OCWR

The Oklahoma Coalition for Workers Rights promotes positive changes in the workplace benefits critical to Oklahoma's working families and advocates for public policies that would establish a fair minimum wage for all Oklahoma workers.

 

We believe good jobs are important for Oklahoma but our working families are more even important.  It's time for Oklahoma politicians to stop loving "jobs" but hating workers.  HELP US!

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The Oklahoma Coalition For Workers Rights (OCWR) is a non-profit corporation formed to promote a better workplace for all Oklahoma employees.  The Coalition is focusing on changes in current law to restore workers’ compensation benefits taken away from Oklahoma’s working families, to stop the erosion of the safety net protecting those Oklahoma workers who find themselves temporarily unemployed, and to promote a higher minimum wage for Oklahoma workers.  The Coalition will vigorously pursue public policies consistent with the issues stated above through education programs, through advocating changes in laws that will help Oklahoma families, and through the promotion of public discussions of issues adversely affecting Oklahoma workers.  Members of the OCWR include worker advocates from diverse groups of employees including organized labor, police, fire, teachers, nurses, vocational rehabilitation advocates, public employees, and many others.

 

Workers’ Compensation

 

Senate Bill 1062 became effective on February 1st, 2014, and has created a disaster for working Oklahomans (and their families) who suffer an on-the-job injury.  Benefits have been cut for workers with disabilities from 30-90%.  Rights to recover have been stripped from Oklahoma employees by allowing employers to opt out of the system altogether while granting those employers full legal protection by allowing them immunity from employee legal actions.  Legislative and business leaders have touted the changes as helping workers by making the system easier to manage without mentioning the disastrous benefit cuts that will result in Oklahoma workers receiving the lowest disability benefits in the United States.  The OCWR is calling for these misrepresentations to end now and that benefits to Oklahoma workers be restored.  The new law is resulting in a huge amount of waste through needless litigation that will show that these changes made on the backs of our workers are clearly unconstitutional and have resulted in a system where the exclusive remedy that workers’ compensation is intended to provide is no remedy at all. 

 

Unemployment Compensation

 

Changes in eligibility for unemployment benefits has resulted in new hurdles an employee faces when applying for jobless benefits. New restrictions have been enacted which intend to deny benefits by expanding the definition of employee misconduct to include simply not living up to a supervisor’s expectations.  These expansions of the definition of misconduct are creating an unlevel playing field for Oklahoma employees seeking benefits to get them through a period of unemployment.  The OCWR believes these erosions of workers rights should end and that fair and equitable definitions of who is able to recover unemployment benefits should be enacted.

 

Minimum Wage

 

Increases raising the minimum wage in the Congress have stalled in recent years, a victim of Congressional inaction.  Oklahoma should join the states who have passed state minimum wage laws to insure all Oklahoma workers receive a living wage.  The OCWR is calling for our legislature to enact a state minimum wage of at least $9.75 per hour.

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October 20, 2016

 

 

All Too Predictable

 

 

Today’s Tulsa World article “Workers Comp Commissioner Defies Gov. Fallin's Demand For Resignation” includes information that, at first, seems shocking.  A Governor, upset by actions taken by administrative law judges and by duly appointed Commissioners who actually have gathered facts, weighed evidence, and issued a decision (that could be appealed if it is contrary to law), asks the Chairman of the Commission to resign because she, apparently, did not agree with a Commission decision.

 

Using the Office of the Governor to remind Commissioners that they better let her ideology, not the facts presented in a case, be their guide to fulfilling their oath to maintain judicial independence is, of course, reprehensible and possibly an unconstitutional act that may violate her oath of office.  Why would she do such a thing?

 

The answer to that question is, of course, many times worse than this recent questionable action taken by the Governor.

 

The 2013 workers’ compensation reforms were intended, first and foremost, by their chief proponents, to be an attack on judicial independence with Oklahoma’s injured workers serving as collateral damage.  The intent of the legislation was to write such a one-sided, grossly unfair, unconstitutional workers’ compensation law so that when the Oklahoma Supreme Court confirms its unconstitutionality the Oklahoma State Chamber of Commerce could use that decision to gain new allies for “judicial reform”, to try to put pressure on the Oklahoma Supreme Court to be more “business friendly” in its decisions.  That was the reason the workers’ compensation law was written through the unprecedented process of locking out everyone but business lobbyists as the law was being drafted and enacted.

