Wednesday, February 18, 2015

Better Than Nothing

Work comp sucks unless you don't have it.

Then, presumably, it's better than nothing.

Opposition to Oklahoma opt-outs have asked the state Supreme Court to assume original jurisdiction in the hopes that the court will declare the 2013 law creating the new system unconstitutional.

Remember there was an attempt to get the court to act when SB 1062 was first signed into law on the grounds principally that the bill violated the state's "single subject" principal, among other arguments.

The Supreme Court ruled that SB 1062 was not unconstitutional as a multiple-subject bill, but declined to address the constitutionality of its contents until an actual controversy over the application of its provisions arose.

That controversy has arisen.

Judy Pilkington and Kim Lee both worked for employers who elected to take the Oklahoma option.

Both of their employers offered benefits under plans that had been prepared by PartnerSource, a Texas-based consulting firm for employers who wish to pursue alternative benefit programs to the Texas and Oklahoma comp systems.

Neither Pilkington nor Lee were able to get benefits under their respective employers' plans, they allege, and now they claim they have no remedy available, unless the Supreme Court declares the opt-out program – formally known as the Oklahoma Injury Benefit Act – unconstitutional.

Though the OIBA requires plans provide benefits equal to or better than the work comp system, and plans require approval of the state Department of Insurance Commissioner to be valid, the plaintiffs argue that the limited availability for them to seek judicial or administrative review of decisions to deny them benefits under their employers' plan violates such provisions.

Pilkington and Lee say under their employer's plans they have to appeal to a committee comprised of three people who were not involved in the original adverse benefit determination. Those three people can be appointed by the employers, so panel members "obviously have a suspiciously vested and biased interest in the appeal," the plaintiffs complain.

It is the record from the appeal proceeding that is reviewed on appeal, not an original trial record.

"There is no due process protection in allowing an Oklahoma employer to opt out of the statutory workers’ compensation system, set up its own benefit plan, make all the decisions regarding benefits, determine who and how a plan can be reviewed, and have total control of the development of the record for appeal," the complaint contends.

The plaintiffs also argue that the Oklahoma option creates different rights of appeal for adverse benefit determinations, depending on whether an employer has exercised the option or not.

"Under the opt-out scheme, the initial determination of compensability is made by the employer, and then appealed to an employer committee, rather than to an impartial reviewer, such as a court or administrative agency," say the plaintiffs. Employees whose employers didn't take the option are able to get review of the denials of their claims through the commission, the plaintiffs explain.

They also contend that their employer plans that provide for reporting of an injury within 24 hours is adversely different than the one year limitation in filing a claim with the Workers’ Compensation Commission.
Bowzer Assimilated.

The plans also give claimants less control over their medical care than they would have in the comp system, they claim, and that such disparate treatment, based on whether their employers made the unilateral decision to exercise the Oklahoma option, violates equal protection.

Perhaps one of the biggest issues that the court may confront however, is none of these arguments, but it is the exclusive remedy that OIBA gives employers even if they aren't participating in the system.

Texas doesn't do that - employers in Texas who do not subscribe to the state work comp system have civil liability, though most who employ alternative risk systems mandate arbitration of claims and more often than not such arbitration clauses are enforced.

The flip side of the argument though is that the reason Texas employers are not given exclusive remedy protection is because they are not required to match state benefits - because Oklahoma opt-out employers must meet the same standard as the work comp benefit program then they should also get the benefit of protection from civil suit.

With Tennessee waiting in the wings with its opt out provision just introduced into the legislature, lawmakers there have deep interest in how Oklahoma handles this.

Under Sen. Mark Green's SB 721, a Tennessee employer who wishes to take the option would have to go through the process of applying as a qualified employer, and then offer at least a mandated set of benefits, like in Oklahoma.

But like Texas, an injured employee for a qualified employer in Tennessee would be able to sue the employer if the worker can prove negligence, albeit with damage caps.

And like any state where change is faced, there is opposition to the Tennessee plan, with basically the same arguments, albeit based on different facts, that is being raised by the Oklahoma opposition.

Change is difficult to implement and difficult to accept.

But this isn't 1915. This nation and its society, economy and culture have changed radically since the early days of "workman's" compensation.

Change is inevitable from my viewpoint. Enough people have said that workers' compensation isn't working, and that there are many different laws now that provide various levels of employee protection that didn't exist previously.

While there may be some Supreme Court interference with Oklahoma's opt-out plan, or any such state plan that may come to be in the future for that matter, opt-out is here to stay, and will be coming to a state near you earlier than you might expect.

This industry is likewise changing and assimilation will occur.

Resistance is futile.

Unless you want nothing.

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