Oklahoma Supreme Court Lands Yet Another Body Blow to State’s Controversial Opt Out Law

The 2013 Oklahoma workers’ compensation “reforms” 2013 Senate Bill 1062 which, among other things, created the state’s uber-controversial “Opt Out” arrangement, in which employers can jettison the entire state-run system if they substitute their own “separate, but equal” employee benefit plans, continues to take it on the chin. Yesterday (April 19, 2016), the Supreme Court of Oklahoma, in a per curiam decision, Robinson v. Fairview Fellowship Home, 2016 OK 42 concluded that the state’s Workers’ Compensation Commission had the power to determine whether a provision of the state’s workers’ compensation law was being unconstitutionally applied to a particular party in a proceeding before the Commission. The decision has huge implications for other cases currently before the Court, including Vasquez v. Dillards, Inc., in which the Commission earlier held two core provisions of the state’s Opt Out law were unconstitutional.  Continue reading

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Leahy Bill in U.S. Senate Could Kill Key Provision in Texas Nonsubscriber ERISA Plans

A bill [S. 2506] introduced on February 4, 2016, by Senator Patrick Leahy (D-VT), would, if passed into law, appear to invalidate a core provision found in most Texas workers’ compensation “employee benefit plans.” The Leahy bill, known as “Restoring Statutory Rights Act,” would amend the Federal Arbitration Act so as to invalidate arbitration agreements between parties in many contracts or transactions unless the written agreement to arbitrate is entered into by both parties after the claim has arisen. The Texas comp plans, put in place by some large Texas employers, usually contain binding arbitration clauses that prohibit an injured worker from litigating his or her negligence claim in state court (recall that a Texas “nonsubscribing employer” does not enjoy the exclusive remedy defense). At least from my first reading of the bill, compulsory arbitration provisions contained in Texas comp plans would come under the ax. Continue reading

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Virginia Legislature Instructs Appellate Court: Deceased Employees Really Are “Physically Unable to Testify”

On March 11, 2016, Virginia governor McAuliffe signed into law a bill extending the state’s narrow presumption of compensability [Va. Code Ann. § 65.2–105] to cover most claims where the employee dies in an unwitnessed work-related accident. Prior to the amendment, Virginia provided such a presumption in unwitnessed accident cases [for a complete discussion of the issue, see Larson’s Workers’ Compensation Law, § 7.04] where the injured worker was “physically unable to testify.” One would have thought that an employee killed in an unexplained workplace accident would be “physically unable to testify,” but last year the state’s Court of Appeals, in an opinion not designated for publication [Estate of Arroyo v. Ramirez, 2015 Va. App. LEXIS 30 (Feb. 3, 2015)], essentially said otherwise. The 2016 statutory amendment makes it clear to the Court: if a Virginia employee dies in a work-related accident, he or she is physically unable to testify.

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Does Torres Signal How OK High Court Will Decide Constitutionality of Opt Out?

As I reported on Wednesday, in Torres v. Seaboard Foods, LLC, the Supreme Court of Oklahoma struck down a provision in the state’s workers’ compensation law that disqualifies a claimant from recovering for a cumulative trauma (CT) injury unless the claimant has completed at least 180 days of “continuous active employment with the employer.” It did so, in relevant part, on the basis that Okla. Stat. tit. 85A, § 2(14) creates two classes of employees that have been similarly injured and, without appropriate justification, treats them differently. Last Friday, I noted that in Vasquez v. Dillard’s, Inc., a panel of the state’s Workers’ Compensation Commission found two core sections of the Oklahoma Opt Out law unconstitutional.  I noted that the case would almost certainly be reviewed by the state’s high court. The obvious question: Does Torres offer any clues as to how the Court will decide the appeal in Vasquez? Continue reading

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Oklahoma High Court Strikes Down State’s 180-Day Cumulative Trauma Employment Rule

In Recent “Comp” Decisions (the other from Commission), Oklahoma Legislature Is “0 for 2”

A provision in Okla. Stat. tit. 85A, § 2(14) that disqualifies a claimant from recovering for a “cumulative trauma” injury unless the claimant has completed at least 180 days of “continuous active employment with the employer” is unconstitutional as violative of the Due Process Section of Oklahoma’s Constitution [Art. 2, § 7], held the state’s Supreme Court yesterday in Torres v. Seaboard Foods, LLC, 2016 OK 20 (Mar. 1, 2016). It was the second time in 3 business days that Oklahoma City attorney, Bob Burke, had successfully challenged the 2013 overhaul of the Oklahoma’s workers’ compensation laws. As I earlier noted, last Friday, at Burke’s behest, a panel of the state’s Workers’ Compensation Commission struck down key provisions of Oklahoma’s controversial Opt Out legislation. Yesterday, Burke’s bullseye was a provision that employers argued was necessary to prevent fraud and make them more competitive in today’s economy.