 

Many workers’ compensation experts…No, that’s wrong, nearly all workers’ compensation experts warned of the many problems in the law being considered in 2013.  That includes the Oklahoma Workers’ Compensation Advisory Council, whose members were appointed by the Governor and Legislature to review all proposed legislation to insure that new provisions will be constitutional and will, if implemented, result in the consequences intended by those seeking changes.  That Council, and all other groups not representing employer’s interests, were not allowed a voice because the Chamber’s intent was clear.  If the Oklahoma Supreme Court finds the new act to be lawful, great, Oklahoma has the lowest benefits and worst worker protections in the United States.  If the Supreme Court finds the new law unconstitutional, great, we will have new issues to attack the Oklahoma Supreme Court with and rally employers to our cause.  You have to give the Chamber credit.  Usually you would not have such a complicit Legislature and Governor that such a ploy would ever work.  Conditions aligned perfectly, including a Senate leadership who, likely, never believed they would be deceived in such a manner by their close friends at the State Chamber and a House Speaker who wanted business support for a run for the US Senate.  Which brings us to the Governor.

 

She knew better.  She understood that many provisions in the new Act were either unconstitutional or blatantly one-sided.  However, taking a stand would mean standing up to the Oklahoma State Chamber of Commerce, something she was unwilling to do then and, as evidenced by this morning’s Tulsa World article, something she is unwilling to do now.

 

Her actions to pressure her own appointed Commissioners are not the result of some independent investigation done by her office, gathering facts and weighing various sources.  She is simply responding to complaints from the State Chamber of Commerce that, while the Commissioners are conservative, they just are not conservative enough.  There are many, many decisions issued by the Commission that, by simply following the law, result in denied or substantially reduced benefits for workers even though the worker feels the law is unconstitutional or that it has been misapplied.  In those cases labor groups and worker advocates would love to go to the Governor to seek justice and revenge but, instead, assert their due process rights to have the decision reviewed by an independent judiciary through an appeal.  But, apparently, when decisions are made that the State Chamber objects to they assert their influence over the Governor to intervene to bias future decisions of the Commission.

 

As political as this sounds in this silly political season, it has to be said.  Governor, please stop being a puppet for the State Chamber of Commerce, stop taking such a narrow view of the constituency that elected you twice, and start standing up for the people who count on you, the working men and women of Oklahoma.

 

 

Michael Clingman

Oklahoma Coalition for Workers Rights

 

October 5th, 2016

U.S. Department of Labor Issues Report on State Workers' Compensation Benefits

 

 

The U.S. Department of Labor has issued a new report which makes the case that state's have been systematically slashing benefits and restricting eligibility over the last decade to the point where federal legislation may be needed to insure workers receive adequate workers' compensation benefits.

A copy of the report can be found here:

May 25th 2016

 

 

Oklahoma Legislature Continues Assault on Working Oklahomans

Stop HB 2205!

 

 

Yesterday the latest version of HB 2205 was filed amidst reports that it is “clean-up legislation”.  Actually, its yet another attempt to strip Oklahoma workers of benefits, assuring that our workers are compensated for injuries at the lowest rate in the nation while allowing additional hundreds or even thousands of new employers to opt out of the system with totally inadequate financial security for employees.  It is shameful and should not be approved.

 

HB 2205 guts the latest Supreme Court case, Maxwell v. Sprint, by forcing an over 30% cut in benefits to a worker lucky enough not to have a limb amputated but not lucky enough not to have lost most of the use of that arm or leg.  Under this punitive legislation a worker who were to have a leg amputated would receive $88,825 (a shockingly low sum for an amputated leg anyway!) but someone with a 75% impairment to the leg (which would eliminate a worker from most jobs they would otherwise be qualified for) would receive a woefully inadequate $33,915 rather than the current $66,619 they are entitled to, a 50% cut in benefits.  It is unconscionable this would actually be considered to be passed by our elected representatives.

 

In addition HB 2205 does nothing to address the underlying problems with allowing employers to opt out of the system, a law that was recently found unconstitutional by the Oklahoma Workers’ Compensation Commission.  Instead it doubles down on a bad law by allowing two or more employers to bind together as a “controlled group” (whatever that is) which allow presumably thousands of employers to opt out in the same plan, setting up essentially new insurance companies with no capital and no ability to give even a minimal assurance that the group could meet its obligations.  The financial strength of insurance companies is the foundation all citizens rely on to be sure that the company will be in business to pay a claim.  This bill allowing workers to be insured by schemes with no capital and surplus, and no joint and several liability, can only mean our Legislative leaders don’t believe Oklahoma workers deserve the same financial security as everyone else in Oklahoma who purchases insurance from legitimate sources.

