Case high­lights flaws of work comp sys­tem

The Oklahoman - - OPINION -

AN old joke about Ok­la­homa’s work­ers’ com­pen­sa­tion sys­tem was that it was a con­sti­tu­tion­ally sanc­tioned sys­tem of fraud. A re­cent Ok­la­homa Supreme Court case shows why that line packed a punch.

On Feb. 12, 2014, Bran­don Gibby fell off a pal­let jack and in­jured his right wrist and left knee while work­ing for Hobby Lobby. The em­ployer pro­vided him tem­po­rary to­tal dis­abil­ity and med­i­cal ben­e­fits. The tem­po­rary to­tal dis­abil­ity ben­e­fits ended April 29, 2014, when Gibby re­turned to work. When Gibby sought per­ma­nent par­tial dis­abil­ity ben­e­fits, Hobby Lobby re­sisted be­cause he had missed mul­ti­ple med­i­cal ap­point­ments with­out excuse. Un­der state law, this was grounds to deny fur­ther work­ers’ com­pen­sa­tion ben­e­fits. In re­sponse, Gibby sued.

The Supreme Court sided with Gibby in a 5-3 de­ci­sion, say­ing fault can­not be con­sid­ered in a no-fault sys­tem. But the facts of the case show why so many Ok­la­homans view the state’s work­ers’ com­pen­sa­tion sys­tem with skep­ti­cism.

State law al­lowed work­ers’ comp ben­e­fit re­cip­i­ents to miss med­i­cal ap­point­ments for “ex­tra­or­di­nary cir­cum­stances beyond the em­ployee’s con­trol.” The ma­jor­ity opin­ion ac­knowl­edges, “A trial was held at which Claimant at­tempted to demon­strate ex­tra­or­di­nary cir­cum­stances for miss­ing three sched­uled med­i­cal ap­point­ments. The ad­min­is­tra­tive law judge found none …”

The three jus­tices who dis­sented (on tech­ni­cal grounds) went into greater de­tail.

Gibby was in­jured Feb. 12, 2014. On June 2, 2014, he was sched­uled to see a doc­tor for ad­di­tional treat­ment “but did not show up for the ap­point­ment.” Med­i­cal notes showed the man didn’t call and was charged a no-show fee. Gibby claimed he over­slept and resched­uled the ap­point­ment, but the dis­sent­ing opin­ion notes “the record does not in­clude any med­i­cal notes re­flect­ing the resched­uled visit.”

When the man saw an­other doc­tor on June 24, 2014, that doc­tor’s notes stated that Gibby “ap­pears to be do­ing fine.” Gibby sub­se­quently re­quested an­other physi­cian.

On Aug. 11, 2014, Gibby’s new doc­tor rec­om­mended ther­apy, brac­ing, and anti-in­flam­ma­to­ries and es­ti­mated Gibby would reach max­i­mum med­i­cal im­prove­ment in two to three months. Gibby was sched­uled for a fol­low-up ap­point­ment with that doc­tor on Sept. 12, 2014 “but did not at­tend the ap­point­ment.” Gibby tes­ti­fied he got lost in down­town Ok­la­homa City. He again claimed to have resched­uled the ap­point­ment, but the dis­sent­ing jus­tices noted “noth­ing in the record sub­stan­ti­ates that tes­ti­mony.”

Gibby was sched­uled to see that same doc­tor again on Oct. 20, 2014, but was again a no-show. The doc­tor’s notes for that visit stated, “Bran­don was sched­uled to be seen to­day. He has had mul­ti­ple no-shows, a to­tal of four. I last saw him in Au­gust. I am as­sum­ing his knee must be fine or he would be show­ing up for his ap­point­ments.”

Gibby’s at­tor­ney called the court rul­ing “a sweet vic­tory for work­ing peo­ple be­cause that sec­tion of the 2013 law was ab­so­lutely puni­tive in na­ture.” Some­how, we doubt most Ok­la­homans who work for a liv­ing would agree.

Most Ok­la­homans would pre­fer to be able to work. In con­trast, this plain­tiff ap­pears to have had less in­ter­est in med­i­cal treat­ment than in milk­ing work­ers’ comp pay­ments for all they were worth. The case high­lights why Ok­la­homans have long sup­ported re­form­ing the sys­tem, and why ad­di­tional re­forms are still needed.

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