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Oklahoma Commission Strikes Down State’s Opt Out Law

Equal Treatment Under the State’s Dual System is “a Water Mirage”

This afternoon (Feb. 26, 2016), in a lengthy Commission Order, the Oklahoma Workers’ Compensation Commission found that Sections 203 and 209 of the Oklahoma Employee Injury Benefit Act—the state’s Opt Out law—unconstitutional because they:

  1. Unconstitutionally deprive injured workers of equal protection;
  2. Make the law an impermissible “special law”; and
  3. Deprive injured workers of access to the Court.

The Order was rendered in Vasquez v. Dillard’s, Inc., Commission File No. CM–2014–11060L. Continue reading

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Facebook® Plays Role in Indiana $400,000 Verdict for Retaliatory Discharge

An Indiana jury was within its province as factfinder in returning a verdict for more than $400,000 in compensatory and punitive damages against a former employer in a retaliatory discharge action filed by a terminated employee, held a state appellate court recently in Best Formed Plastics, LLC v. Shoun, 2016 Ind. App. LEXIS 41 (Feb. 16, 2016). The former employer contended that the trial court erred as a matter of law in allowing the retaliatory discharge action to go to the jury since, it contended, the worker was not physically capable of returning to work at his pre-injury position. The appellate court held that under the facts of the case, which included a Facebook® post accusing the injured employee of malingering, it would be contrary to public policy to say that while an employer could not fire an employee in retaliation for filing a worker’s compensation claim, and at the same time say it could fire the employee for the inability to return to his job due to the injuries that were the basis for the worker’s compensation claim.

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Georgia Mother May Sue Deceased Son’s Employer and Staffing Company Where Co-Worker Murderer May Have been Negligently Hired

A mother’s wrongful death action against her son’s employer was not barred by the exclusive remedy provisions of the Georgia Workers’ Compensation Act (“Act”) where the undisputed facts clearly showed that her son’s death did not arise out of the employment, held a state appellate court [Sturgess v. OA Logistics Servs., Inc., 2016 Ga. App. LEXIS 67 (Feb. 15, 2016)]. The facts were as bizarre as they were tragic. The deceased was shot and killed by a temporary employee for no apparent reason. The murderer turned out to be a convicted felon who had used an alias and fake ID in applying for work. The appellate court held the risk of a random attack was no more heightened at the deceased’s workplace than at any other place.

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Wyoming Father May Sue Employer For Anguish Related to Co-employee Son’s Death

Where a father and son were co-employees working at an excavation site and the son was struck in the head with the bucket of a track hoe—the blow causing serious injury—and the father was summoned to the scene, where he unsuccessfully attempted to render aid to his son, the father has a cause of action against the employer for negligent infliction of emotional distress, held the Supreme Court of Wyoming [Collins v. COP Wyoming, LLC, 2016 WY 18, 2016 Wyo. LEXIS 18 (Feb. 10, 2016)]. The father’s claim was not derivative of his son’s fatal injuries. The Court said that it was based on an alleged injury that was separate and distinct from his son’s death. Moreover, since the Wyoming Workers’ Compensation Act (“Act”) does not provide benefits for a “mental-mental” injury, as described in Larson’s Workers’ Compensation Law (“Larson”), § 56.04, the father’s claim could not be barred by the exclusive remedy provisions of the Act.

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Illinois Court Says Flight Attendant is Not a Traveling Employee While “Commuting”

In what at first blush might appear as a counter-intuitive ruling, an Illinois appellate court has held that a flight attendant who injured her knee on a flight from Denver to New York on the day before she was scheduled to work on a separate flight from a New York airport was not a traveling employee [United Airlines, Inc. v. Illinois Workers’ Comp. Comm’n, 2016 IL App (1st) 151693WC, 2016 Ill. App. LEXIS 59 (Feb. 11, 2016)]. Accordingly, a decision by the Commission that denied her claim for workers’ compensation benefits should have been affirmed by the circuit court.  Her claim was barred by the going and coming rule.

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