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.


Torres, a former employee, filed a workers’ compensation claim alleging that she had sustained a cumulative injury arising out of and in the course of her employment with her former employer and that she needed surgery to treat the injury. The employer denied the claim, contending that Torres had not worked a continuous 180-day period. The ALJ denied Torres’ claim, finding it barred under the provisions of Okla. Stat. tit. 85A, § 2(14). The Commission affirmed the ALJ’s order. The Supreme Court of Oklahoma retained the appeal.

Because Torres had challenged the constitutionality of the 180-day time period, the Court issued an order providing the Oklahoma Attorney General, Speaker of the House of Representatives, and the President Pro Tempore an opportunity to intervene by filing entries of appearance and briefing issues. They did not do so. The amicus curiae, the State Chamber of Oklahoma, filed a brief in support of the constitutionality of the challenged statute.

Oklahoma Supreme Court’s Opinion

Justice Edmundson delivered the opinion for the Court. The justice noted that the employer had proffered two arguments regarding the 180-day time limit: (1) that a claimant who had worked for a significant period of time was more likely to have sustained an injury than a worker who had worked for a short time, and (2) that preventing fraud and controlling economic concerns were legitimate State interests. The employer also argued that in addition to being barred from workers’ compensation benefits, Torres was barred from pursuing a civil action under the terms of Okla. Stat. tit. 85A, § 5 (the exclusive remedy provisions of the Oklahoma Act).

The justice continued that both the employer and amicus curiae appeared to agree that the statutory language would not prohibit an employee from filing a cumulative trauma claim on the 181st day of employment, where the claim would be based upon repetitive and cumulative trauma occurring for a period of time during the previous 180 days of employment. The justice reasoned, therefore, that the language requiring 180 days of employment was not construed “as defining the nature of an injury, but a condition required to file a claim against an employer in addition to the employee having suffered an injury” [¶13]. The justice continued:

[T]he statute, is determining as a matter of law a class of employees who are prohibited from filing a workers’ compensation claim although they may have suffered, in fact, a repetitive injury arising out of the course and scope of employment [emphasis by the Court].

Court’s Decision, ¶14.

Two Classes of Employees

The Court continued that the language of § 2/14) created two classes of employees alleging a cumulative injury:

  • One class of employees who suffer a cumulative trauma compensable injury during the first 180 days of employment and who may file a claim for compensation on or after the 181st day of continuous employment, and
  • Another class of employee who alleged that they have, if fact, suffered a cumulative trauma compensable injury during the first 180 days of employment and who are barred by § 2(14) from filing a claim because they have not completed 180 days of continuous employment. Torres, of course, was in this second class of employees.

Fraud Prevention is Valid Interest of State

The Court accepted, for the purposes of the case, the employer’s articulated State interest in the prevention of workers’ compensation fraud and the decrease in an employer’s costs as a result of legislative effort to prevent fraud. The Court distinguished, however, between the instance in which a police-power statute is “underinclusive” regarding an economic matter—that is, when only a portion of the identified “evil” has been regulated—and when the statute is “overinclusive.” In the latter instance, the statute prohibits both wrongful conduct by people and innocent conduct by others.

The Court said that if one were to assume that the second class of individuals noted above are, “in fact,” within the class of people who would be entitled to benefits but for the challenged statutory classification, then the statutory classification discriminated “without any basis for the distinction since the potential for spurious claims is exactly the same as to both subclasses” [Quoting Jimenez v. Weinberger, 417 U.S. 628, 636, 94 S.Ct. 2496, 41 L.E.2d 363 (1974)].

The Court continued:

Language in Jimenez, refers to both the underinclusiveness and overinclusiveness of the challenged legislation. Similar issues are present in our case today. When considering the articulated purpose of preventing workers’ compensation fraud, a statute creating a class of employees who are injured, in fact, with a cumulative trauma injury during the first 180 days of employment with their then current employer, and then they are conclusively placed within a class of employees who file fraudulent claims, that statutory placement is overinclusive by lumping together the innocent with the guilty. On the other hand, if one of the purposes of workers’ compensation is to provide statutory compensation for employees actually suffering an injury arising out of the course and scope of employment [citation omitted]; then the statute is underinclusive because it fails to include employees actually injured during the first 180 days of employment [emphasis by the Court].

Court’s Decision, ¶42

The Court concluded that the overinclusive and underinclusive nature of § 2(14), as it related to the legitimate State interest to prevent workers’ compensation fraud and its prohibition preventing an employee from filing a non-fraudulent workers’ compensation claim violates the Due Process Section of the Oklahoma Constitution.

Concurring Opinions

Justice Colbert concurred specially, noting that the Legislature’s police power is not absolute, that it is limited by Article 2, Section 6 of the Oklahoma Constitution. Colbert acknowledged what some have called the “rapid demise” of the Grand Bargain. Colbert continued that the system’s original purpose was to strike a balance between the rights and duties of Oklahoma employers and employees. Colbert concluded that “with the enactment of the Administrative Workers’ Compensation Act (AWCA), the balance is now off kilter and has become one-sided to the benefit of the employer.”

Justice Combs, joined by Justice Watt, concurred specially, indicating that while the justice agreed that the 180-day limitation provision was unconstitutional on substantive due process grounds, the statutory provision also amounted to a denial of equal protection under the law to Torres and to others similarly situated.

Justices Kauger, Winchester, and Taylor concurred in the result.

What Does This Mean For Oklahoma’s Opt Out Legislation?

The answer isn’t as clear as you might think. I’ll comment more on that tomorrow.

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