On The Job Injuries

Vision & Hearing Loss Cases

TULSA WORKERS’ COMPENSATION VISION & HEARING LOSS SETTLEMENTS

OKLAHOMA WORKERS’ COMP FOR VISION & HEARING LOSS SETTLEMENTS

OKLAHOMA WORKERS’ COMP COVERAGE FOR HEARING LOSS & EYE INJURY CASES: Oklahoma City & Tulsa Workers’ Compensation Court rules provide that every employer otherwise subject to the provisions of the Oklahoma Workers’ Compensation law must pay or provide monetary compensation (to include a cash settlement) and medical benefits according to the provisions and schedules of the Oklahoma Workers’ Comp Act for the severe eye injury, occupational vision loss or hearing impairment of any of its employees where such injury, impairment or loss is determined to have arisen out of and in the course of the injured worker’s employment and only if such employment was the ‘major cause’* of the injury or loss, without regard to fault for such injury, damage or loss, if the hurt employee’s contract of employment was made or if the injury occurred within the state of Oklahoma. The injured employee &/or his or her attorney or lawyer always has the burden of proof to establish by a preponderance of the evidence submitted to either the Oklahoma City or Tulsa Workers’ Compensation Court that such unexpected or unforeseen injury was in fact caused by his or her employment.

*NOTE: The Oklahoma City and Tulsa Work Comp Court has determined that the term “major cause” means more than fifty percent (50%) of the injured worker’s resulting eye injury, disease, vision &/or hearing loss.

OKLAHOMA WORKERS COMPENSATION COVERAGE FOR VISION, EYE, EAR & HEARING LOSS CUMULATIVE TRAUMA INJURIES: Oklahoma City & Tulsa Workers’ Compensation Court rules provide that where monetary compensation &/or a cash settlement is payable for a worker’s eye, ear, vision or hearing loss injury resulting from cumulative trauma, the last employer in whose employment the hurt employee was last injuriously exposed to the trauma causing the hearing loss or vision damage during a period of at least ninety (90) days or more, and the insurance company, if any, on the risk when the employee was last so exposed under such employer, will alone be liable for any medical or monetary benefits, including a permanent partial settlement, without right to contribution from any prior employer or insurance company.

NOTE: The Tulsa & Oklahoma City Workmen’s Comp Court has determined that a ”compensable injury” will not include the ordinary, gradual deterioration or progressive degeneration to a worker’s eye, vision or hearing caused by the aging process, unless the worker’s employment is a major cause of the deterioration or degeneration and is supported by objective medical evidence.

NOTE: The Tulsa & Oklahoma City Workman’s Compensation Court has determined that the term “compensable injury” does include damage to personal property which is established by objective medical evidence to be medically necessary and which replaces or improves normal physical function of a worker’s body, such as hearing aides or devices, artificial or glass eyes, eye glasses and/or other prostheses which are placed in or on the body and otherwise damaged as a result of the injury.

NOTE: The Oklahoma City & Tulsa Work Comp Court has determined that the term “Cumulative trauma” when referring to an eye or hearing loss claim means eye injury, vision loss or hearing impairment damage 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.

NOTE: Any eye injury, vision or hearing loss resulting directly from the injured employee’s willful failure to use a guard or eye, ear or hearing protection furnished for use pursuant to law will not be covered by or compensable under the Oklahoma Workers’ Compensation law. Furthermore–except for innocent victims, any traumatic eye injury or sudden hearing loss caused by a prank, horseplay, or similar willful or intentional behavior will not be eligible for an Oklahoma Worker’s compensation settlement.

NOTICE & FILING REQUIREMENTS: OKLAHOMA HEARING LOSS & EYE INJURY CLAIMS

STATUTORY COURT FILING(s) FOR INITIATING AN EYE INJURY OR VISION OR HEARING LOSS CLAIM BEFORE THE OKLAHOMA WORKERS’ COMP COURT: Any claim for benefits &/or a settlement under the Oklahoma Workers’ Compensation Law for an eye injury or vision or hearing loss damage can only be commenced by the injured worker &/or his or her attorney or lawyer properly filing with either the Oklahoma City or Tulsa Workers’ Compensation Court a pleading formally designated as the Employee’s First Notice of Accidental Injury and Claim for Compensation (otherwise known as and referred to as the “Claimant’s FORM 3″).

STATUTE OF LIMITATIONS FOR FILING AN OKLAHOMA WORKERS’ COMPENSATION EYE INJURY, HEARING DAMAGE OR VISION LOSS CASE: An injured worker’s right to claim compensation, benefits &/or a settlement under the Oklahoma Workers’ Compensation Law will be forever barred unless, within two (2) years after the date of a sudden traumatic eye injury or hearing loss or damage case, a FORM 3 EMPLOYEE’S FIRST NOTICE OF ACCIDENTAL INJURY AND CLAIM FOR COMPENSATION is filed with either the Oklahoma City or Tulsa Workers’ Compensation Court. However, with respect to an eye injury, vision damage or hearing loss caused by repeated, repetitive or prolonged cumulative trauma or exposure causually connected with the injured worker’s employment duties, such employee’s FORM 3 claim form must be filed within two (2) years of the date on which the injured employee was last employed by the employer.

