l WINTER 2018 CERTIORARI Journal of Consumer Advocacy CONSUMER INFORMATION FOR THE CLIENTS AND FRIENDS OF FRASIER, FRASIER & HICKMAN, LLP Page 2: l CASE FILE Intoxication Clarified in Workers’ Comp Case Page 3: Cancer Insurance Social Security Disability Claim Can be Difficult Case Finally Settled In 1997, Rebecca Ake purchased from Frasier, Frasier Central United Life Insurance Co. a limited- & Hickman, LLP benefit insurance policy which covered Attorneys at Law specific benefits should Ake or a member of her family be diagnosed with cancer. The 1700 Southwest Boulevard company’s marketing materials specifically Tulsa, Oklahoma 74107 mentioned benefits for immunotherapy and 918-584-4724 or blood platelet and other types of treatment. 1-800-522-4049 Ms. Ake continued to pay her premiums Internet site: and in 2010, her husband Larry Ake was di- agnosed with cancer. He died in 2016. Dur- http://www.frasierlaw.com “Our firm has seen too many ing Mr. Ake’s illness, the insurance company experiences like this one E-mail Address: paid out several claims but denied benefits where insurance companies [email protected] for immunotherapy and blood platelet treat- ments, claiming these were not covered fail to keep their promise, Thomas Dee Frasier under the policy. The language in the policy to honor the contract of their 1924-2001 was old and made no mention of immuno- insurance policies issued, therapy and other types of treatment. The and a person who needs James E. Frasier insurance company used this to deny Mr. Ake the benefits he and Mrs. Ake paid for. help does not get it.” Steven R. Hickman Ms. Ake, a resident of Mangum, OK, hired John W. Flippo Frasier, Frasier & Hickman, LLP and a suit for her husband during his illness. But the was brought in the Western District Federal decision is too late to help her husband. J.L. Franks Court in Oklahoma City, alleging breach of “Unfortunately, our firm has seen too contract. many experiences like this one where insur- Frank W Frasier Recently, on the eve of a scheduled trial, ance companies fail to keep their promise, Central United agreed to settle the matter to honor the contract of their insurance George M. Miles out of court. policies issued, and a person who needs “This is a bittersweet situation for Ms. help does not get it.” Kathryn H. Black Ake,” said Frank Frasier. “The court agreed Frasier added, be vigilant and know what Maureen M. Johnson that she was right, that the insurance policy coverages are offered by any insurance she had purchased should have covered im- policies you have, and demand that insurers munotherapy and blood platelet treatments honor their promises. CERTIORARI Appeals Court Reverses Workers Compensation Commission on Intoxication CASE FILE By Kathryn H. Black cause of the accident – another em- is made up of three political ap- l It has always been the case in ployee engaged the machine while pointees, two of whom are lawyers Workers’ Compensation that an in- our client was fixing it. and none of whom has practiced jury caused by the employee’s use A Workers’ Compensation claim Workers’ Compensation law. The of alcohol or drugs is not compens- was filed. His employer denied case was appealed and the Court able. With the enactment of the the claim because a blood test of Civil Appeals reversed the Com- new administrative system in 2014, performed at the emergency room mission, holding that the Commis- however, the Oklaho- revealed the pres- sion overstepped its boundaries as ma Legislature added ence of marijuana me- a reviewing body by reweighing a twist. Under the new tabolites. (Marijuana the evidence and substituting its law, if an employee stays in the system judgment for that of the judge. tests positive for an for weeks after there The Court of Civil Appeals also illegal controlled sub- is any intoxication.) rejected the Commission’s infer- stance, or refuses to At trial, the admin- ence that the mere presence of undergo testing, there istrative law judge marijuana in an employee’s system is a presumption that the injury was determined the presumption was means that he is intoxicated. De- caused by the intoxicant. In other overcome and that the employee spite the draconian implications of words, the law assumes that intoxi- was not intoxicated at the time of the new law in this regard, the ap- cation caused the injury unless the his injury, despite the presence of peals court has shown that despite employee can prove that it did not. metabolites in his system and his the presumption of a causal con- One of our clients recently suf- admission to smoking marijuana the nection between the injury and the fered a grievous injury to his arm night