Oklahoma Workers’ Comp Lawsuit Defies Logic

By: | September 26, 2013

Bill Minick is an attorney, risk management adviser, and EVP at OccMD, based in Dallas. He can be reached at [email protected].

It took three years of hard work and intense negotiations to achieve the 2013 Oklahoma workers’ compensation reforms. The key components are the Oklahoma Administrative Workers’ Compensation Act (making various benefit adjustments and creating a Workers’ Compensation Commission for dispute resolution) and the Oklahoma Employee Injury Benefit Act (creating a competitive “Oklahoma Option” for employers to setup their own injury benefit plan with the same forms of benefits and dollar, duration and percentage limitations as contained in the new workers’ comp act).

These laws were passed with overwhelming bipartisan support, and become fully effective February 1, 2014.  They were modeled after, and improve upon, workers’ compensation laws currently in force in neighboring states, Arkansas and Texas; and their primary objectives are better medical outcomes for injured workers and more jobs in Oklahoma.

Two Oklahoma legislators who voted against the 2013 reforms have now filed a lawsuit with the Oklahoma Supreme Court to achieve through the courts what they could not achieve through the political process for which they were elected.  The lawsuit is 48-pages of near-incomprehensible, self-interested claims like these:

  • Attorneys will not be paid enough money under the new law.
  • Only lawyers are able to make fair decisions on injury benefit claims.
  • It is unconstitutional for Oklahoma to use the most credible, nationally-recognized, and data-validated standards for permanent bodily impairment (the AMA Guides) or medical treatment guidance (ODG).
  • Any conditions or limitations on Option injury benefits is inconsistent with providing lawsuit immunity to the employer (in spite of the fact that current workers’ compensation laws in Oklahoma and every state in the U.S. provide the same or similar conditions and limitations).
  • It will now be too hard for employees who test positive for drugs and alcohol to receive workers’ compensation benefits.
  • Employees who were not hurt on the job, but rather suffer from the effects of aging or other degenerative process, should receive workers’ compensation benefits.
  • Employees who wreck company vehicles while distracted as they make personal cell phone calls should receive workers’ compensation benefits.
  • Employees who just began working for an employer should be able to immediately claim that carpel tunnel syndrome was caused by their brand new job.
  • Employees who have no lost wages and no impairment of their earning capacity should be able to claim they are disabled.
  • Former employees who are in jail should continue to receive medical and disability benefits under workers’ compensation (even though their medical needs are taken care of within the prison system and they have been convicted of a crime that results in them being unable to return to work).
  • Employees covered by Oklahoma Option injury benefit plans “lose their statutory administrative act benefit and are denied equal protection and due process” (even though they are entitled to the exact same forms of benefits, with the exact same dollar, percentage, and duration limits as standard workers’ compensation policies, and the law prescribes a very detailed, fair process for resolving any injury benefit claim disputes).
  • The ability of an employer to designate persons to hear appeals of benefit denials is “most obviously vulnerable to a due process violation on the basis of the appeals committee’s facial partiality” (even though, for many years, Oklahoma – like other states – has allowed certain employers to self-administer workers’ compensation claims or hire their own third party administrator).
  • Employees covered by such injury benefit plans “no longer have access to the courts” or the new Workers’ Compensation Commission (even though disputes under an Employee Injury Benefit Plan can run up through the state courts – including the Workers’ Compensation Commission and the Oklahoma Supreme Court – or through the federal courts, right up to the U.S. Supreme Court).

This list of trial attorney-driven self-interest and falsity could go on, but you get the idea.

The plaintiffs in this case are now publicly urging fellow legislators to embrace an administrative workers’ compensation system like the one adopted by Missouri in 2005.  However, it is well-known that the Missouri Workers’ Compensation Act has generated substantial litigation regarding the exclusive remedy protections for employers, with plaintiff lawyers using the same type of constitutional arguments advanced in this Oklahoma lawsuit.

The National Council on Compensation Insurance (NCCI) has just released its call for an overall Oklahoma workers’ compensation premium level decrease of 14.6 percent, to be effective January 1, 2014.  The vast majority of this premium rate decrease is the result of the 2013 legislative reforms. These premium rate decreases will be even greater as the result of the 2013 improvements in medical management and dispute resolution processes, and by requiring workers’ compensation insurance companies to compete for business with other insurance companies offering the Oklahoma Option.

It is not unreasonable to estimate that Oklahoma workers’ compensation premium rates could drop by at least 25 percent as a result of the 2013 law. Insurance rates for the Oklahoma Option will likely be even lower, while still providing all injured employees in Oklahoma the same types and levels of compensation for on-the-job injury.

The Oklahoma Insurance Department, insurance companies, third party administrators, insurance agents and consultants, and employers in Oklahoma and across the United States are actively working now to implement these new laws and have them operate effectively for injured Oklahomans. One clear purpose of this lawsuit is to dampen enthusiasm and adversely impact the ability of Oklahoma to develop a competitive marketplace. These Oklahoma lawsuit advocates reflect the same values seen in the promoters of over-reaching federal laws, believing that no one can be treated fairly unless government bureaucracies and lawyers are firmly in charge of every aspect of our economy and the lives of our citizens.

Oklahomans understand that lawsuits like this are hurting injured workers and driving jobs away.  Surely our constitutional values of equal treatment and due process can coexist within a competitive marketplace that provides essentially the same benefits for all employees under both coverage options, along with dispute resolution processes that ensure a full and fair review of employee claims.

Oklahomans should also speak out to encourage the Oklahoma Supreme Court to not legislate from the bench and to refuse to accept lawsuits that chiefly serve to hold the welfare of injured workers and the economic development of Oklahoma hostage.