NOTE: Understanding the filing requirements and deadlines described above, an injured worker &/or his or her attorney or lawyer can also file the injured worker’s FORM 3 EMPLOYEE’S FIRST NOTICE OF ACCIDENTAL INJURY AND CLAIM FOR COMPENSATION within two (2) years of the date of either:

the last medical treatment received by the injured worker which was also authorized by the worker’s employer &/or the employer’s insurance company, or
the payment of any compensation, benefits, temporary total disability or permanent settlement received by the injured worker and paid by his or her employer &/or the employer’s insurance company.

NOTE: The filing of any form or report by the employer or its insurance company (including the EMPLOYER’S FIRST NOTICE OF INJURY or FORM 2) will not toll any of the limitation periods discussed above.

STATUTORY NOTICE & REPORTING REQUIRMENTS FOR OKLAHOMA EYE INJURY, VISION & HEARING LOSS WORK COMP CLAIMS: Oklahoma City & Tulsa Workers’ Compensation Court rules provide the following notice requirements concerning eye injury, vision and hearing loss cases:

SINGLE EVENT & TRAUMATIC EYE INJURY & HEARING LOSS CLAIMS: unless an employee gives oral or written notice to his or her employer within thirty (30) days of the date a traumatic eye injury or sudden vision or hearing loss caused by his or her work occurs, or the worker receives medical attention from a doctor during the thirty-day period from the date such a single event eye or hearing loss injury occurred, the rebuttable presumption shall be that the eye, vision or hearing loss injury was not work-related;
CUMULATIVE-TRAUMA AND REPEATED EXPOSURE VISION & HEARING LOSS CASES: Unless an employee gives oral or written notice to his or her employer within ninety (90) days of the employee’s termination, resignation, lay-off or other separation of employment, there is a rebuttable presumption that an occupational exposure or cumulative trauma hearing loss or eye injury did not arise out of and in the course of employment. Such

NOTE: the above-descibed presumptions can only be overcome by a preponderance of the evidence submitted to the Oklahoma City or Tulsa Workers’ Compensation Court by the injured worker &/or his attorney or lawyer.

MEDICAL TREATMENT FOR EYE INJURY, VISION & HEARING LOSS CASES

EMPLOYER’S RIGHT TO INITIALLY SELECT TREATING DOCTOR: Oklahoma Workman’s Compensation Law provides that within seven (7) days of actual knowledge of a traumatic eye injury or significant hearing or vision loss sustained by his or her employee, an Oklahoma employer must provide that employee reasonable and necessary medical care with a doctor of the employer’s choice. However–if the employer fails or neglects to provide medical treatment within seven (7) days after actual knowledge is received of his or her employee’s work-related serious eye injury, vision or hearing loss, the injured employee &/or his or her attorney or lawyer can select a doctor to provide medical treatment for his or her hearing loss or traumatic eye injury at the expense of the employer &/or its worker’s comp insurance company.

NOTE: An injured worker, or another in the employee’s behalf, can always obtain emergency treatment for a traumatic eye or ear injury, at the expense of his or her employer. Pre-authorization is not required.

WORKER’S RIGHT TO CHANGE HIS OR HER TREATING DOCTOR: Where the injured employee is not covered by a certified workplace medical plan (or “CWMP”, discussed in full elsewhere on this site) the employer can select the treating doctor as described above for his or her worker’s serious eye injury or traumatic vision or hearing loss. However–the OKC or Tulsa Workers’ Compensation Court on proper & timely application of the injured worker &/or his or her attorney or lawyer must order a one-time change of treating doctor for a worker’s eye injury or vision or hearing loss case. The following procedure applies to a worker’s application for a change of treating doctor:

the employee &/or his or her attorney or lawyer lists 3 doctors qualified to treat the worker’s serious eye injury or vision or hearing loss;
The employer &/or his or her workers’ compensation insurance company can agree to one of the doctors listed by the employee or submit its own list of three (3) physicians;
If the employer and injured worker cannot agree on a doctor, the Oklahoma City or Tulsa Workers’ Compensation Court will select a physician who is qualified to treat the worker’s eye injury or vision or hearing loss.

CONTINUING MEDICAL MAINTENANCE FOR EYE INJURY, VISION & HEARING LOSS CASES: Oklahoma City & Tulsa Workers’ Compensation Court rules provide that unless recommended by the treating doctor at the time the injured worker reaches maximum medical improvement (or by an independent medical examiner selected by the parties’ attorneys or the Comp Court), continuing medical maintenance** cannot be awarded by the Oklahoma Workers’ Compensation Court for an employee’s serious eye injury or vision or hearing loss case. In this regard–Upon proper & timely request of any party or such parties’ attorney or lawyer, the Oklahoma City or Tulsa Workers’ Compensation judge will appoint an independent medical examiner (or “CIME”) to determine the nature and extent of an injured worker’s need for continuing medical maintenance for his or her traumatic eye injury or hearing or vision loss. In any case the issue of continuing medical maintenance may be reviewed by the OKC or Tulsa Workman’s Comp Court at any time. Finally–The employer and its insurance company will not be responsible for continuing medical maintenance or pain management treatment not previously ordered by the Oklahoma Workers’ Compensation Court or approved in advance by said employer or its insurance company.