 

HB 2205 specifically strips the power of the Oklahoma Workers’ Compensation Commission from determining the constitutionality of provisions, presumably as punishment for its recent decision.  Oddly, however, it reaffirmed it is a court of competent jurisdiction, the statute the Commission relied upon for its decision in the first place.

 

There are many other dangerous provisions in HB 2205 too complex to address here.  But the bottom line is that this bill is terrible for working Oklahomans and should not be passed by our Legislature.

 

Michael Clingman

May 2, 2016

 

Supreme Court Rules Key Provision Unconstitutional, Restores Some Benefits Slashed By "Reform"

 

 

April 13, 2016

 

On Tuesday, April 12, the Oklahoma Supreme Court rendered a decision in the case formerly known as Damien Lequint Smith v. Baze Corp. Investments. After consolidating several cases the new order in Maxwell v. Sprint, Smith v. Baze Corp (et. al.) finds that deferral of permanent partial benefits simply because a worker returns to employment is unconstitutional as a denial of due process of law. In addition, the Court also found it violated the Constitution as a special law, writing, "The Legislature is without power to vary the effect of a permanent partial disability award by excluding one group of claimants from benefits accorded other permanent partial disability recipients."

 

This is very good news to thousands of working Oklahomans who have been unlawfully denied benefits owed to them for a permanent disability. It also addresses one of the most unfair aspects of the new workers' compensation law which required workers to settle their case for a fraction of what they were owed by their employer and forfeit all future benefits for their injury simply to get enough money to make up for the loss of income caused by their period when they were unable to work.

 

The Supreme Court also reestablished that injuries to scheduled members (legs, feet, arms hands, fingers, toes, eyes, etc...) exist on a permanent partial disability basis and that those injuries are not required to be rated for impairment by the 6th Edition of the AMA Guides which formerly required to rate all permanent impairment. This provision should restore those non "body as a whole" injuries to benefit levels that existed before the "reforms" enacted in 2013. This will result in at least a 30% increase in benefits for most scheduled member injuries. I will try to explain this in English.

 

The Oklahoma Legislature and Governor did not want to be criticized for cutting benefits for workers who suffer devastating injuries such as amputations. Oklahoma never has had particularly high benefits for amputations but the cut they were forcing on other injuries would drop amputee benefits to the second lowest in the nation. To prevent the political fallout of cutting benefits for the relatively few Oklahomans suffering the total loss of use of a limb, or sight in an eye, they tried to leave those injuries out of the draconian cuts in benefits by leaving the schedule unchanged for total loss of use of former scheduled members while attempting to cut benefits from 30-50% for partial loss. So if a worker at least retained some use of a limb their benefits were slashed and that, of course, is the case in the vast majority of all injuries.

 

In the latest decision, the Supreme Court re-established that partial loss of use should also receive benefits as a portion of what an amputee would receive and not have their benefits reduced by evaluating their injury using the AMA guides (which could be a 20% or more benefit cut) and not applying that award to the new schedule of benefits (which would cut the benefits an additional 30%). The Supreme Court's finding that scheduled members still exist in the law restores benefits to many permanently disabled workers who have had their benefits unfairly cut.

 

Two arguments that were presented to the Supreme Court in these cases have yet to be addressed.

 

In this case the Supreme Court found that, since the injuries before them should never have been required to use the AMA Guides exclusively because the injuries were scheduled members, they will reserve arguments that the exclusive use of the AMA Guides is unconstitutional. Many believe exclusive use of the AMA Guides violates constitutional due process because a worker is unable to present other evidence of disability beyond those calculated by the Guides (the Guides themselves warn not to use them that way). Finally, arguments that the entire new scheme of benefits and lack of worker protections enacted by the Legislature violate the Oklahoma Constitution (because the scheme does not rise to the level of a remedy required by Article 2, Section 6, of the Oklahoma Constitution) have yet to be considered by the Court.

 

Regardless of challenges yet to be heard, the Oklahoma Supreme Court has, in this case, affirmed that workers in Oklahoma do indeed have rights and have restored benefits that were unconstitutionally reduced and unlawfully withheld from workers. Of course the State Chamber President Fred Morgan, in quotes in the Daily Oklahoman, restated the myth that this has something to do with moving to an "administrative system". That lie has been repeated often during the past two years to obscure the drastic cuts in benefits and worker's protections this law imposed on Oklahoma working families. All Oklahoma families should thank the Oklahoma Supreme Court for its courage and its commitment to the Constitution of Oklahoma and to the citizens of Oklahoma.

