Lawmakers in Oklahoma passed legislation three years ago that gave companies the ability to “opt out” of the state’s workers’ compensation system and write their own plans. It was yet another example of the gradual whittling away of injured workers’ rights across the country. Large companies were emboldened by this success and began lobbying heavily for similar measures in other states, including Georgia.
Then came the stories about how unfair this opt-out system was for workers. Suddenly, employers were responsible for setting the terms of which injuries they would cover and which they would not. Workers were held to varying standards about when they had to report their workplace injuries. Some were given a month, others just a day. A worker at one company might be paid a certain amount for a finger amputation, while another might receive far less. Many workers were having to rely on taxpayer-funded programs, such as Medicare, Medicaid, and Social Security, to cover the cost of their work-related injuries.
Now, the Oklahoma Supreme Court has ended the opt-out program in that state. In Vasquez v. Dillard’s, the court declared Oklahoma’s version of opt-out unconstitutional. The court reasoned these opt-out plans treated one group of workers differently from all others in the state. The primary example given was the amount of time workers had to report claims at this retail store: just one day. Normally, workers in the state have 30 days.
Although Oklahoma has made it clear it will no longer tolerate this type of imbalanced system, it’s probably not the end of the battle. In fact, Bill Minick, the Texas attorney whose firm was responsible for drafting the majority of the opt-out plans in Oklahoma (and half in his home state, which also offers an opt-out provision), said the ruling is only specific to Oklahoma’s constitution. He said there was no reason to believe that alternative workers’ compensation plans couldn’t or shouldn’t be pushed in other states. He opined that such plans “provide better care and benefits” to workers who are injured on the job, while simultaneously decreasing insurance premiums for employers.
Extensive reporting by ProPublica and NPR disputes this assertion. In fact, Minick and numerous deep-pocketed companies have reportedly been on a very concerted effort to push this opt-out system in states across the country – starting with the South – even though these alternatives universally offer lower benefits, higher restrictions, and almost no independent oversight.
For example, in Texas, where the opt-out plans are still legal, workers’ compensation plans cut off medical care after just two years. Meanwhile, most workers’ compensation plans across the country (save for a few that have begun passing arbitrary cut-offs) offer lifetime medical care when it’s warranted. Also, most of those opt-out plans give an upfront list of all the conditions they refuse to cover. This could be anything from wheelchair vans to assaults on the job to asbestos exposure – things that would typically be covered under traditional workers’ compensation plans.
The reality is that when employers have near-total control over the medical and legal process in work injury claims, the results are going to be skewed against the workers.
For information on Atlanta workers’ compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.
Oklahoma’s Top Court: Companies Can’t Set Own Rules for Injured Workers, Sept. 13, 2016, By Michael Grabell, ProPublica
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OSHA Fights to Inspect Georgia Poultry Plant for Worker Injury Risks, Sept. 21, 2016, Atlanta Workers’ Compensation Lawyer Blog