is unable to receive payment from the benefit plan or collect on such judgment or court order because the qualified employer has filed for bankruptcy or the benefit plan has become insolvent, and
(4)	the covered employee is listed as an unsecured creditor of the qualified employer because of the acceptance of such claim by the plan administrator of the benefit plan or judgment or court order assessing a specific dollar figure for benefits payable under the benefit plan, and
d.	the Commissioner shall promulgate rules to carry out the provisions of this section including those establishing the procedure by which a covered employee may request and receive payment from the security held by the Commissioner; or
3.  Any other security as may be approved by the Commissioner.
I.  The benefit plan shall provide some level of benefits for sickness, injury or death not due to an occupational injury.
SECTION 86.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.15 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  A qualified employer's liability under the benefit plan and otherwise prescribed in the Oklahoma Employee Injury Benefit Act shall be exclusive and in place of all other liability of the qualified employer and any of its employees at common law or otherwise, for a covered employee's occupational injury or loss of services, to the covered employee, or the spouse, personal representative, parents, or dependents of the covered employee, or any other person.  The exclusive remedy protections provided by this subsection shall be as broad as the exclusive remedy protections of Section 302 of Title 85 of the Oklahoma Statutes, and thus preclude a covered employee's claim against a qualified employer for negligence or other causes of action.
B.  Except as otherwise provided by its benefit plan, ERISA or applicable federal law, a qualified employer is only subject to liability in any action brought by a covered employee or his or her dependent family members for injury resulting from an occupational injury if the injury is the result of an intentional tort on the part of the qualified employer.  An intentional tort shall exist only when the covered employee is injured because of willful, deliberate, specific intent of the qualified employer to cause such injury.  Allegations or proof that the qualified employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort.  The issue of whether an act is an intentional tort shall be a question of law for the court or the duly appointed arbitrator, as applicable.
C.  An employee's positive test for intoxication or use of an illegal controlled substance shall create a rebuttable presumption that the covered employee's intoxication or use of an illegally controlled substance caused the covered employee's injury or death.
D.  Any benefits paid under a qualified employer's benefit plan will offset any other award against such qualified employer under this section.
E.  Other than an action brought to enforce the provisions of the benefit plan, any action brought by a covered employee or his or her spouse, personal representative, parents, or dependents based on a claim against a qualified employer arising out of any occupational injury shall be filed no later than two (2) years from the date of the injury or death giving rise to such action.
F.  Enforcement of a limitation on available causes of action, damages, or attorney fees with respect to a covered employee against a qualified employer in accordance with this act shall not be an appealable error.
SECTION 87.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.16 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  A qualified employer or its insurers or other payment sources shall be responsible for:
1.  Compliance with federal law regarding the administration of the plan and claims for benefits under such plan;
2.  Any damage awarded against the qualified employer for intentional tort under Section 88 of this act, including any pre- and postjudgment interest on the award and reasonable court costs as may be lawfully awarded in the action; and
3.  Reasonable attorney fees awarded against the qualified employer under Section 88 of this act; provided, however, that an employee's attorney fees that are contingent upon a recovery under the terms of the benefit plan in paragraph 1 of this subsection shall be payable by a qualified employer as part of and not in addition to such recovery.  An award of attorney fees in favor of a covered employee against a qualified employer on a claim for intentional tort, excluding death, shall be limited to no more than twenty percent (20%) of any lost earnings awarded to the covered employee or his or her spouse, personal representative, parents, or dependents of the covered employee under the benefit plan and such award.  Nothing in this paragraph shall be construed to restrict an award of fees and costs made under federal law.
B.  An employer who is not a qualified employer shall comply with the Workers' Compensation Code.
SECTION 88.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.17 of Title 85, unless there is created a duplication in numbering, reads as follows:
A covered employee and a qualified employer shall resolve:
1.  All occupational injury benefit disputes in accordance with the terms of the qualified employer's benefit plan and ERISA; and
2.  All intentional tort or other employers' liability claims through the appropriate state or federal courts of Oklahoma, mediation, arbitration, or any other form of alternative dispute resolution or settlement process available by law.
SECTION 89.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.18 of Title 85, unless there is created a duplication in numbering, reads as follows:
The Oklahoma Employee Injury Benefit Act shall be liberally construed to give the fullest effect of its provisions and is adopted as part of the public policy of the State of Oklahoma.  Any conflict between the Oklahoma Employee Injury Benefit Act and any other law shall be resolved in favor of the operation of the Oklahoma Employee Injury Benefit Act.
SECTION 90.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 311.19 of Title 85, unless there is created a duplication in numbering, reads as follows:
A.  In any action brought to challenge, in whole or in part, the constitutionality of the Oklahoma Employee Injury Benefit Act, any party to such action may take a direct appeal from the decision of any lower court to the Supreme Court and the Supreme Court shall retain the appeal.  The Supreme Court on an expedited basis shall consider any such appeal.
B.  To the extent the Oklahoma Employee Injury Benefit Act, or any part thereof, is declared to be unconstitutional or unenforceable, it is specifically intended that:
1.  Any employer that became a qualified employer under the Oklahoma Employee Injury Benefit Act shall not be deemed to have failed to secure workers compensation insurance;
2.  The rights and obligations of a qualified employer and its employees shall be subject to the exclusive remedies provisions of Section 314 of Title 85 of the Oklahoma Statutes and a qualified employer shall be entitled to the immunity provided under Section 302 of Title 85 of the Oklahoma Statutes, and an employer that became a qualified employer under the Oklahoma Employee Injury Benefit Act shall be liable for injury to employees only to the extent to which an employer that complied with the provisions of Section 351 of Title 85 of the Oklahoma Statutes would be liable to employees in compensation for such injuries under the Workers' Compensation Code; and
3.  A qualified employer shall have ninety (90) days from any final decision declaring the Oklahoma Employee Injury Benefit Act or any part thereof unconstitutional to secure compliance with the Workers' Compensation Code.
SECTION 91.     REPEALER     85 O.S. 2011, Sections 304, 325 and 331, are hereby repealed.
SECTION 92.  This act shall become effective November 1, 2013.

54-1-6180	SD	01/16/13