Many provisions of 2013 workers' compensation law have been tossed

Republicans touted the measure as a way to reduce premium costs and get injured workers treated quicker and back to work. They also said it would make the state more business friendly.

But 38 provisions have been found unconstitutional, invalid or inoperable following court challenges, said Oklahoma City attorney and author Bob Burke, who represents injured workers. Another 30 provisions are being challenged, he said.

About 20 percent of the new law’s provisions dealing with benefits have been found unconstitutional, invalid or inoperable, said Burke, who has filed several successful challenges to the law.

Burke said he initially believed 52 provisions were unconstitutional, but now believes the number is closer to 67.

Earlier this month, the Oklahoma Supreme Court found unconstitutional a key provision in the law that allowed employers to opt out of traditional workers’ compensation insurance if they provided a separate plan with benefits.

The state’s high court in Vasquez v. Dillard’s found that the opt-out component was an unconstitutional special law.

“The Opt Out Act does not guarantee members of the subject class, all employees, the same rights when a work-related injury occurs,” the ruling states. “Rather, it provides employers the authority to single out their injured employees for inequitable treatment.”

Earlier this year, the Oklahoma Supreme Court, in Torres v. Seaboard Farms, tossed out another provision that prevented workers from collecting on cumulative trauma claims if they had not worked for the employer for at least 180 days.

Cumulative trauma is an injury that is caused by the combined effect of repetitive physical activities over a period of time in the course of employment.

Burke said the state’s high court ruled that the Legislature must have a rational state interest in cutting benefits and shifting the financial burden to the injured workers and it did not.

A ruling in another case, Maxwell v. Sprint, tossed a provision that said if an injured worker went back to work, he or she could not collect permanent partial disability benefits. The court found it was an unconstitutional special law.

If an employee lost the use of his or her legs in a bad car wreck and the employer gave the employee a desk job, the employee could not collect the benefit under the law as written, Burke said. No other state has that provision, he said.

Burke believes so many provisions have been tossed out because lawmakers didn’t get a chance to read the bill before they passed it.

Gov. Mary Fallin defended the law in a statement released Friday.

“The National Council on Compensation Insurance just this month filed an overall loss cost level decrease of 10.2 percent for next year,” Fallin said. “Over the past three years, these annual filings have totaled a reduction of 47.4 percent. The most recent reduction reflects the continuing positive effects of the 2013 workers’ compensation reforms. We have seen the rate of claims fall by two-thirds, employees returning to work quicker and costs to employers reduced dramatically.”

The State Chamber of Oklahoma lobbied hard for the reforms.

“I believe Mr. Burke has overstated the level of success attorneys had in their continued assaults on the reforms of Senate Bill 1062,” said Jonathan Buxton, senior vice president of government affairs for the State Chamber. “The attorneys have a vested interest in maintaining the old system, which was failing injured workers and their employers but benefiting attorneys.”

The Legislature, governor’s office and State Chamber are working to address the concerns raised by the court.

“The challenges before the court do not represent the bulk of the reforms of 2013,” Buxton said. “The law is still standing. It is well designed. And it is our intention to continue to fight against the lawyers trying to overturn the will of the people.”

While supporters credit the measure with saving money, Burke said it was done by cutting benefits to injured workers.

“Benefits have been cut by 60 percent, unquestionably, giving Oklahoma the lowest workers’ compensation benefits in America,” Burke said.

The issue is expected to be revisited when lawmakers return to the Capitol in February.

Rep. Jon Echols, R-Oklahoma City, is expected to be the key person in the House on workers’ compensation changes.

He said his goal is to protect the remaining reforms, adding that he has no interest in a “tit for tat” with the judiciary.

“The overall goal is making sure we preserve the reforms that are working,” Echols said.