Why the big business attempt to ‘opt out’ of workers compensation was found unconstitutional (Capitol Updates)

Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1991. He currently practices law in Tulsa and represents clients at the Capitol. You can sign up on his website to receive the Capitol Updates newsletter by email.

worker jumping for joyOh, the irony. The ruling business interests in Oklahoma have had the court system in the crosshairs since they gained the advantage in the legislative and executive branches. While legislators and governors are inclined to “dance with those that brung ’em”, the courts are here to make sure even the wallflowers are not left behind when it comes to their rights under the law. Recently judges have been graded on whether they are “business friendly,” called “out of touch” with Oklahoma values and threatened with legislation that would affect their appointment and tenure in office.

The business interests have even teamed up with those unhappy with the state courts for following U.S. Supreme Court decisions on abortion, decisions with which the judges may or may not personally agree. They’ve collaborated with folks they would otherwise feel uncomfortable having a cup of coffee with in order to undermine the independence of the courts. All this to affect rulings on the constitutionality of legislative gains they feel they’ve made.

In 2013 under the battle cry of making Oklahoma more business friendly, the Oklahoma Workers’ Compensation Commission was created to replace the Oklahoma Workers’ Compensation Court that was claimed to be too costly. Most of the savings under the new law have been achieved by lowering benefits to injured workers rather than by changing the system of governance. The 2013 Act contained hotly debated and heavily lobbied provisions that allowed companies to opt out of regular workers’ compensation coverage and replace it with a plan under ERISA that the company itself would administer. The company plan was required to pay the same benefits for categories of injuries, but the act specifically provided that the company was given the authority to define what would or would not be a covered injury. Workers at other companies were covered for injuries defined by the legislature in the Workers’ Compensation Act.

Now for the irony. After all the effort to bully the courts into upholding the constitutionality of the Workers’ Compensation Act, it is the state agency itself-the three-member Workers’ Compensation Commission appointed by the governor and confirmed by the state senate to administer a business friendly workers’ compensation system-that has held the opt-out provisions unconstitutional. They issued their order last Friday. It was just too much for the commissioners to legally stomach that the opt-out companies who are obligated to pay for the injuries are allowed to define what is or is not an injury for their employees while the statute defines an injury for everyone else. The commission said the new law denies employees of the opt-out companies equal protection of the law and creates an impermissible special law. It also denies the opt-out company employees access to the courts since the company’s decision on what is a covered injury is non-reviewable.

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Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

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