 

Michael Clingman

Oklahoma Coalition for Workers Rights

 

 

 

 

Suprme Court Hears Arguments in Smith Case

 

On Wednesday, September 30th the Oklahoma Supreme Court heard oral arguments in the case of Damien Lequint Smith vs. Baze Corp. Investments.  The most important issues at issue in this case are whether the adoption of the 6th Edition of the AMA Guides to exclusively decide the amount of permanent impairment for all injuries constitutes an unconstitutional violation of due process guaranteed by Article 2 §7 of the Bill of Rights section of the Oklahoma Constitution and whether the overall scheme of benefits adopted by the Oklahoma Legislature violates Article 2 §6 of the Bill of Rights section of the Oklahoma Constitution which guarantees access to the Courts to seek a remedy “for every wrong and for every injury to person, property, or reputation.”

 

Arguing the case were Bob Burke for the Plaintiff, Preston Hanner for the Respondent, and Oklahoma’s “Solicitor General” Patrick Wyrick for, um, the citizens of Oklahoma?  It was Mr. Wyrick’s statements that provided the most puzzling and damaging arguments regarding the rights that all citizens of Oklahoma take for granted.

 

Of course, defending a law as draconian and ill conceived as Oklahoma’s current workers’ compensation law requires a rather stark and radical view of what workers’ compensation is intended to accomplish.  In demonstrating skill and creativity in adopting such a view Mr. Wyrick did not disappoint.  He stated workers’ compensation is intended to only provide “baseline benefits,” benefits to prevent the worker from becoming “a ward of the state.”  He said that it is perfectly reasonable and permissible to deny all workers recovery for disabilities if they can return to work.  Thus, in his view, every worker not crippled or permanently totally disabled should have no expectation of recovery for a disability.  He reminded the Justices that in the case before them Mr. Smith received medical care free from having to pay co-pays and deductibles and all costs for medical care were borne by the employer.  In his view of workers’ compensation medical care seems to be the only essential benefit for a worker not totally disabled.  It seemed that only the allotment of time would prevent us from hearing those Dickensian queries regarding the continued existence of poor houses and prisons so that Mr. Smith may find the added relief he may require.

 

I don’t need to spend much time explaining how fundamentally wrong these views of workers’ compensation are.  There is nothing baseline about the intent of workers’ benefits, nor are they, of course, designed to provide just enough crumbs to prevent a worker from becoming a ward of the state.  At heart is the “Grand Bargain”, fashioned over one hundred years ago, which required employers to begin to provide workers with reasonable benefits regardless of fault while removing the ability for the worker to assert a claim of injury before a jury, as is their right, which could be costly and disruptive for a business. The “Bargain” has served the country well because states are aware of the constitutional restrictions on workers included in it that must be addressed by including reasonable benefits.  The “Bargain” served Oklahoma employers and employees well for the first 99 years of the system.  This year, in our 100th year, not so much…

 

A workers’ compensation system that does not include the ability to recover for permanent disabilities simply because of a temporary return to work is missing the greatest protection a worker needs when offering his or her labor.  A 40 hour a week job constitutes only 24% of a worker’s week.  Any citizen should have the right to go about the other 76% of the time pursuing activities of daily living to the greatest extent that their health can allow.  A disability, even a minor one, can greatly affect both the current quality of life of a worker and their future wage earning capacity.  When a worker agrees to share his or her labor for wage compensation, becoming disabled was never part of the agreement.  Every state workers compensation system wrestles with this concept because, obviously, employers want to limit recovery for permanent disability and employees want to receive as much for a permanent disability as possible to in some way compensate them for their diminished quality of life and the possibility of loss of future wages.  Oklahoma has entered the world of total disregard for our working men and women by deciding the employer should not be forced to give any compensation for permanent disabilities so long as there is a temporary return to work.  It is wrong, and it was painful to watch, an Attorney General distorting the intent of workers’ compensation systems.  He could not be more wrong, nor could he show any more disdain for Oklahoma employees.

 

But, believe it or not, that is not the most startling part of our Attorney General’s argument before the Oklahoma Supreme Court.

