Dismissal of Claims for Failure to Prosecute

Workers’ Compensation claims in Oklahoma are subject to dismissal is they do not comply with the command of 85A O.S. Section 69. Per Section 69(4), “If a claim for benefits has been timely filed under paragraph 1 of this subsection and the employee does not: a. make a good-faith request for a hearing to resolve a dispute regarding the right to receive benefits, including medical treatment, under this title within six (6) months of the date the claim is filed, or b. receive or seek benefits, including medical treatment, under this title for a period of six (6) months, then on motion by the employer, the claim shall be dismissed with prejudice.” So two separate timelines are referenced in subsection (4) of Section 69 - six (6) months after the filing of the claim, and six (6) months during the pendency of a properly filed claim.

For number of years, defense practitioner’s have asserted that the plain language of subsection (b), upon filing of a motion to the Workers’ Compensation Commission, should result in the dismissal of otherwise valid claims which have satisfied the timeline set out in subsection (a), but have no legal activity for a period of six (6) months. In other words, the timeline under subsection (a) has been met, while that under subsection (b) has not. But prior attempts to actually dismiss claims have been viewed by both our Administrative Law Judges (ALJ’s), and our Court of Civil Appeals (COCA) as merely requiring that either timeline set out in subsection (a) or (b) of Section 69 be satisfied for the claim to be impervious to dismissal. This result was initially supported by the outcome in White v. 918 Construction. There the COCA ruled that if a request for hearing is filed within six (6) months after the CC-Form-3 is filed, consistent with subsection (a), then the separate repose period under subsection (b) is inapplicable. Per the White Court, Section 69 “contains a clear legislative edict that a workers/ compensation claim will not be subjected to dismissal with prejudice if, during the six (6) month following the filing of a claim, the employee satisfies either subsection (a) or subsection (b) of Section 69(A)(4).” The White opinion overturned an Order of the Administrative Law Judge (ALJ) who heard the claim, as well as the Workers’ Compensation Commission Panel En Banc, both of which ordered dismissal of the claim for failure to timely prosecute.

However, now the Oklahoma Supreme Court has weighed in, issuing a new opinion in the matter of OBI Holding Co., Et.Al. v. Schultz-Butzbach. In OBI, the claimant timely filed a CC-Form-3 with the Workers’ Compensation Commission alleging injury to knee. She then filed a CC-Form-9 Request for Hearing seeking temporary total disability (TTD) and medical treatment within six (6) months, thus satisfying the requirement of subsection (a). The Employer, for its part, denied a compensable injury while Independent Medical Examiner (IME) was appointed. The IME doctor concluded that claimant had a pre-existing condition, and did not attribute causation to the alleged injury.

Following the IME, Claimant failed to file any new pleadings, or take further action through the Commission for a period greater than six (6) months. Based upon this, Employer filed a motion to dismiss the claim pursuant to Section 69(A)(4)(b).

At the trial level, the ALJ denied Employer’s motion, relying in part on an earlier White decision. There was no question in OBI that the claim had been timely filed, and that a CC-Form-9 had been filed within six (6) months. The Workers’ Compensation Commission En Banc, affirmed the trial court’s ruling, agreeing that satisfaction of subsection (a) was sufficient to avoid dismissal.

The Oklahoma Supreme Court disagreed, finding the lower Court’s reliance on the earlier White decision to be “misguided", and mistakenly focused on the “immediate six month time period following the filing of the CC-Form-3 which is not at issue here.” The OBI Court, in its analysis, correctly noted the separate and distinct timelines required by Section 69 - the six (6) months post-filing per subsection (a), and the subsequent six (6) month prosecution period per subsection (b). Since the Claimant took no action following the Commission IME, neither seeking or receiving medical treatment, or indemnity benefits for a period of six (6) months, it was subject to dismissal with prejudice upon motion of the Employer. In other words, the distinct subsections of Section 69(4) are to be viewed as independent of each other - satisfaction of subsection (a) does not discharge the ongoing requirements of subsection (b).

With OBI now established law, we have seen many Claimant law firms file Requests for Hearing in all of their ongoing claims simply to ensure that they are not subject to defense dismissal motions per this new ruling. Meanwhile our firm has reviewed its current matters, and has filed several Motions to Dismiss for failure to prosecute in appropriate cases.