Shepard v. Dept. of Corrections – Continuing Medical Care

A fair number of workers’ compensation claims deal not with the initial injury, but with ongoing injuries. In some cases, workers seek an increase in benefits to cover a worsening condition. Other times, companies file a request to re-open a case to assert the employee is no longer disabled, or at least not as severely as initially determined.
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In either situation, the worker has to be prepared to effectively argue the extent of their ongoing injuries and the necessity and reasonableness of continuing treatments and medications.

In the recent case of Shepard v. Dept. of Corrections, the Oklahoma Supreme Court ruled an employer unconstitutionally applied new workers’ compensation law that restricted a worker’s access to medical treatment. (Of course, this is indicative of a greater problem, detailed recently in investigations by OSHA and ProPublica, which involves the dramatic slashing of workers’ compensation benefits in 30 states in the last 10 years). Nonetheless, worker’s injury occurred prior to the passage of the more restrictive new law, and her employer wasn’t allowed to argue application of the new law in her case.

According to court records, plaintiff was injured in the fall of 2005 while working for the state department of corrections. A workers’ compensation report indicated she sustained injury to her neck, lower back, both shoulders and left arm. The district court ruled she sustained permanent partial disability, and ordered her employer/insurance carrier to pay for “reasonable and necessary continuing medical maintenance,” which was limited to prescriptions medications and four annual monitoring visits with a specified doctor. There was no limit to doctor’s exercise of medical judgment as to the kinds of prescriptions plaintiff could receive, other than that they had to be both reasonable and necessary.

Five years later, plaintiff moved to re-open her claim based on a change for the worse in her condition. The claim was reopened and the court found in her favor with regard to her left shoulder. It did not find a change in her lower back. Employer/insurer was ordered to pay all reasonable and necessary costs as a result of this worsening injury.

Employer appealed, and the court modified the part of the order pertaining to temporary total disability, but plaintiff’s awards for reasonable and necessary medical expenses was the same, and so was the award of continuing medical maintenance.

The following year, defendants requested a hearing to “discuss prescriptions,” and in particular objected to a doctor’s medical report. Court ordered worker to undergo additional medical examination to determine appropriateness of prescriptions and continued medical maintenance. Defendants filed a motion to terminate worker’s prescriptions. The court granted the motion, but continued the order for medical maintenance.

Plaintiff appealed, arguing the court erred in applying a law allowing for the employer to control her medical treatment, when those laws didn’t exist at the time of injury. The second argument was that if such restriction was allowable, it amounted to the unauthorized practice of medicine.

The controversy stemmed from the retroactive application of new workers’ compensation law. The state supreme court, on review, determined such retroactive application was impermissible.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
Shepard v. Dept. of Corrections, Feb. 24, 2015, Oklahoma Suprem Court

More Blog Entries
Report: Nurses at High Risk of Becoming Patients Due to Work Injury, Feb. 20, 2015, Spartanburg Workers’ Compensation Lawyer Blog

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