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.
Many, including this writer, had wondered if the Commission was an appropriately constituted body to pass upon constitutional issues. In a separate setback for Opt Out, the Oklahoma Supreme Court, in a 7–2 early March 2016 decision, found unconstitutional Okla. Stat. tit. 85A, § 2(14), which 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.”
Background in Robinson v. Fairview Fellowship Home
Robinson worked as a nurse’s aide for a senior citizens’ home. She claimed to have sustained a work-related injury on her lunch break when she slipped and fell on an icy sidewalk some five feet from the employer’s exit. The employer admitted that she was an employee on the date of the accident, but denied that her injury arose out of and in the course of her employment under 85A O.S. Supp. 2013 § 2(13). Robinson argued that if her injury was not compensable, then § 2(13) was an unconstitutional special law and unconstitutionally denied her a remedy for her injury.
The ALJ found Robinson’s injury was not in the course and scope of employment, and thus, not compensable. The ALJ declined to address Robinson’s constitutional arguments, indicating the Commission was an administrative agency and without power to decide Robinson’s constitutional arguments. The Commission affirmed the decision of the ALJ, stating that constitutional claims could not be determined by the Commission en Banc; such claims could only be decided by a court of competent jurisdiction (interesting, in Vasquez, the Commission determined that it was a “court of competent jurisdiction). In an unpublished decision, the Oklahoma Court of Civil Appeals affirmed.
Attorney General’s Office Says Commission is Competent Court
Earlier this year, the Supreme Court invited the Attorney General to file his brief on the issues. The Attorney General subsequently did so, arguing that the Commission had the authority to address the constitutionality of a statute as it was being applied in an individual proceeding, subject to judicial review by the Supreme Court.
Supreme Court: At Least in Some Situations, Commission Can Determine Constitutionality
Having the benefit of the AG’s brief, the Supreme Court concluded that the Commission had the power to determine whether a provision of Title 85A was being unconstitutionally applied to a particular party in a proceeding before the Commission. The Court of Civil Appeals’ opinion was accordingly vacated. The Commission’s decision in this case was also vacated and the cause was reversed and remanded for a new hearing before the assigned ALJ.
Stage Set For Vasquez
The stage is now set for a real decision on the constitutionality of the Oklahoma Opt Out law in the Vasquez case. Some, who follow the Opt Out issue, including this writer, had wondered if the Oklahoma high court might skirt the primary Vasquez issue—the “separate but equal protections” afforded by Opt Out—by determining that the Commission’s decision in Vasquez was being beyond the Commission’s jurisdiction. It is hard to imagine that now since the Court has specifically indicated otherwise. Indeed, as other commentators have noted, Dillard’s seems to have been betting heavily that the Commission would not be deemed a competent court.