**NOTE: The Tulsa & OKC Workers’ Comp Court has determined that “Continuing medical maintenance” means medical treatment that is reasonable and necessary to maintain an injured worker’s condition resulting from his or her traumatic eye injury or vision or hearing loss claim after such employee is found to have reached his or her maximum medical improvement (or “MMI”). The Court has further determined that in Oklahoma continuing medical maintenance does NOT include diagnostic testing (such as an MRI, CT scan, myelogram, discogram, X-ray, and the like), surgery, injections, counseling, physical therapy, or pain management devices or equipment, unless specifically authorized by the Oklahoma City or Tulsa Workers’ Compensation Court in advance of such treatment.

ONGOING MAINTENANCE, REPLACEMENT & SERVICE OF MEDICAL DEVICES (i.e. hearing aids, prosthetic eyes, lens, glasses and the like) RELATED TO WORKERS’ COMP VISION LOSS, EYE INJURY(ies), & HEARING IMPAIRMENT CASES: For Oklahoma Workers’ Compensation traumatic eye injuries, vision &/or hearing loss or impairment cases resulting in the need and use of any medical device (such as a prosthetic eye, hearing aid, glasses or replacement lens) the Oklahoma City & Tulsa Workers’ Compensation Court will, upon proper and timely application, order ongoing maintenance and service for the medical device in situations including, but not limited to, medical device battery replacement, ongoing medication refills related to the medical device, medical device repair and even medical device replacement if necessary.

TEMPORARY TOTAL DISABILITY (“TTD”) FOR VISION & HEARING LOSS CASE

COMMENCEMENT OF WORKER’S TEMPORARY TOTAL DISABILITY BENEFITS OR CASH SETTLEMENT FOR SERIOUS EYE INJURY, VISION OR HEARING LOSS CASES: Oklahoma City & Tulsa Workman’s Compensation Court rules provide that upon proper & timely notice that its employee has suffered a serious traumatic eye injury, vision impairment or hearing loss, the employer has an obligation under Oklahoma Workers’ Compensation law to commence temporary total compensation if the injured worker is unable to return to work for more than seven (7) calendar days. To be clear–it is not necessary for there to be any formal order of the Tulsa or Oklahoma City Workers’ Compensation Court directing the employer to pay these cash benefits. In fact, according to Oklahoma law, once an injured employee &/or his or her attorney or lawyer properly files the worker’s Form 3 TTD compensation must be provided to the injured worker for his or her traumatic eye injury, hearing loss or vision impairment case unless the employer has timely denied the workers’ comp claim by filing a Form 10 which specifically notes the denial of the employee’s claim for temporary total disability compensation.

NOTE: Payment of a temporary total disability check or a temporary partial disability settlement for an eye injury or hearing loss impairment will not constitute admission by the employer or the insurer company as to liability, compensation rate or any other material fact.

AMOUNT OF WORKER’S TEMPORARY TOTAL DISABILITY (“TTD”) CHECK FOR SERIOUS EYE INJURY, VISION LOSS OR HEARING IMPAIRMENT CASES: Oklahoma City & Tulsa Workers’ Comp Court rules provide that in cases of temporary total disability, the injured employee will be paid seventy percent (70%) of his or her average weekly wages, up to a weekly maximum amount (currently set at the amount of $735), during any period the worker is wholly unable to work as a result of his or her traumatic eye injury, vision or hearing loss.

DURATION OF OKLAHOMA WORKERS’ COMPENSATION WEEKLY CASH TEMPORARY TOTAL DISABILITY PAYMENTS: Under Oklahoma Workers’ Compensation law total payments of compensation for temporary total disability will not exceed three years, except if either the Oklahoma City or Tulsa Workers’ Compensation Court makes a finding of a consequential injury. In that event, the Court can order an additional period of temporary total disability not to exceed fifty-two (52) weeks.

TERMINATION OF TTD FOR EYE INJURY, VISION LOSS AND HEARING IMPAIRMENT CASES: When the injured worker is released from active medical treatment by his or her treating doctor the employer is entitled to terminate temporary total disability by notifying the employee &/or his or her attorney or lawyer. If there is no objection by the injured employee &/or his or her attorney or lawyer within ten (10) days, the hurt worker’s TTD check will be terminated. If, however, an objection is filed by the employee within ten (10) days, the Court will set the matter within twenty (20) days for a determination if temporary total disability compensation will continue or be terminated.

NOTE: A worker’s TTD check may always be terminated at any time for any reason (or even no reason) if the worker &/or the employee’s attorney or lawyer has no claim for compensation (FORM 3) on file with either the Oklahoma City or Tulsa Workers’ Compensation Court for such workers traumatic eye injury, hearing loss or vision impairment case.

PENALTIES FOR LATE OR NON-PAYMENT OF TTD BENEFITS FOR TRAUMATIC EYE INJURY, HEARING LOSS AND VISION IMPAIRMENT CASES: If an Oklahoma employer has actual notice of his or her employee’s eye injury, work-related vision loss or hearing impairment and such injury or loss is not disputed–and a weekly temporary total disability benefit payment check is not commenced within ten (10) days, the workers’ compensation insurance company must pay to the injured worker a penalty of fifteen percent (15%) of the unpaid or delayed weekly settlement.

