When the Oklahoma Supreme Court on Dec. 16, 2014, upheld a bill that on Feb. 1, 2014, will replace the state’s 35-year-old Workers Compensation Court with a new administrative workers compensation system , three justices expressed some reservations. The justices’ dissent foreshadows challenges that could be leveled against the new workers compensation system.
In upholding the new laws, dissenting justices agreed with five justices that the Administrative Workers’ Compensation Act (85A Okla. Stat. Supp. 2014 §1 et seq.) and the Oklahoma Employee Injury Benefit Act, (85A Okla. Stat. Supp. 2013 §200 et seq.) do not violate the state’s constitutional ban against multiple subjects addressed in a single piece of legislation. The ninth justice, Yvonne Kauger, did not participate in the decision.
The three partially dissenting justices, however, found flaws in provisions that treat employees of companies that opt out of the system under the Oklahoma Employee Injury Benefit Act differently than employees of companies participating in the Administrative Workers’ Compensation Act system. The OEIBA allows companies that have comparable insurance to opt out of the state system. Justice Douglas Combs wrote that different judicial appeals procedures for employees of companies that opt out violate the special-laws prohibition in Article 5 of the Oklahoma Constitution.
Justice Noma Gurich joined Vice Chief Justice John Reif and Combs in what they see as an equal protection flaw, but Reif and Gurich found two more constitutional flaws in the opt-out law. Along with op-out companies’ privilege of making their own initial determinations regarding who is entitled to workers compensation, the appeals processes for employees of opt-out companies “work prejudice in the administration of a statutory right forbidden by Article 2, § 6 of the Oklahoma Constitution, and are a denial of due process forbidden by Article 2, § 7 of the Oklahoma Constitution,” Reif wrote.
All three dissenting justices agreed that employees of opt-out companies do not enjoy the same standard of review as employees of companies in the state system when an appeal finds its way to the Supreme Court. Each group of injured workers is entitled to appeal their cases to the Workers’ Compensation Commission. But if workers appeal a Commission decision to the Supreme Court, those working for companies that have not opted out can win a reversal on weight of evidence or points of law. Those working for opt-out companies can only win a reversal on points of law.
Special Laws Prohibited on Oklahoma
Beyond an unequal standard of review, the analysis on which three dissenting justices concurred cited inequality in the initial appeals process for employees of opt-out companies compared to those in the state system. For employees of opt-out companies, the first appeal is before a committee of at least three members – chosen by the employer – who may be fellow employees of the injured worker. For employees of other companies, the first appeal is before an impartial administrative law judge.
The record on which further appeals may be based is limited to evidence that the original appellate panel accepted. For workers at companies enrolled in the state system, that means a record established by decisions of an impartial administrative law judge. For employees of opt-out companies, it means a record limited to evidence allowed by a panel selected by the employer. Combs concluded that difference comprises an unconstitutional special law.
Combs cited Okla. Const., Art. V, §46:
“The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing… Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals…”
Are Company-Run Courts Even Legal?
Building on their agreement with Combs about differential treatment and special laws, Reif and Gurich proceeded to find more flaws in the new workers comp laws. Empowering an employer to impanel an “appeals” committee simply fails to meet the impartiality requirements of due process afforded in the Oklahoma Constitution, Rief wrote, “because the employer has a direct pecuniary interest in the decision of a claim.”
Self-interest has repeatedly been found – in common law, by the Oklahoma legislature and by the Oklahoma Supreme Court – to be a disqualifying circumstance, Reif explained. Reif appears to recognize the employers’ appellate panels as quasi-judicial bodies. The fact that they control production of hearing records that limit what can be appealed to the state Supreme Court certainly implies the employers’ committees are quasi-judicial in nature.
Separation of Powers Questions
Differential treatment for employees of different companies and the denial of due process by the grant of judicial powers to company committees were only the beginning of flaws Reif and Gurich found. The two justices also found it improper that claims for injuries that occurred prior to the new law taking effect Feb. 1, 2014 would thereafter be appealed to the Workers Compensation Commission – an administrative body.
Those were judicial matters under the law in effect at the time the injury occurred. After the new law takes effect, claims filed prior to the new law would be appealed to the Court of Existing Claims – a court of record – then to the Workers Compensation Commission – an executive administrative agency. Yet they are within the appellate jurisdiction of the Supreme Court. The Oklahoma Constitution’s separation of powers doctrine does not allow judicial matters to be reassigned to the executive branch for intermediate review before they are heard by the state Supreme Court, Reif wrote.
…except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.”
What’s more, Reif wrote that the new laws’ claim to be the exclusive remedy in workplace injuries could leave some injured workers in a legal no-man’s land. That legal limbo can arise in cases of mental injuries to workers, which are expressly not covered under the new law, and in regard to death benefits for same-sex spouses, which are expressly denied under the new law.
While the law can properly deny compensation under the Act for workers claiming workplace mental injuries, the law cannot shield employers from responsibility for mental injuries, Reif wrote. He singled out emergency workers including police, firefighters and emergency medics as potentially being deprived of recourse.
“The effect is to immunize employers for detriment sustained by employees from work place conditions beyond the control of the employees.” Reif wrote.
Support for Same-Sex Marriage
Support for the rights of same-sex partners is relatively new – if not a first – among the Oklahoma Supreme Court justices. Denial of death benefits to same-sex spouses whose marriages are recognized in other states violates the Interstate Commerce Clause and the Privileges and Immunities Clause of the U.S. Constitution, Reif wrote.
Another flaw in the new law in the views of Reif and Gurich denies equal protection for injured employees who lose body parts or suffer partial permanent disabilities in workplace injuries. If the loss is so severe they can’t return to work, the injured worker received compensation. If the employee can return to work, however, the employer can tap into that compensation to subsidize re-employment.
According to Reif, “It appears that the Legislature believes that an injured and permanently impaired worker who returns to pre-employment work or its equivalent, has suffered no detriment from the injury and impairment.”
Dissent is a Playbook for Legal Challenges
It remains to be seen whether two or three dissenting justices’ expressed opinions on flaws they see in the new law indicates other justices don’t see those same flaws. At a minimum, the dissenting opinions serve as a playbook for cases that may be ripe for appeal once a set of facts has been established by way of future workplace injuries.
Until Feb. 1, 2014, most employees injured on the job still have a right to have their cases reviewed by the Workers Compensation Court, where they may be represented by an attorney. After Feb. 1, 2014, several types of cases suggested in the dissenting opinions may be ripe for constitutional challenge, including those involving:
- Appeals of pre-Feb. 1, 2014 cases diverted by the new law for appellate review by the administrative Workers Compensation Commission.
- Workers employed by opt-out companies whose cases are first appealed before employers’ committees.
- Workers who are denied benefits for mental injuries on the job.
- Surviving same-sex spouses denied death benefits for partners who died on the job.
- Workers who return to work after an amputation or other permanent partial disability and whose compensation was diverted to subsidize re-employment.
Your Right to A Workers Compensation Attorney
If you find yourself involved in the above or any other case under the new Oklahoma workers compensation system in which you believe your rights have been impaired, contact the Wirth Law Office Tulsa workers compensation attorneys at (918) 879-1681 or toll free at (888) Wirth-Law. Our Oklahoma workers compensation attorneys offer free initial consultations to help you determine how to proceed with your case. If you prefer written correspondence, you may submit a question through the form at the top right of this page.
Read the full Oklahoma Supreme Court opinion in Coates v. Fallin 2013 OK 108 here at www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=472451
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