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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.
An important and interesting court ruling came out of the District Court in Pottawatomie County last week that will likely play into some issues in the next legislative session. Judge John Canavan, a seasoned attorney and trial judge, ruled that an injured worker has the right to sue his employer for damages if an on-the-job injury was foreseeable. That’s because the new workers’ compensation law passed in 2013 had a provision saying that to recover under workers’ compensation the injury to the worker must have been unforeseeable. The judge ruled that the injury in the case was foreseeable. Since the injured worker cannot receive workers’ compensation for his injury Judge Canavan said he must be allowed to litigate whether he should be compensated in a lawsuit against the employer in district court.
Near the turn of the 19th century workers’ compensation was added to the social compact in every state as the result of what became known as the “grand bargain.” Under the grand bargain injured workers gave up the right to sue their employers for pain and suffering and agreed to accept a certain but lesser amount for lost wages and medical benefits. Employers gave up the right to claim the injury was due to the worker’s negligence and avoid all liability for the injury.
The 2013 worker’s compensation law opened a can of worms by eliminating “foreseeable” injuries from workers’ compensation. Many jobs carry an element of risk, but the job has to get done even when it’s foreseeable that some workers will get hurt. The judge ruled that since the legislature closed the door on workers’ compensation, the door to filing a lawsuit is opened.
The 2013 law is a bad deal for both employers and employees. Some may have thought they could take away workers’ compensation and at the same time leave the employee with no remedy. The court said no, so now an employer could suffer a huge judgment against it if there’s an egregious injury or death. But there’s no free ride for workers. In District Court the worker will have to prove that his injury was the employer’s fault, not his, or he’ll get nothing.
All this was argued in the halls of the legislature in 2013. But just talking (or reading) about it is enough to make anyone’s head hurt. It’s easier to sell the idea that the new law will make Oklahoma more “business friendly.” How will this play into next session? The issue will ultimately be decided by the Oklahoma Supreme Court. If the Court upholds Judge Canavan the argument will be that the justices are not business friendly. Proposals will be made to change the judicial selection process to get more business friendly judges. The Supreme Court may not decide the case before next session is over, but just the fact that it could be will bring calls for a business friendly court.