PERMANENT PARTIAL DISABILITY SETTLEMENT: EYE & HEARING LOSS CASES

The OKC & Tulsa Workers’ Compensation Court has determined that for traumatic eye injuries and hearing and vision loss cases the concept of “permanent partial impairment” means any anatomical abnormality or loss of use of an injured worker’s vision or hearing after he or she attains his or her point of maximum medical improvement (or “MMI”) which loss can be measured or otherwise evaluated by a doctor. In Oklahoma all medical evaluations of permanent impairment must be supported by objective medical evidence.

The Oklahoma City & Tulsa Workers’ Compensation Court has determined that under the Oklahoma Workers’ Compensation Act a worker’s eye (and for purposes of the Multiple Injury Trust Fund only-hearing impairment) is a ”scheduled member” or “member” for determination of his or her permanent partial disability settlement.

PERMANENT PARTIAL DISABILITY SETTLEMENT OR AWARDS FOR OKLAHOMA EYE IMPAIRMENT OR LOSS CASES: The Tulsa & Oklahoma City Workers’ Compensation Court has determined that for the total loss of a worker’s eye, he or she will be entitled to a permanent partial disability settlement or award computed at two hundred seventy-five (275) weeks at the injured employee’s permanent partial disability rate. The Tulsa and OKC Work Comp Court has further determined that permanent loss of use of a worker’s eye should likewise be considered as the equivalent of the loss of such employee’s eye.

PERMANENT PARTIAL DISABILITY SETTLEMENT OR AWARDS FOR OKLAHOMA HEARING LOSS & IMPAIRMENT CASES: The Oklahoma City and Tulsa Workers’ Compensation Court has determined that the objective evidence necessary to prove physical or anatomical impairment in an Oklahoma occupational hearing loss case must 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. As with any Oklahoma Workers’ Compensation case, all medical opinions addressing permanent impairment and disability in a hearing loss and impairment case must be stated within a reasonable degree of medical certainty.

AMOUNT OF PERMANENT PARTIAL DISABILITY SETTLEMENTS OR AWARDS FOR OKLAHOMA HEARING LOSS & IMPAIRMENT CASES: The OKC & Tulsa Workers’ Compensation Court has determined that the following cash settlement amounts will be awarded in Oklahoma for hearing loss and impairment cases:

CASH SETTLEMENT AWARDS FOR TOTAL HEARING LOSS &/or DEAFNESS IN BOTH EARS: For total deafness from industrial causes resulting from occupations which are hazardous to a worker’s hearing, accident or sudden trauma, the affected employee is entitled to three hundred thirty (330) weeks from the Oklahoma Workers’ Compensation Court.
CASH SETTLEMENT AWARDS FOR TOTAL HEARING LOSS &/or DEAFNESS IN ONLY ONE EAR: For total deafness of one ear from industrial cause, including occupations which are hazardous to hearing, accident or sudden trauma, an injured worker will be awarded one hundred ten (110) weeks by the Oklahoma Workers’ Compensation Court.

USING THE AMERICAN MEDICAL ASSOCIATION’s GUIDES FOR THE EVALUATION OF PERMANENT IMPAIRMENT FOR DETERMINING PERMANENT DISABILITY SETTLEMENT AMOUNTS FOR PARTIAL HEARING LOSS The Oklahoma City & Tulsa Workers’ Compensation Court has determined that any doctor evaluating an injured worker for a partial hearing loss must only evaluate said 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 hearing loss or impairment injury. In fact–the Oklahoma Workers’ Comp Court has uniformally held that “the guides” are the exclusive basis for testimony and conclusions with regard to deafness or hearing impairment before the Court.

xxxxxxxxxxxxxxxxxxxxxxxxxxxx

and all evaluations shall include an apportionment of injury causation.for the permanent partial loss of hearing or sight of an eye, seventy percent (70%) of the employee’s average weekly wage during that portion of the number of weeks in the foregoing schedule provided for the loss of sight of an eye which the partial loss of use thereof bears to the total loss of hearing or sight of an eye.

The State Industrial Court previously had published the Snellen Chart as the criteria for measuring and calculating the percentage of eye impairment in a single eye. This method of rating eye injuries has been accepted and approved by the ophthalmological Section of the American Medical Association. Physicians may continue to use these criteria in the future. The workers compensation act privides that eye impairment is a scheduled member loss. That section states that loss of an eye shall be compensable by the payment of a specified number of weeks of permanent partial disability benefits. however, industrial blindness, in both eyes, according to 85 section 3 3(20), means the claimant is permanently and totally disabled by statutory definition regardless of claimant’s capacity to earn any wages in any occupation. Therefore, any computation or conversion of any loss of vision in one eye into the whole man (as done by the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”) is clearly incorrect according to Oklahoma law. However, partial loss of vision in both eyes may be combined into the whole man provided that the physician states the evaluation of the loss of each eye separately and then evaluates the combination.

the physician should consult with the “Guides” regarding the equipment necessary to test the function of eyes and for the methods of evaluation. the following Snellen Chart may then be used for computing the percentage if visual efficiency. It should be noted that all measurements shall be based upon uncorrected vision.