before. use of illegal drugs, the presump- when it was crushed in a machine That order was appealed by the tion can be overcome by an em- at work. It was not his fault. Nor, employer to the recently appointed ployee’s own undisputed testimony even if he had been intoxicated, administrative body, the Workers’ that he was not intoxicated at the would that have related to the Compensation Commission, which time of the injury. Employee Back to Work After Drug Test Frank was an employee at the Port of Catoosa and rep- that was negative. The Union contest- resented by the Operating Engineers. Because he worked ed the result that the Company had CASE FILE with a collective bargaining agreement, he was protected – the results did not indicate at what l from being terminated without just cause. levels the testing was done (there are The Company also had a drug testing policy in place. minimum levels required by law), nor However, if the person “fessed up” before taking a drug showed any levels of marijuana in the test, he could go through a rehabilitation program and system, or anything else. The Com- come back to work – he got one free strike. pany also failed to follow appropriate Frank availed himself of this benefit and went through procedures. rehabilitation. Then, he paid for his own drug test to The arbitrator held that the Company failed to prove make sure that it came back clean. (Marijuana, for ex- its case by not having test results show the proper test- ample, stays in the system for up to six weeks after the ing limits. The arbitrator reinstated Frank to his job with last use; other kinds of drugs last several days.) full benefits. After Frank tested negative, he returned to work. The “The employee in this case was lucky because the first thing the Company did was give him a drug test and Company mishandled the drug testing,” said Steve Hick- it came back positive. The Company terminated him. man, who represented the Union in the arbitration. “Even The Union, on Frank’s behalf, filed a grievance and under the new marijuana laws, a Company still has the went to arbitration, assisted by Frasier, Frasier & Hick- right to terminate an employee who tests positive. But, man, LLP. The only evidence the Company had was the sometimes, the matter is worth pursuing just because the drug test result. The Union also had a drug test result Company fails to follow protocols or prove its case.” Winter 2018 2 www.frasierlaw.com CERTIORARI l CONSUMER Social Security Disability Claims Can Be Difficult to Process Benefits are available from the of their claims. Often, a before a judge, results in Social Security Administration for claimant must wait four to benefits over half the certain people with serious medical six months for a deci- time. conditions that prevent them from sion, only to be denied. An experienced working. The steps that must attorney can help If you are unable to work a full- be taken to appeal a you with your claim time job (or a part-time job that pays denial include request- before the judge in more than $860 per month) and you ing a reconsideration order to make sure have been unable to work for 12 of the first decision and that the proper infor- months or more (or are expected to then requesting a hearing mation is presented to be unable to work for 12 months or in front of an administrative Social Security. more) then you probably meet the judge after the second decision. However, the claimant or the qualifications for either disability The reconsideration process often claimant’s attorney cannot control insurance benefits (DIB) or supple- takes six to eight months to com- the delays that are occurring within mental security income (SSI), or in plete, and the administrative hearing Social Security. some cases, both, depending upon process often takes eight months to The only remedy for those delays your past work history. a year or more. is for people to contact their elected Many people that apply for disabil- Many times people stop after officials to push for improvements ity benefits in Oklahoma are experi- the first or second denial. This is a to Social Security’s disability claim encing long delays in the processing mistake – the third level, a hearing process. l CASE FILE l FAMILY Case of Complicated Mediation Can Replace Trials Delayed Injuries Settled In the past several years John Flippo, family law practitioner with Frasier, Frasier, and Hickman, LLP, has Maria Thomas was trying to enter I-44 from U.S. 75 conducted hundreds of mediations. Oklahoma statutes and had to slow to nearly a stop because of heavy traf- allow for parties in a family law case to resolve their fic. Then she was rear-ended.