I complained about the Oklahoma Supreme Court issuing an opinion declaring the standard of review a “substantive right” without explanation here. The Court recently came out with another Workers’ Compensation opinion which declares a different provision substantive, but it does offer a little bit more explanation:
“We find that 85 O.S. 2011 § 329(B), which allows the trial court to appoint an IME at any time, is a substantive change in the law that only applies to injuries occurring on or after August 26, 2011, the effective date of the statute….
[T]he only question before this Court is whether the statute affects the substantive rights of the parties. That is, does the statute increase or diminish the amount of recoverable compensation or alter the elements of the claim or defense by imposition of new conditions? Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 15, 78 P.3d 542, 548. If the answer to that question is yes, then our case law mandates prospective application of the law regardless of the statutory language. Ellis, 2006 OK 81, ¶ 13, 148 P.3d at 877 (citing Cole, 2003 OK 81, ¶ 8, 78 P.3d at 546).
In Ellis, 2006 OK 81, ¶ 1, 148 P.3d at 875, the 2001 amendment at issue imposed liability on the last of successive employers to expose a claimant to cumulative trauma. Id. ¶ 7, 148 P.3d at 876. Before the 2001 amendment, the law allowed apportionment of liability between successive insurers in cumulative trauma cases. Id. In that case we held that the right to compensation and the obligation to pay such benefits became vested and fixed by law at the time of the claimant’s injury and such rights could not be affected by after-enacted legislation. Id. ¶ 14, 148 P.3d at 877.
Like in Ellis, the language in § 329 substantively alters the rights of the parties because it requires employers to pay for medical services in circumstances not previously recognized, namely, before compensability has been determined. 85 O.S. 2011 § 329(B) only applies to injuries occurring on or after August 26, 2011, the statute’s effective date, even though the statutory language directs otherwise. See Williams Co. v. Dunkelgod, 2012 OK 96, ¶ 18, ___P.3d___ (determining that the Legislature’s use of the language “regardless of the date of injury” is meaningless if such language substantively alters the rights of one or both parties).”
Hillcrest Medical Center v. Powell, 2013 OK 1, prgs. 0, 8-10. So, one possible standard for substantive changes is whether the new statute requires the employer to “pay for medical services in circumstances not previously recognized, namely before compensability is determined.” It is my experience that employers and insurance companies have always frequently paid for Independent Medical Examiners prior to compensability determination, sometimes by agreement and sometimes by Order of the Court. But, my experience is limited, and I have not done any research on that point…I could be mistaken. At least now we know a little bit more about the Court’s view on the procedural/substantive distinction.