A. Expert medical testimony may be offered by:

1. A verified or declared written medical report signed by the physician;

2. Deposition; or

3. Oral examination in open Court.

B. The Workers’ Compensation Court, recognizing that it is costly and time-consuming to have physicians appear at trial to testify, encourages the production of medical evidence by verified or declared written medical reports. The Court encourages but does not require the report to include the following information, as applicable:

1. A complete history of the claimant, including all previous relevant or contributory injuries with a detailed description of the present injury.

2. The complaints of the claimant.

3. The physician’s findings on examination, including a description of the examination and any diagnostic tests and x-rays.

4. The date and cause of the alleged injury and whether, in the physician’s opinion, it is job-related.

5. The period during which the claimant was temporarily and totally disabled and, if such temporary total disability has ended, the date on which it ended. If temporary total disability continues at the time of the report, the physician should so state.

6. A finding which apportions the percentage of claimant’s pre-existing permanent partial disability, if any.

7. Whether claimant is capable of returning to light duty or full duty work, and what physical restrictions, if any, should be imposed on the claimant, either temporarily or permanently.

8. Whether the claimant has reached maximum medical improvement.

9. Whether the claimant is able to return to the claimant’s former employment or is a candidate for vocational rehabilitation.

10. Whether the claimant is in need of continuing medical care, and if so, the type of continuing medical care needed.

11. The existence or extent of any permanent impairment.

12. An apportionment of injury causation.

13. Any other detailed factors upon which the physician’s evaluation of permanent impairment is based.

C. Medical opinions concerning the existence or extent of permanent impairment must be supported by objective medical evidence of permanent anatomical abnormality, and, in appropriate cases, may include medical evidence that the ability of the employee to earn wages at the same level as before the injury has been permanently impaired. Medical opinions supporting employment as the major cause of occupational disease or age-related deterioration or degeneration, must be supported by objective medical evidence. “Objective medical evidence” includes medical testimony that rests on reliable scientific, technical or specialized knowledge, and assists the Court to understand the evidence or to determine a fact in issue.29. “Maximum medical improvement” means that no further material improvement would reasonably be expected from medical treatment or the passage of time;

D. The medical report must be verified or contain a written declaration, made under the penalty of perjury, that the report is true. The following form of declaration is suggested: “I declare under penalty of perjury that I have examined this report and all statements contained herein, and to the best of my knowledge and belief, they are true, correct and complete.”

E. A claim for compensation for permanent disability must be supported by competent medical testimony which shall be supported by objective medical evidence and which shall include an evaluation by the treating physician or an independent medical examiner, as prescribed in 85 O.S., Section 17 and these rules, stating an opinion of the claimant’s percentage of permanent impairment and whether or not the impairment is job-related and caused by the accidental injury or occupational disease. The treating physician’s evaluation, if any, shall be issued within fourteen (14) calendar days of the treating physician’s release of the injured worker from active medical treatment and shall be sent to the parties within seven (7) calendar days of issuance. Unless the treating physician’s evaluation is sent to the parties as required by this rule, there shall be deemed to be no treating physician evaluation.

F. 1. Upon receipt of the treating physician’s or independent medical examiner’s medical report, the party-recipient may object to the report on any of the following grounds by giving written notice to all parties and to the Court within ten (10) days or such objections shall be deemed waived:

a. object to the hearsay nature of the report and request cross-examination of the physician by deposition; or

b. object to the treating physician’s medical report by filing a Form 13 requesting the appointment of an independent medical examiner pursuant to 85 O.S. Section 17(A)(2) and Section 17(D)(3).

2. All other objections to the medical report shall be raised at the time of trial or shall be waived.

G. Within ten (10) days after a hearsay objection and request for cross-examination, arrangements for the taking of the physician’s deposition shall be made by the offering party; provided, however, if the objection is to an independent medical examiner’s report, arrangements for the deposition shall be made as provided in Rule 28(D). The party requesting the deposition testimony of any such physician, shall be responsible for the reasonable charges of the physician for such testimony, preparation time, and the expense of the deposition.

The court recognizes that visual acuity for distance and near is only one of the functions of the eye. Therefore, the physician may wish to consider the visual fields and ocular motility with absence of diplopia. Evaluation of visual impairment may be based upon all three of these functions. Although they are not equally important, vision is imperfect without the coordinated function of all three.

A physician may deviate from this method of evaluation or may use some other recognized method of evaluation PROVIDED the deviation or the method of evaluation is fully explained.

Oklahoma case law has defined industrial blindness as being 20/200. Therefore, the court has modified the Snellen Chart to show 100 percent loss to an eye at 20/200 even though the Chart whould normally show such loss to be 80 percent. Likewise, it is not necessary to show the percentage loss of vision above 20/200 since there can be no loss greater than 100 percent.

The “Guides to the Evaluation of Permanent Impairment” of the American Medical Association shall be used to evaluate permanent impairment caused by hearing loss where the last exposure occurred on or after June 1, 1987.

Hearing loss in only one ear shall be rated under the AMA Guides as a monaural hearing loss. Hearing loss in both ears shall be rated under the AMA Guides as a binaural hearing loss and shall not be converted to a whole person rating. The guides or modifications thereto or alternative system or method of evaluating permanent impairment or modifications thereto shall be the exclusive basis for testimony and conclusions with regard to deafness or hearing impairment.

