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Severe Burns & Disfigurement

 

TULSA OKLAHOMA WORKERS’ COMP BURNS & DISFIGUREMENT SETTLEMENTS

 

EMPLOYER LIABILITY FOR WORK-RELATED BURN & DISFIGUREMENT INJURIES

A worker can only realize a settlement &/or award for disfigurement in Oklahoma if he or she &/or his or her attorney or lawyers can establish that the underlying injury resulting in the severe burn(s) &/or disfigurement is compensable under Oklahoma law.  In this regard–Oklahoma City & Tulsa Workers’ Compensation Court rules provide that a “compensable injury” in Oklahoma, including any injury resulting in either severe burns or disfigurement to an injured worker’s body, means any injury or accident, causing internal or external harm to his or her body, which arises out of and in the course of the worker’s employment & only if such employment was the “major cause” of the specific injury &/or any resulting disfigurement or serious burns [which would include any heat/thermal burns as well as any chemical burns caused by sulfuric acid &/or any other caustic substance used about the workplace].  Furthermore, Oklahoma Workers’ Compensation Law provides that any injury resulting in severe burns &/or disfigurement is compensable only if it is caused by a specfic incident and is identifiable by time, place and occurrence unless it is in the nature of an occupational disease [such as MRSA (methicillin-resistant staphylococcus aureus) or other staph infection].  In this regard one should note:

  • “Occupational disease” means only that disease or illness which is due to causes and conditions characteristic of or peculariar 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.
  • The liability prescribed by shall be exclusive and in place of all other liability of the employer and any of his employees at common law or otherwise, for such injury to the employee, except in the case where the employer has failed to secure the payment of compensation for the injured employee.  If an employer has failed to secure the payment of compensation for his injured employee an injured employee may maintain an action in the courts for damages on account of such injury
  • in cases of temporary total disability, seventy percent (70%) of the employee’s average weekly wages shall be paid to the employee during the continuance thereof.  total payments of compensation for temporary total disability may not exceed a maximum of one hundred fifty-six (156) weeks in the aggregate for good cause shown, as determined by the court.  Total payments of compensation for temporary total disability, inclusive of consequential injuries, may not exceed a maximum of three hundred (300) weeks in the aggregate.
  • The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary after the inury.  The employer’s selected physician shall have the right and responsibility to treat the injured employee.  The employer shall select the treating physician.  The court on application of the employee shall order one change of treating physician.  A change of physician shall be allowed for each individual body part injured if the treating physician determines that the employee’s injured body parts cannot be treated by the same physician.

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

All claims for any compensation or benefits under the workers’ Compensation Act shall be commenced with the filing of a notice of injury with the Administrator.  Unless an employee or former employee gives oral or written notice to the employer or former employer within thirty (30) 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 an 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.  For an occupational disease or cumulative trauma, notice shall be given to the employer within the statutory period for occupational disease set out in section 43 of this title; provided, there shall be a rebuttable presumption that injury from occupational disease or injury caused by cumulative trauma does not arise out of and in the course of employment unless oral or written notice is given by the employee to the employer within ninety (90) days of teh employee’s separation from employment.  Such presumption must be overcome by a preponderance of the evidence

The right to claim compensation under the Workers Compensation Act shall be forever barred unless, within two years after the date of accidental injury or death, a claim for compensation is filed with the workers compensation Court.  Provided however, a claim may be filed within two (2) years of the last medica treatment which was authorized by the employer or the insurance carrier or payment of any compensation or remuneration paid in lieu of compensation.  The filing of any form or report by the employer or insurance carrier shall not toll the above limitations.  Post-termination injury claims shall be filed within six (6) months of termination of employment

“Maximum medical improvement” means that no further material improvement would reasonably be expected from medical treatment or the passage of time.

At the request of either party, a pre-hearing conference shall be held before the member of the court assigned to the case within forty-five (45) days of the filing of a claimant’s request for a hearing.  The purpose of the prehearing conference shall be to mediate and encourage settlement of the case or determine issues in dispute.  All claims so filed shall be heard by the judge sitting wihtout a jury.  The determination of disability shall be the responsibility of the Workers’ Compensation Court

In case of an injury resulting in serious and permanent disfigurement, compensation shall be payable in an amount to be determined by the Court, but not in excess of Twenty Thousand Dollars ($20,000) for an injury occurring before November 1, 2005, and not in excess of Fifty Thousand Dollars ($50,000.00) for an injury occurring on or after November 1, 2005; provided, that compensation for permanent disfigurement shall not be in addition to the other compensation provided for in this section but shall be taken into consideration in fixing the compensation otherwise provided. 

In the case of an injury resulting in serious and permanent disfigurement, compensation shall be payable in an amount to be determined by the Court, but not in excess of Fifty Thousand Dollars ($50,000); provided that compensation for permanent disfiguement shall not be in addition to the other compensation provided for in this section but shall be taken into consideration in fixing the compensation otherwise provided.  An award for permanent disfigurement shall not be made for a part of the body for which permanent partial disability is awarded.

In case of an injury resulting in serious and permanent disfigurement, compensation shall be payable in an amount to be determined by the Court, but not in excess of Twenty Thousand Dollars ($20,000.00); provided, that compensation for permanent disfigurement shall not be in addition to the other compensation provided for in this section, but shall be taken in consideration in fixing the compensation otherwise provided.

Where a compensable injury results in the loss of one or more eyes, teeth, or limbs of the body, the employer shall furnish such prosthetic devices as may be necessary as determined by the Court in the treatment and rehabilitation of the injured workman.  Where a workman sustains a compensable injury arising out of and in the course of his employment, which results in damage to a prosthetic device with which such workman is equipped, the employer shall repair or replace such device.

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 Act.  The court shall make, or cause to be made, such investigation as it deems necessary, and upon application of either party shall order a hearing, and as soon as practable, after a claim for compensation is submitted under this section, or such hearing closed, shall make or deny an award determining such claim for compensation, and file the same in the office of the administrator, together with the statement of its conclusion of fact and rulings of law.  Upon a hearing pursuant to this section either party may present evidence and be represented by counsel.  The decision of the Court shall be final as to all questions of fact, and except as provided in section 3.6 of this title, as to all questions of law.

If a worker entitled to compensation under the Workers’ Compensation Act is injured or killed by the negligence or wrong of another not in the same employ, such injured worker shall, before any suit or claim under the workers’ compensation act, elect whether to take compensation under the workers’ compensation act, or to pursue his remedy against such other.  Such election shall be evidenced in such manner as the administrator may by rule or regulation prescribe.  If he elects to take compensation under the Workers’ Compensation Act, the cause of action against such other shall be assigned to the insurance carrier liable for the payment of such compensation, and if he 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 Act for such case.  The compromise of any such cause of action by the worker at any amount less that the compensation provided for by the workers’ Compensation Act shall be made only with the written approval of the Court.  whenever recovery against such other person is effected without compromise settlement by the employee or his representatives, the employer or insurance company having paid compensation under the Workers’ Compensation Act shall be entitled to reimbursement as hereinafter set forth and shall pay from ist shalre of said reimbursement a proportionate share of the expenses, including attorneys fees, incurred in effecting said recovery to be determined by the ratio that the amount of compensation paid by the employer bears to the amount of the recovery affected by the employee.  after the expenses and attorneys 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 his 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 his representatives as they may agree.

In the event that recovery is effected by compromise settlement, then in that event the expenses, attorneys fees and the balance of the recovery may be divided between the employer or insurance company having paid compensation and the employee or his 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.