To Abey, or not to Abey

Monday, March 15, 2010 | 0

By Judge Tom Leonard

A long, long time ago the word "abeyance" crept into our workers' compensation lexicon. According to The Free Dictionary by Farlex, it means temporarily suspended, on ice, in cold storage, hanging fire. The term does not appear in the Oklahoma statutes.

It was used before 2006 in Court Rule 19H (now renumbered Rule 39A) to describe the procedure for enforcement of 85 O.S. §25 requiring an injured employee to submit to a medical examination when ordered by the Court. This mandate and its resulting penalty reduce the risk of obstructive behavior by the employee, but it must be strictly construed.

Today abeyance is used in situations that exceed its original intent. It is typically raised by motion to the Court when the claimant misses a physician's appointment, fails to appear for deposition, cancels or misses physical therapy, refuses surgery due to pregnancy or when conflicting treatment for an unrelated disease or injury precludes treatment for the work injury.

Let's look at the statute and the rule. 85 O.S. §25 which provides: "An employee claiming or entitled to compensation under the Workers' Compensation Act, shall, if ordered by the Court, submit himself for medical examination. .  .  . If an employee refuses to submit himself to examination, his right to prosecute any proceeding under the Workers' Compensation Act shall be suspended, and no compensation shall be payable for the period of such refusal."

Under Court Rule 39A compensation may be suspended upon request indicating that respondent has given the claimant reasonable notice to appear for an examination and has delivered the statutory travel expenses. The burden then shifts to the claimant to show cause that there is a reasonable, credible excuse for the failure to appear.

The statute and rule only apply to medical examinations. The suspension of compensation issue based on these provisions therefore only arises in cases involving questions such as medical causation, need for treatment, temporary compensation and whether claimant has attained maximum medical improvement.

The forfeiture penalties of §25 and Rule 39A are not automatic. Due process of law requires that after compliance by the employer with Rule 39A claimant should be afforded a hearing to show that his failure to appear should be excused. McMinn v. State Industrial Court, 1961 OK 280, 366 P.2d 954. An injured worker may not be denied compensation because of refusal to accept medical treatment tendered by his employer, unless it be shown that such refusal was arbitrary and unreasonable. Macklanburg-Duncan Company v. Wimmer, 1955 OK 24, 280 P.2d 1001.

Neither the statute nor the rule empowers the Court to suspend compensation for failure to appear at deposition or for regularly scheduled or routine medical treatment. Willful failure to appear for deposition is subject to discovery penalties such as assessment of cost and attorney fees, dismissal of the claim or other sanctions. When the claimant fails or refuses to accept the treatment recommendations of a treating physician, case law sets the standard for terminating benefits.

Employer's duty to provide medical treatment creates the implied obligation of the employee to accept reasonable remedial measures that will cure or improve his condition. Cases discussing this obligation are found on the Oklahoma Law website at here and here. The modern rule states that a claimant does not forfeit compensation benefits when a medical condition, not caused by claimant, requires that the treatment being provided be postponed.

Conclusion: In those rare instances when an employee refuses a medical examination, the employee can lose temporary compensation until he complies with with the Rule 39A. The same claimant who has reached MMI could also lose the accrual of permanent benefits by unexcused failure to appear for a rating examination. However, not every failure will trigger the penalty of §25.

Tom Leonard is one of ten judges at the Oklahoma Workers' Compensation Court. This column was reprinted from his blog, "Judge Tom Talks," which can be found here: http://judgetom.blogspot.com/