Loss of Use: Permanent loss of use of a eye shall be considered as the equivalent of the loss of such 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 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.

The compensation for the foregoing specific injuries shall be in lieu of all other compensation except the benefits provided in section 14 & 16.

Where a compensable injury results in the loss of one or more eyes 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 caurse 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.

A. The “Guides to the Evaluation of Permanent Impairment” of the American Medical Association, or any alternative method approved pursuant to 85 O.S., Section 333(C) that deviates from or is used in place of or in combination with the Guides, in effect on the date of injury, shall be used to evaluate permanent impairment caused by hearing loss where the last exposure occurred on or after August 26, 2011. Objective medical 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.

B. Hearing loss in only one ear shall be rated under the AMA Guides as a monaural hearing loss. Hearing loss in both ears shall be rated under the AMA Guides as a binaural hearing loss and shall not be converted to a whole person rating.

The determination of permanent impairment or disability shall be the responsibility of the Workers’ Compensation Court. 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 this act, 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 of this act 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.32. “Objective medical evidence” means evidence which meets the criteria of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto. Objective findings are those findings which cannot come under the voluntary control of the patient. When determining physical or anatomical impairment, neither a physician, any other medical provider, a judge of the Workers’ Compensation Court, nor the courts may consider complaints of pain. For the purpose of making physical or anatomical impairment ratings to the spine, physicians shall use criteria established by the American Medical Association guides or modifications thereto as approved by the Legislature. Objective evidence necessary to prove physical or anatomical impairment in occupational hearing loss cases shall be established by medically recognized and accepted clinical diagnostic methodologies, including, but not limited to, audiological tests that measure air and bone conduction thresholds and speech discrimination ability. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty;

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 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 who may adopt the recommendation in part or in whole. The adopted method or system 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 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, 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, 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.

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 for one extension of temporary total disability compensation and the Court 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 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 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%) 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 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 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.

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, 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.

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 Court 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 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 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.

A. The criteria for measuring and calculating the percentage of eye impairment shall be pursuant to this rule. A physician may deviate from the method of evaluation provided for in this rule or may use some other recognized method of evaluation, if the deviation or the method of evaluation is fully explained.

B. Loss or loss of use of an eye is subject to the schedule of compensation provided in 85 O.S., Section 333(E). Industrial blindness (a visual acuity for distance of 20/200), in both eyes, constitutes statutory permanent total disability per 85 O.S., Section 308(36), regardless of the employee’s capacity for gainful employment. Permanent impairment for loss of vision in one eye shall not be converted to the body as a whole. Permanent impairment for loss of vision in both eyes may be combined into impairment to the body as a whole only if the physician rates the loss of each eye separately and then evaluates the combination. It is not necessary to show the percentage of permanent impairment for loss of vision above industrial blindness since there can be no loss greater than one-hundred percent (100%).

C. Physicians should consult the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” regarding the equipment necessary to test eye function and for methods of evaluating vision loss. The following Snellen Chart may then be used to compute the percentage of visual efficiency and percentage of permanent eye impairment. Evaluation of visual impairment may be based upon visual acuity for distance and near, visual fields and ocular motility with absence of diplopia.

D. All measurements shall be based upon corrected vision; provided, implantation of an intraocular lens is not a “correction” to the claimant’s vision within the purview of this rule. When an artificial lens is surgically implanted to replace the removed lens, it is a permanent restorative device and determination of impairment to vision is based on anatomical or functional loss of sight remaining after the lens is implanted.

SNELLEN CHART

Snellen Notation for distance

Snellen Notation for near

Percentage of Visual Efficiency

Percentage Loss of Vision (Okla.)

Comp. Rate in Weeks (Okla.) For injuries occurring on and after 8-26-11

20/20

14/14

100.0

0.0

20/25

14/17.5

95.7

4.3

11.83

20/30

14/21

91.7

8.5

23.38

20/35

14/24.5

87.5

12.5

34.38

20/40

14/28

83.6

16.4

45.10

20/45

14/31.5

80.0

20.0

55.0

20/50

14/35

76.5

23.5

64.63

20/60

14/42

69.9

30.0

82.50

20/70

14/49

64.0

36.0

99.0

20/80

14/56

58.5

41.5

114.13

20/90

14/63

53.4

46.6

128.15

20/100

14/70

48.9

51.1

140.53

20/120

14/84

40.9

59.1

162.53

20/140

14/98

34.2

65.8

180.95

20/160

14/112

28.6

71.4

196.35

20/180

14/126

23.9

76.1

209.28

20/200

14/140

20.0

100.0

275.0¹

(Industrial Blindness)

Source: 85 O.S. 2011, Section 333(E).

A. 1. A record of the terms and conditions of an approved Joint Petition settlement and the claimant’s understanding concerning the effect of the settlement must be made and transcribed at the respondent’s expense.

2. In no instance shall the total attorney’s fee amount exceed the maximum attorney’s fee allowable by law.

3. A file-stamped copy of an approved Joint Petition settlement shall be mailed by the Court to all unrepresented parties and attorneys of record.

