In Vasquez v. Dillards, the Workers Compensation Commission found the opt out provisions of the state workers compensation laws unconstitutional.
Under Oklahoma’s newly created workers’ compensation system, employers may provide coverage for workplace injuries under the traditional no-fault workers’ compensation system, which grants employers immunity from civil liability. Alternatively, Employers may also “opt out” of the workers compensation system and instead be governed by the Oklahoma Employee Injury Benefit Act (OEIBA). The newly enacted system requires employers to choose whether to provide workers compensation coverage or to maintain an employee benefit plan under the OEIBA. An employer in Oklahoma who elects to “opt out” not only remains subject to the mandates of the OEIBA, but is also subject to the jurisdiction of the Workers’ Compensation Commission and certain regulations of the Oklahoma Insurance Commissioner. In addition, an employer who “opts out” under the OEIBA maintains exclusive remedy protections, and the exclusive remedy protections are “as broad as the exclusive remedy protections of the Workers Compensation Act, and thus preclude a covered employee’s claim against a qualified employer, its employees, and insurer for negligence or other causes of action.” Neither the AWCA nor the OEIBA allows an injured worker to opt out by waiving his or her employer’s workers’ compensation insurance coverage and retaining the right to assert common-law claims in court.
The Oklahoma Supreme Court found
The Opt Out Act is an unconstitutional special law, creating an impermisible select group of employees seeking compensation for work-related injuries for disparate treatment, in violation of art. 5, §59 of the Oklahoma Constitution.
The Oklahoma Supreme Court did not address any other claimed constitutional deficiencies in the law.
The Oklahoma Supreme Court rejected Dillards claim that the class to be considered is made up of employers, rather than employees.
Title 85A O.S. Supp. 2015 §203(B) provides:
The benefit plan shall provide for payment of the same forms of benefits included in the Administrative Workers’ Compensation Act for temporary total disability, disfigurement, amputation or permanent total loss of use of a scheduled member, death and medical benefits as a result of an occupational injury, on a no-fault basis, and with dollar, percentage and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits contained in §§45, 46, and 47 of this title. For this purpose, the standards for determination of average weekly wage, death beneficiaries, and disability under the Administrative Workers’ Compensation Act shall apply under the Oklahoma Employee Injury Benefit Act, but no other provision of the Administrative Workers’ Compensation Act defining covered injuries, medical management, dispute resolution or other process, funding, notices or penalties shall apply or otherwise be controlling under the Oklahoma Employee Injury Benefit Act, unless expressly incorporated. [Emphasis supplied.]
Rather than providing employees of qualified plan employers equal rights with those of employees falling within the Workers’ Compensation Act, the clear, concise, unmistakeable, and mandatory language of the Opt Out Act provides that, absent the Act’s express incorporation of some standard, such employers are not bound by any provision of the Workers’ Compensation Act for the purpose of: defining covered injuries; medical management; dispute resolution or other process; funding; notices; or penalties. The statutory language itself demonstrates that injured workers under the Opt Out Act have no protection to the coverage, process, or procedure afforded their fellow employees falling under the Administrative Workers’ Compensation Act. There is little question that §203 specifically allows the employers creating their own plans to include conditions for recovery making it more difficult for the injured employee falling within to recover for a work-related injury than a counterpart covered by the Administrative Act.
While finding the opt out provisions unconstitutional, the Supreme Court did not determine whether Vasquez had a viable claim, which was pointed out by the dissent. The dissent said that preexisting conditions and/or degenerative conditions are not covered under the Workers Compensation Act, so it may have been permissible to decline coverage under OEIBA.