BY AL MCAFFREY
Last week, I discussed how Senate Bill 1062, a workers compensation reform bill approved by the Senate, wouldn’t be beneficial for injured workers. This week, I’d like to talk about how this measure would negatively affect employers.
Again, SB 1062 would change Oklahoma’s current workers comp system into an administrative one like that in Arkansas.
As I mentioned, the bill would significantly cut benefits to injured workers while only lowering premiums by a small percentage. I don’t believe that good Oklahoma employers want to cut benefits so drastically for their injured workers who suffer legitimate injuries and widows who have to pick up the pieces after their spouse’s death.
Most of Oklahoma employers deal in good faith. They aren’t interested in sacrificing the quality of compensation and medical care for their workers in exchange for a profit.
But there are also changes in the system that will negatively affect employers.
One section eliminates cumulative trauma injuries, including carpal tunnel, from the use of keyboards or video terminals, from workers comp. This would allow a worker to sue the employer in district court for negligence in providing an ergonomically safe place to work.
Another section greatly limits mental injury claims in workers comp and another doesn’t allow physical or mental stress to be considered in heart attack cases. Again all cases where the employee could sue in district court. A bonanza for trial lawyers – horrible for business!
The bill does attempt to disallow district court claims. However, Oklahoma’s Constitution says, “For every wrong, there must be a remedy.” If it isn’t covered by the workers’ comp laws, district court is the only other place in which to seek a remedy.
This bill takes a step back in the state’s previous efforts to control medical costs. It makes the Official Disability Guidelines [ODG], the strict treatment guidelines only a “reference.” Present law requires the Court to follow ODG, which has proven to cut unnecessary surgeries and pain management by up to 40% in other states.
Another section says the employer isn’t responsible for bills for medical treatment rendered before Notice of Injury is received. If the claim is ultimately found compensable, the employer may have to pay the health insurance company back from its own pocket, since the insurance carrier would be able to escape liability under this section.
A major change is that the bill does away with the Workers’ Compensation Court on Jan. 1, 2017, and transfers all cases to district court. At any time there are approximately 100,000 claims open in Workers’ Comp Court, i.e. permanent and total disability and continuing maintenance medical orders. Litigating these in district court would cost employers and insurance companies huge amounts of money. District court judges aren’t usually familiar with workers’ comp law, guaranteeing costly appeals.
There’s another section that I believe is completely unconstitutional. It proposes that if an employer opts out of the administrative workers’ comp system, they’re immune from common law negligence actions in district court. An employer is only immune from district court liability and unforeseen, runaway jury verdicts if it’s part of the statutory workers’ comp system.
If the employer opts out, common law negligence is a certainty.
The bill would also require opt-out employers to follow all federal laws such as ERISA. This makes defending a disputed injury claim incredibly expensive in federal court, versus the inexpensive defense of a claim in the present Workers’ Comp Court.
SB 1062 also sets up an appeal process for a denied claim. The employer appoints a committee to decide the appeal then goes to state or federal district court. This is an incredibly bureaucratic and costly procedure.
Finally, the Mandatory Arbitration sections of this bill will result in costly appeals to state district court. Employers lose when they begin fighting their workers’ comp battles in district court. The average cost of defending a claim before the Oklahoma Workers’ Comp Court is about $1,500 … the cost of defending a claim in district court can be as much as $30,000.
Next week, I’ll discuss how SB 1062 will also hurt taxpayers.
– Sen. Al McAffrey, D-Oklahoma City, represents District 46 in the Oklahoma Senate