Wednesday, March 2, 2016

Spotlight Oklahoma

Oklahoma is probably the least likely state one would imagine to be the epicenter of workers' compensation controversy, but since the state did a "reform" which drastically altered some qualification for benefits as well as introducing an opt-out program, the state has been embroiled in dispute.

Last week, of course, the state's Workers' Compensation Commission declared opt-out to be unconstitutional, failing the state's guarantee of equal protection.

The commission said in Vasquez v. Dillard's that the state's opt-out program failed constitutional muster because it subjects workers to differential treatment depending on whether their employers are subject to the Oklahoma Employee Injury Benefit Act or the Administrative Workers' Compensation Act.

Yesterday the state's Supreme Court issued a 50 page ruling striking a provision of the 2013 reform that bars cumulative injury claims filed within the first 180 days of employment.

The Court in Torres v. Seaboard Foods said the cumulative trauma restriction groups together employees who legitimately incur a CT injury in their first 180 days of employment with workers who file fraudulent claims, “lumping together the innocent with the guilty.”

“On the other hand, if one of the purposes of workers’ compensation is to provide statutory compensation for employees actually suffering an injury arising out of the course and scope of employment, then the statute is under-inclusive because it fails to include employees actually injured during the first 180 days of employment,” the opinion states.

There were two concurring opinions that were more inflammatory - essentially calling into question The Grand Bargain and declaring Oklahoma's workers' compensation laws now critically out of balance, favoring business too much, and giving workers too little.

Justice Colbert, joined by Justice Watt, in a concurring opinion said, "the balance [in the Grand Bargain] is now off kilter and has become one-sided to the benefit of the employer", and that "The Administrative Act abrogates an injured employee's bargained remedies, and at times, leaves the employee bereft of any legally cognizable recourse."

In another concurrence, Justice Combs wrote, "By cutting off all recovery for an injured worker, excluding them from both workers' compensation coverage and from filing a tort claim, the Legislature has violated the grand bargain and betrayed the fundamental principles of justice that gave rise to it in the first place."

The state Chamber of Commerce is dismayed, telling WorkCompCentral they are "disappointed" though reviewing options.

The lead attorney in all of the constitutional challenges, Bob Burke, has been prolific in filing appeals and communicating with community, sending email status updates and blogging regularly about Oklahoma workers' compensation nearly since the day after Senate Bill 1062 was passed.

He says the state Supreme Court "spoke volumes" about the 2013 reform.

I think Burke is right.

We certainly don't know what the Court will do with the Commission's opt-out opinion.

Though the Commission went through details to explain how it gained jurisdiction over a constitutional issue, generally administrative agencies don't have such power - but regardless, the case is now before the Supreme Court by the Commission's own action.

And it seems to me the Court is anxious to take the case on, if the Vasquez case is any indication.

Oklahoma isn't just a test of opt-out. It's really a test of just how far "reform" can go without offending The People. 100 years of Grand Bargain culture is difficult to erase with a governor's signature...

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