Another One Bites the Dust: Oklahoma Supreme Court Kills Provision of State’s Workers’ Comp Act

Yesterday (Oct. 3, 2017), in a divided decision, the Supreme Court of Oklahoma struck down Okla. Stat. tit. 85A, § 57 of the Administrative Workers’ Compensation Act (AWCA), which disqualifies an injured employee from continued benefits if he or she misses two or more scheduled appointments for treatment [Gibby v. Hobby Lobby Stores, Inc., 2017 OK 78].

§ 57 Outside the “Grand Bargain”

Noting that § 57 lay outside the “Grand Bargain” set into place in Oklahoma (and other states) approximately 100 years ago that sought to balance the interest of injured employees and employers, the majority held that the forfeiture provision “tips the delicate balance achieved in the Grand Bargain too far in favor of employers and therefore it fails to provide an adequate substitute remedy to injured workers as required by the constitutional mandate of Article II, section 6” [Majority Opinion, ¶ 13]. The majority added that § 57 impermissibly reinstated the concept of fault into a no-fault system.

Separate Statute Provided Incentive to Attend Appointments

Although the majority struck § 57, it declined to follow the claimant’s suggestion that the exclusive remedy provision of the AWCA should be lifted in order that the injured employee could proceed against the employer in the state’s District Court. The majority noted that under Okla. Stat. tit. 85A, § 50(H)(12) (Supp. 2013), an employee who failed to appear for a scheduled appointment with a physician, the employer or insurer was required to pay the physician a reasonable charge, to be determined by the Commission. Moreover, if the employee could not show a good-faith reason for missing the appointment, the Commission shall order the employee to reimburse the employer or insurer for the charge.

Employer’s Argument Disingenuous

The majority acknowledged the employer’s argument, that § 57 was a legislative incentive to injured workers to keep their medical appointments, thus allowing the injured worker to reach MMI as soon as possible. According to the employer, § 57 tended to foster the provision of consistent medical care to injured workers while providing cost savings to employers and preventing fraud and abuse. The majority countered, however, that it defied logic to conclude that arbitrarily cutting off all vested benefits and statutory indemnity furthered any of those goals.

Justices Gurich, Kauger, and Winchester dissented.