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.

Opt Out Creates “Dual” System: Workers Not Equally Treated! 

I’ve had access to the Order for less than an hour and I, therefore, request unanimous consent to revise and extend my remarks, but in particular, the Commission found that the Opt Out law impermissibly established a dual system under which the state’s workers were not treated equally. The Commission continued:

The appearance of equal treatment under the dual system is like a water mirage on the highway that disappears upon closer inspection.

Opt Out Employer Allowed to Define “Injury”

Particularly problematic, said the Commission, is the fact that under Section 203 of the law, “the employer—the very party who will have to pay the compensation—is authorized to define ‘injury.’”

In the instant case, Ms. Vasquez sought recovery for what she alleged was a work-related aggravation of a pre-existing spine injury. Vasquez claimed, and the Commission agreed, that Dillard’s Benefit Plan employed a much more restrictive definition of injury that virtually excluded any aggravation claims.

Over Dillard’s objection, the Commission held it had jurisdiction to hear the matter since, under the Opt Out law, the Legislature had made the Commission a state court of competent jurisdiction.

The Commission noted that its decision was immediately appealable to the Supreme Court of Oklahoma and that the Court was required to retain the appeal and entertain the case on an expedited basis.

After I have had more time to review the Order, I’ll provide additional commentary.

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4 Responses to Oklahoma Commission Strikes Down State’s Opt Out Law

  1. Thank you, Tom. Appreciate the speedy summary.

  2. Andrew Deutsch says:

    I appreciate the succinct report. Would you be able to post a copy of the order? I’ve been looking–unsuccessfully–for the actual order since I heard the news.

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