B. No settlement of a claim on Joint Petition shall be made upon written interrogatory or deposition except in cases where the claimant is currently engaged in the military service of the United States, is outside of the state, is a nonresident of Oklahoma, or in cases of extreme circumstances.

C. No Joint Petition settlement may be presented until competent medical evidence is ready for admission.

D. The transcript of the Joint Petition settlement shall be prepared and provided to the parties within ninety (90) days. If any respondent or insurance carrier prefers to be billed immediately for the transcript, it may request the court reporter to determine the charge at the time the record is made. The court reporter may then contract for services rendered and submit a statement in conformity with the agreement.

E. Medical reports and other exhibits submitted in support of a Joint Petition settlement will not be transcribed unless the parties request otherwise. When said reports or exhibits are not transcribed, the original exhibits or duplicate copies thereof shall be affixed to the original transcript and placed in the Court file.

F. Joint Petition settlements between the claimant and the respondent shall not be deemed an adjudication of the rights between the medical provider and the employer as to charges incurred by the medical provider prior to the date of the Joint Petition settlement.

G. Within seven (7) days of the date a medical provider provides initial treatment for a work-related accident, the medical provider shall provide notice in writing to the Workers’ Compensation Court (but only if a Form 3, 3A or 3B has been filed with the Court) and in all cases shall provide notice in writing to the patient’s employer, and if known, the employer’s insurance carrier. If the medical provider fails to provide the required notification, the medical provider forfeits any rights to future notification, including those circumstances where a case is joint petitioned, unless said medical provider is actually known to the respondent or is listed by the claimant.

H. At the time of the joint petition, the claimant shall provide to the respondent a list of all medical providers of which the claimant is aware. Within ten (10) days from the date the joint petition is file-stamped by the Court, the respondent shall send notice of the joint petition to all medical providers listed by the claimant, to all medical providers providing written notice to the employer and, if known, the employer’s insurance carrier, and to any other medical providers known to the respondent.

I. Once a joint petition is filed, the claimant is responsible for payment of any future medical benefits, and informing any future medical providers that the case has been joint petitioned, and that the respondent shall not be responsible for payment of said medical bills.

In case of an injury resulting in serious and permanent disfigurement, compensation shall be payable in an amount to be determined by the Workers’ Compensation Court, but not in excess of Fifty Thousand Dollars ($50,000.00). An award for permanent disfigurement shall not be made for a part of the body for which permanent partial impairment is awarded.

Where 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 Court in the treatment and rehabilitation of the injured worker for the lifetime of the worker. Where 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.

APPENDIX “A”

Text of Former Rule 37: Hearing Impairment

The following criteria for measuring and calculating monaural and binaural hearing impairment has been prepared by the Workers’ Compensation Court from information provided by the American Academy of Ophthalmology and Otolaryngology, the 1977 edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” and local physicians. The Court is grateful for the use of this material and such assistance.

The Workers’ Compensation Act provides, in 85 O.S. Section 22(3), that hearing impairment is a scheduled member loss and specific provision is made for compensating binaural hearing impairment. That section states that deafness in one ear shall be based upon the claimant’s percentage of monaural hearing impairment multiplied by 100 weeks of compensation; while deafness in both ears shall be based upon the claimant’s percentage of binaural hearing impairment multiplied by 300 weeks of compensation. Therefore, any computation or conversion either of monaural or binaural hearing impairment to the whole man (as done by the “Guides”) is clearly incorrect according to Oklahoma law.

In using these criteria, certain abbreviations and definitions should be kept in mind.

1. The abbreviation for decibels is dB.

2. Frequency is measured in Hertz, abbreviated Hz.

3. Hearing level for pure tone is the number of decibels (dB), that the listener’s threshold of hearing lies above the standard audiometric zero for that frequency. It is the reading on the so-called “hearing threshold level” (hearing loss) dial of an audiometer that is calibrated according to American National Standard Institute, Inc., June 19, 1969 (hereinafter referred to as ANSI-1969.

¹ )

4. Estimated hearing level for speech is the simple average of hearing levels at five frequencies, 500, 1,000, 2,000, 3,000 and 4,000 Hz. Note that this method includes the hearing level at 3,000 and 4,000 Hz which were not included in the 1977 edition of the “Guides”. Therefore, the tables on pages 105 and 106 of the “Guides” cannot be used.

Ideally, hearing impairment should be evaluated in terms of ability to hear everyday speech under everyday conditions. The ability to hear sentences and to repeat them correctly in a quiet environment is taken as satisfactory evidence for correct hearing of everyday speech. Because of present limitations of speech audiometry, the hearing loss for speech is estimated from measurements with a pure tone audiometer. However, it is recognized that impairment at the higher frequencies may result in a listener’s inability to hear some consonants, and, therefore to hear only parts of words. To such a person, others may appear to be mumbling. A typical complaint is that the listener cannot hear when two or more people are talking at once or when there is competing background noise. Such a loss is compensable. For this reason, the Court has added the measurement of hearing impairment at 3,000 Hz and 4,000 Hz. Testing above this frequency is optional.

