Oklahoma High Court Refuses to Fast-Track Case Challenging Constitutionality of Workers’ Compensation Opt Out Law

Yesterday (April 28, 2015), the Supreme Court of Oklahoma, in a 7–2 vote, declined to assume original jurisdiction in a civil action challenging the constitutionality of the state’s new and controversial law that allows employers to “opt out” of the state-run workers’ compensation system. I discussed the case in some detail in an April 13 post.

In an article by investigative reporter, Randy Ellis, published late yesterday in The Oklahoman, Bill Minick, President of PartnerSource, a firm that has helped craft many of the opt out plans for Oklahoma employers, is reported to have said that he believes the Court is giving the “green light” to adopt opt-out plans. In the long run that may turn out to be correct, but yesterday’s decision is a far cry from an actual determination that Oklahoma’s opt out law passes constitutional muster. The constitutional challenge to the law continues unabated; yesterday’s decision has no bearing on the merits of the case.

Minich’s optimism is echoed by John Doak, Oklahoma’s Insurance Commissioner. In a press release issued yesterday by the Commissioner, Doak said that his “department has worked to ensure that we are following both the letter and the spirit of the law so that the benefits provided by employers to protect their employees are exactly what our Legislature and Governor developed.”

Apparently the “spirit of the law” allows an opt out employer to require notice of injury by the end of the work shift, rather than within the one-year period prescribed in Okla. Stat. tit. 85A, §69; a plan containing such a short notice period was approved by the Commissioner’s office in favor of Dillard’s, Inc., the department store employer.

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2 Responses to Oklahoma High Court Refuses to Fast-Track Case Challenging Constitutionality of Workers’ Compensation Opt Out Law

  1. Bill Minick says:

    Thomas, I appreciate your blogs. A look at the briefs filed in this case explains the favorable ruling. These workers are entitled to and are receiving a full and fair review of their claims.

    • Bill, thanks for your continued interest in my blog. The opt out issue is, from my perspective, the most important current issue facing the workers’ compensation world. At its heart, it speaks to a feeling, shared by many, that the procedures governing the administration of claims in some states are broken, that claims determination is unnecessarily adversative, and that in years past the legislatures have largely failed to serve the employees and employers within the state.

      I’ve heard through the grapevine that you may be on a panel at the National Workers’ Compensation and Disability Conference & Expo this upcoming November. I’ve been privileged to be a presenter at the last 4 or 5 annual Las Vegas gatherings and will be leading a session at the upcoming conference on bizarre workers’ comp cases and how employers and their representatives can handle (avoid) them. I’ll enjoy hearing your discussion of opt outs and I’d love to meet informally with you, if you have the time, to discuss opt outs and other relevant matters.

      I also understand we may have a common friend/colleague in the quite uncommon Becki Shafer.

      Back to opt outs, I’ve spoken with Bob Burke on a couple of occasions regarding the pending challenge to the law. I’ve not been privy, so far, however, to a review of the appellate briefs considered by the Oklahoma high court. I’d allow that for the past 100 years, in the various state-run workers’ comp systems, most employer/insurers have taken the position that they have given full and fair review to all presented claims. In many, many cases, that proves to be absolutely correct. Indeed, one of the hallmarks of the workers’ comp system is the fact that the vast majority of disputes are resolved without hearing. That the employer/insurer’s determination of the issues hasn’t always been echoed 100% by the appellate courts, however, tends to support the notion that fairness, like beauty, is always in the eye of the beholder. At least by my reading of the Oklahoma opt out law, if an employee does not agree with the plan’s determination–particularly if the plan qualifies under ERISA, as virtually all (if not all) have so far–he or she must then wade through the federal court system for redress, a maze that can be even more burdensome and confusing than an administrative system run by a state. That’s why I continue to say that even more than some Oklahoma employers, it’s the state legislature that has actually opted out.

      As you correctly point out, I haven’t seen the briefs. It’s been widely reported, however, that the Dillard’s plan requires notice of injury by the end of the work shift. If that’s, indeed, the requirement, then “fairness” can mean two things: fair, under the terms of the plan; and fair, from the standpoint of the sort of rules that have prevailed, not only in Oklahoma, but around the country as a whole, for the past 100 years. Not that it’s your responsibility to answer, but I’m searching for the answer to the following mostly rhetorical question: if a Dillard’s employee waits three days to notify Dillard’s of an alleged work-related injury, would/could the Dillard’s plan administrator deny the claim because of untimely filing? I suppose the same would be the case with the Swift Transportation administrator since I understand that plan requires notice within 24 hours. I know of no state workers’ compensation act that requires such a quick notice to the employer. As I understand ERISA, it “worries” whether plan participants are treated in a non-discriminatory fashion. I’d respectfully posit that the question is different in the opt out scenario. The issue isn’t whether the plan participants are equally, fairly treated, but whether employees who work for opt out employers are disparately treated when compared to those who work for employers remaining within the state-run system.

      Again, I greatly appreciate your reaching out to me. I look forward to continued discussion about this important issue/set of issues.


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