Efforts to further weaken protections for injured workers were thwarted recently in Oklahoma, where the state workers’ compensation commission and the Oklahoma Supreme Court in separate decisions declared the alternative compensation model unconstitutional.
This could signal a major turning point for a troubling trend that had been gaining steam in states across the country. Workers’ compensation is supposed to provide no-fault benefits to employees injured on-the-job, and in exchange, workers forfeit their right to sue. Most of these programs are state-run and provide medical coverage, rehabilitation services, reimbursement for lost wages and death benefits. It’s known as the “grand bargain.”
But in the last decade, these worker protections have been eroded bit by bit, state by state. One of the most significant changes in a number of states has been giving employers the right to “opt out” of the state-run workers’ compensation system, so long as they offer their own insurance plan. The catch for workers is that employers have enormous control over the doctors who review each case and which workers will receive benefits. Definitions of “disability” and “work injury” are also written by the insurer, resulting in fewer workers having access to benefits.
Now, the Oklahoma workers’ compensation commission has deemed those plans to be unconstitutional. In a clear-cut opinion handed down in Vasquez v. Dillard’s Inc., the commission wrote:
“Although at first blush it appears the Opt-Out Act requires that injured workers under an authorized benefit plan must be afforded benefits equal to or better than those under the Administrative Workers’ Compensation Act, this is decidedly not so.”
Insofar as proponents of this alternative workers’ compensation model assert it is just as beneficial to workers, the commission characterized this as a “mirage” that disappears when you look closer.
Although employers have insisted the plans are comparable and pay the same benefits the state would, these plans also allow companies to establish their own definitions of “injury.” And of course, many companies take advantage of this and as a result, a lot of injuries and illnesses that would be covered under the state-run system are not under this new private opt-out system. A prime example is terminal illness caused by work-related exposure to asbestos.
Ultimately, workers who are forced to try to obtain benefits through these opt-out systems aren’t receiving the same level of benefits. In fact, they are sub-standard and for this reason, such plans are unconstitutional, the commission ruled.
In a separate and subsequent ruling by the Oklahoma Supreme Court in Torres v. Seaboard Foods LLC., justices analyzed a specific provision of these opt-out plans that allows prohibition of claims from workers who have been employed less than 180 days.
This is especially asinine when you consider that research has established that temporary workers have twice the rate of on-the-job injury and death as full-time workers AND they are more likely to die within the first month, week or even day on the job. Those workers – and their families – are left out in the cold under these plans.
The state supreme court ruled that this 180-day provision violates a worker’s due process under the state constitution and further, it’s plainly unfair.
For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.
Oklahoma Court Says Workers’ Comp 180-Day Rule is Unconstitutional, March 15, 2016, By Stephanie K. Jones, Insurance Journal
More Blog Entries:
Court: No Workers’ Comp Lien for Pain and Suffering, March 15, 2016, Atlanta Workers’ Compensation Attorney Blog