Additional Parts of New Oklahoma Workers’ Comp Law Expected to be Set Aside

Two key provisions of the Republican-led overhaul of Oklahoma’s workers’ compensation law in 2013 have been shot down in recent weeks as unconstitutional, and a trial attorney who opposes key aspects of the law says he expects more of the regulations to be nullifed as additional lawsuits proceed through the courts.

Most recently, the state Supreme Court said last week it was unfair that workers who suffered cumulative injuries while employed six months or less couldn’t seek aid under the workers’ compensation system. Since other provisions of state law direct employees into the workers’ comp system instead of letting them sue, at times those injured would have no recourse, the court said.

“The balance is now off-kilter and has become one-sided to the benefit of the employer,” Justice Tom Colbert wrote last Tuesday in the case based on a worker suffering cumulative injuries after 120 days – two months short of the 180 days of employment she needed before being eligible to make a claim under the 2013 law.

And in a Feb. 26 ruling, the Oklahoma Workers’ Compensation Commission tossed out a provision that lets employers “opt out” of the traditional workers’ compensation laws if they provided similar benefits after their own review. More than five dozen companies had taken their compensation systems in-house.

The OWCC ruled that legislators erred by inserting language that let employers define the injuries they would cover, rather than follow traditional state guidelines. “The very party who will have to pay the compensation is authorized to define ‘injury,”‘ the commission wrote, decrying a “dual system” of determining benefits for injured workers based on who they worked for.

“We can conceive of no rational basis to justify such unequal treatment,” it wrote in the case, in which a worker sued a department store chain after aggravating a pre-existing shoulder injury while lifting shoeboxes. The OWCC granted a stay of its ruling in the expectation that the state will appeal.

Workers’ comp is a form of insurance under which employees can receive certain benefits – such as cash, medical care, rehabilitation and career re-training – if they are injured on the job. Fearing high insurance costs were bad for business, Oklahoma’s Republican-led Legislature overhauled the system, limiting payments to 70 percent of the average worker’s wage, or about $550 a week, regardless of their initial salary, and stopping total disability payments after two years, rather than after three years under an earlier law.

Senate President Pro Tem Brian Bingman, R-Sapulpa, the changes were proving successful because employers have seen their insurance costs go down.

“Oklahoma businesses are saving money and injured workers are getting medical care more efficiently and quickly allowing them to return to work sooner,” he said. “It’s disappointing the court is undoing effective reforms.”

However, lawyer Bob Burke of Oklahoma City, a specialist in workers’ compensation cases, said any savings aren’t being shared.

“Unfortunately, the new law put 100 percent of the reductions on the back of the worker,” said Burke, who says he has 17 other challenges pending against portions of the 2013 law. Among those challenges, one involves a provision denying benefits to an injured worker who misses two doctor’s appointments, while another would prevent compensation for heart attacks and strokes, he said.

“You can’t do that,” Burke said.

Gov. Mary Fallin, who had backed the changes in the workers’ compensation law, said appeals are likely but that she wasn’t concerned about the changes being overturned.

“Many trial attorneys opposed changing the workers’ compensation system from an adversarial court system to an administrative system,” she said in a statement. “So it wasn’t a surprise that challenges have been made to the workers’ compensation commission and reform legislation.”

Burke said he believes that, in all, there are 52 unconstitutional provisions in the 2013 law. He said it has taken years to address the various sections because each portion must be challenged separately.

“It’s taken this long … because our Supreme Court does not issue advisory opinions,” Burke said. “Instead, you have to have an actual case that involves certain sections of the law.”