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Attorneys Take TTD Cap Challenge to Supreme Court

Attorneys for an injured oil field worker on Wednesday announced that they will be taking their constitutional challenge to the statutory cap on temporary total disability benefits to the Oklahoma Supreme Court.

Section 45(A)(1) of the Administrative Workers’ Compensation Act sets the weekly TTD rate for a worker at the lesser of 70% of his average weekly wage, or 70% of the statewide average weekly wage.

The statute therefore causes more financial strain on injured workers who had been high-wage earners than those who had been generating smaller paychecks before being hurt.

Back in 2015, the statewide average weekly wage was $816.50 — far less than the $1,446.65 per week that Jesus Hidalgo was making in his job with the Unit Drilling Co.

He suffered injuries resulting in the amputation of his right arm, below the elbow.

Because Hidalgo’s average weekly wage was higher than the statewide average weekly wage, the application of Section 45(A)(1) would cap his benefits at $571.55 — $441 less than the $1,012.65 he would receive if he could get 70% of his average weekly wage.

Hidalgo objected to the application of Section 45(A)(1) to him. He argued that the capping of his benefits deprived him of due process and an adequate remedy for the injuries he had suffered.

Administrative Law Judge Patricia Sommer was not persuaded, and neither was the Workers’ Compensation Commission.

The Court of Civil Appeals affirmed the commission’s decision in an unpublished opinion released on Oct. 12.

While the COCA acknowledged that the Supreme Court has not yet addressed the constitutionality of Section 45(A)(1), it reasoned that the Supreme Court’s 2017 decision in Graham v. D&K Oilfield Services supported a conclusion that the statute would pass muster.

The Graham case had involved a constitutional challenge to a statutory limit on the availability of benefits for hernia injuries. In upholding the statute, the Supreme Court ruled that the Legislature has the power to set limitations on the specific amounts of benefits provided for a particular injury, as long as all individuals are treated the same way.

Since all injured workers who are temporarily unable to perform their jobs receive TTD benefits based on an established percentage of their wages that do not exceed an established maximum, the COCA said Section 45(A)(1) was consistent with the constitutional standard established in Graham.

Attorneys Bob Burke, Joseph Biscone II and Emily Biscone represented Hidalgo before the COCA. Burke on Wednesday issued a statement that they plan to take Hidalgo’s case to the state Supreme Court.

To read the COCA decision in Hidalgo v. Unit Drilling Co., click here.

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