In order to evaluate the hearing impairment, it must be recognized that the range of impairment is not nearly as wide as the audiometric range of human hearing. Audiometric zero, which is presumably the average normal threshold level, is not the point at which impairment begins. If the average hearing level of 500, 1,000, 2,000, 3,000 and 4,000 Hz is 25 dB or less, usually no impairment exists in the ability to hear everyday speech under everyday conditions. At the other extreme, however, if the average hearing level at 500, 1,000, 2,000, 3,000 and 4,000 Hz is over 91.7 dB, the impairment for hearing everyday speech should be considered total. For every decibel that the estimated hearing level for speech exceeds 25 dB ² , 1.5 percent of monaural hearing impairment is allowed up to a maximum of 100 percent. This maximum is reached at 91.7 dB.

TO DETERMINE HEARING IMPAIRMENT

1. Test each ear separately with a pure tone (properly calibrated ANSI-1969) audiometer and record in decibels the hearing level at (a) 500 Hz, (b) 1,000 Hz, (c) 2,000 Hz, (d) 3,000 Hz and (e) 4,000 Hz. Since the use of sums is feasible only if each is the sum of five original values, it is necessary that the procedure yield a hearing level for each frequency in every listener. The following rules apply for extreme value: (a) If the loss at a given frequency is so great that hearing level is beyond the range of the audiometer, the level shall be taken as 100 dB for that frequency, (b) If the hearing of a given frequency is better than normal, the level shall be taken as 0 dB for that frequency.

2. As previously noted, the tables in the “Guides” cannot be used because they do not use a decibel loss at 3,000 Hz and 4,000 Hz. Therefore, the Court has adopted the original mathematical formula used by the “Guides” but has modified it only so as to reflect the measurement of hearing at five levels rather than three. That formula is as follows:

S – (5 X T)

_{x 1.5 = Percentage of Monaural Impairment}5

This formula uses the following definitions of terms:

S equals the sum of the dB loss at each of the five tested frequencies (Hz).

T is the average normal threshold at which hearing impairment begins (25 dB).

Therefore, T is defined as 25. ³

For each 1 dB loss of the average of the five tested frequencies, there is a 1.5 percent monaural hearing impairment. Therefore, the following example shows how the formula applies. Assume that the audiogram shows the following results:

(a) 500 Hz 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz

(b) 40 dB 50 dB 50 dB 55 dB 60 dB 255 dB

Add the five figures in column (b) which total 255 dB. This equals S and should be inserted in the formula. The calculation then is as follows:

255 – (5 x 25)

_{x 1.5 = 39% of Monaural Impairment}5

3. To convert the two separate calculations of monaural impairment to binaural impairment, use the following formula:

(5 x L) + W

_{= Binaural Impairment}6

This formula uses the following definitions of terms:

L equals the percent of monaural impairment in the claimant’s LEAST impaired ear.

W equals the percent of monaural impairment in the claimant’s WORST impaired ear.

Therefore, the following example shows how the formula applies. Assume that the claimant has 20 percent impairment in his WORST impaired ear and 10 percent impairment in his LEAST impaired ear. The calculation then is as follows:

(5 x 10) + 20

_{= 11.7% Binaural Impairment}6

A physician may deviate from this method of evaluation or may use any other recognized method of evaluation PROVIDED that he fully explains the basis of his deviation or the method of his evaluation.

Adopted Aug. 28, 1981.

FOOTNOTES

¹ Prior to the adoption of this standard, audiometers were to be calibrated according to American Standard Z 24.5-1951 (ASA-1951). It is recognized that for some time there will be in use some audiometers calibrated to the ASA-1951 values and some calibrated to ANSI-1969 values. Each record of an audiometric test should include a specific indication as to whether it is based on the correct ANSI-1969 or the ASA-1951 reference levels.

² If the audiometer is calibrated according to ASA-1951, then the evaluation is based upon every decibel that the estimated hearing level for speech exceeds 15 dB.

³ If the audiometer is calibrated according to ASA-1951, then T is defined as 15.

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 Court, 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 Court may order mediation in any case in which the 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 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 Court. A certified mediator may be an attorney or non-attorney 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 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 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.

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 shall hire or contract for a Vocational Rehabilitation Director to oversee the vocational rehabilitation program of the Workers’ Compensation Court. 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 if it is appropriate for a claimant to receive vocational rehabilitation training or services. If appropriate, the Court 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.

D. Whenever it is apparent to the Court that the employee’s injury will prevent the employee from returning to his or her former employment, the Court 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) weeks. This period may be extended for an additional fifty-two (52) weeks or portion thereof by special order of the Court, after affording the interested parties an opportunity to be heard. A request for vocational rehabilitation services or training may be filed with the Administrator 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 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) weeks, which may be extended by the Court 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.

. 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 or the Administrator of the Workers’ Compensation Court and filed with the Administrator. In cases in which the employee is not represented by legal counsel, a judge of the Court or the Administrator 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 must be noted by appendix to the Compromise Settlement or on a form created for such purpose by the Administrator. 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.

. Awards for permanent partial impairment shall be made for the total number of weeks of compensation which the Workers’ Compensation Court 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 of this act. All awards shall be paid by periodic installments as determined by the Court. 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. 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 of this act. 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 of this act. 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.36. “Permanent total disability” means incapacity, because of accidental injury or occupational disease, to earn wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation. Loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability;