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Okla. Commission Finds Preposterous Workers’ Comp “Opt-Out” Law to Be Unconstitutional

Large news outlets like Pro Publica and NPR exposed problems with OK's opt-out law

Large news outlets like Pro Publica and NPR exposed problems with OK’s opt-out law

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Oklahoma state regulators have ruled that a law allowing employers to “opt out” of workers compensation is unconstitutional.  In their ruling, the Oklahoma Workers’ Compensation Commission said that the “the alternative workplace-benefit plans that some employers adopted under the law were a water mirage on the highway that disappears upon closer inspection.”

An explanation and brief history of the law comes from NPR:

Since 2013, employers in Oklahoma have had the ability to set up their own workplace injury plans and avoid state-regulated workers’ comp benefits. An NPR and ProPublica analysis of Oklahoma’s opt-out plans shows that most provide fewer benefits, make it easier for employers to deny benefits, give employers control over medical assessment and treatment, leave appeals in the hands of employers, and force workers to accept lump-sum settlements.

The ruling “stops opt-out in its tracks,” says Bob Burke, an Oklahoma City attorney who has filed 17 cases challenging the law.

It stems from the case of Jonnie Yvonne Vasquez, who was injured at work while lifting boxes of shoes at a Dillard’s department store in 2014. Dillard’s denied benefits, citing a pre-existing condition. The company also rejected Vasquez’s appeal.

Burke, who represents Vasquez, argued that the injury would have been covered under the state’s workers’ comp law and that the rejection by Dillard’s constitutes disparate treatment of injured workers.

The Workers’ Compensation Commission agreed, noting other examples in the Dillard’s plan, including denial of benefits for illnesses caused by exposure to asbestos, even though those illnesses would be covered under state workers’ comp law.

“The employer acts as the Legislator, by defining the ‘injuries’ for which benefits will be available,” the commission wrote.

In an op-ed for the Huffington Post, Debbie Berkowitz, a safety and health expert with the National Employment Law Project (NELP), touched on the various ways big business has chipped away at the centuries-old workers compensation system and how the Oklahoma “opt-out” law was corrupt:

”Big business has successfully chipped away at these programs, state by state, making it harder for injured workers to qualify. Nowhere has the drive to weaken injured workers’ rights been as great as in Oklahoma, which passed a law several few years ago allowing employers to “opt out” of the workers’ compensation system and mandated benefits if they set up their own plan that is equal to or better than those established by the state.

These “opt out” plans were marketed by a Dallas-based attorney, Bill Minick, who, according to a Propublica/NPR expose last year, co-wrote Oklahoma’s Opt-Out Act, manages 90 percent of the new opt-out plans in that state, and whose wife is the medical director charged with picking doctors and reviewing whether injuries are work related. Minick claims he will save employers lots of money. Well, the decision by the Oklahoma Workers’ Compensation Commission makes clear how he saves employers money: His plans are illegal.

An appeal is expected by Dillard’s in the case.   Oklahoma Insurance Department Commissioner John Doak said that he too anticipates an appeal and “looks forward to a complete and careful review of these issues by the judicial branch.”  He added:

”My department will continue to perform its statutory responsibilities while this consideration occurs, and we will support our legislators as they continue to develop Oklahoma’s workers compensation system this session,” Mr. Doak said. “Addressing these issues head-on will enable our state to provide the best care possible for Oklahomans at a price employers can afford.”


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