 

More important, under questioning from the Justices, Mr. Wyrick laid out his theory of what the Bill of Rights sections in our Constitution actually means.  But first:

 

You, I , and every other Oklahoman have some general belief in what it means when we adopt a constitution granting individual citizens’ rights.  These concepts can be traced back to the Magna Carta, if not all the way back to Plato and ancient Greece.  Broadly stated, even in monarchies, the King has rights, the collective people have rights, and the individual has certain enumerated rights. In American democracy, those rights can be found in our Constitution.  In the Oklahoma Constitution, Article 2 specifically is called the Bill of Rights.  There you can find a number of rights spelled out, including the right to life, liberty, and the pursuit of happiness (§2), the right to due process of law (§7), the right to bear arms (§26) right of assembly (§7) and, the operative right being asserted in the current case, the access to courts to seek a remedy for every wrong and for injury to person, property and reputation (§6).

 

The same Oklahoma Constitution also creates the Legislature and grants it specific powers to adopt laws in accordance with the Constitution.  It also creates a Judicial Branch to carry out the rights enumerated in Article 2 and to rule on Legislative actions that may violate the Oklahoma Constitution.  It is that power, vested by the Constitution in a Supreme Court, that brought everyone to Wednesday’s Hearing.

 

During the hearing Mr. Wyrick, Assistant Attorney General and designated Oklahoma’s Solicitor General by the actual Attorney General Scott Pruitt, argued that rights set out in our Bill of Rights only exist to the extent that the Legislature allows them to exist and that the Legislature, in the case at hand, has the power to grant or bar individuals the power to seek a remedy by either allowing, or removing, an individual’s right to make any claim.  It was an extraordinary pronouncement, one that did not escape the Justices’ notice.  Through numerous questions, Mr. Wyrick stood firm.  These so called rights only exist to the extent the Legislature chooses to allow them to exist and the Courts of this state must follow the Legislature’s mandates to allow, or not allow, access to the Courts to address a remedy in Article 2 §6.

 

It follows that, if the Legislature may assert power over one section of the bill of rights modifying or negating the rights it grants then they somehow have the inherent power over any right granted individuals in our constitution.  That is why Mr. Wyrick’s interpretation was so extraordinary.  The “People’s Lawyer” as Attorneys General have sometimes called themselves, should, of course, first and foremost, defend individual rights even if it means limiting legislative powers to remove or provide inadequate remedies to our citizens.

 

As the former Secretary of the Oklahoma Senate there is no one who respects the work and dedication of our Legislative branch more than I.  I can tell you no Senator I worked with would ever dream of thinking that somehow they could pass statutes which could suspend or remove individual rights granted by Article 2 of the Constitution.

 

Now if I were reading this article I would begin to become highly skeptical that what I am describing actually occurred during an oral argument in the Oklahoma Supreme Court.  But, I assure you, it did!  Mr. Wyrick, under questioning, stated this view in many different ways.  He said the Legislature has the power to “allow claims to be made in the Courts and the power to remove claims from being made in our Courts.”  He stated that if the Legislature decided to not allow a heart attack suffered on the job to be eligible under workers’ compensation they could also bar the same heart attack victim from seeking a remedy in the Courts.  Through several questions from Justices he remained firm in his interpretation of the power of the Legislature to trump individual rights presumed to exist for individuals in this state.  Presumably, in the Attorney Generals view, our Supreme Court has no role in determining what statutes may violate any right previously thought to be enjoyed by our citizens.

 

It is this argument that has led me to the realization that I may have to go through the trouble of changing the name of this Organization.  It looks like the danger could extend far beyond just workers’ rights and that we should seriously consider becoming the Oklahoma Coalition for the Rights of All People, or, OCRAP!

 

Michael Clingman

Oklahoma Coalition for Workers Rights

 

 

 

 

 

 

 

 

 

 

Oklahoma’s Workers’ Compensation Benefits, Lowest in the United States

 

September 8, 2015

 

Much has been written regarding Oklahoma’s recent workers’ compensation reform laws resulting in the lowest benefits and worst workers’ protections in the country.  Almost daily examples of abuses come to light; sometimes these are cases that arise when employers have opted out, seizing control of all aspects of a claim leaving workers with no independent agency to quickly review the case and start benefits.  But all too often these examples involve the new workers’ compensation system itself.  In the last week an appeal was filed to attempt to reinstate benefits to a worker who missed two medical appointments and had all benefits cut off and the entire claim dismissed.  I could only imagine what would occur if businesses missed two sales tax remitting deadlines and had their doors shuttered?  Or what if an insurance company missed two benefit payment deadlines and had to forfeit its license?  Also this week there was a case where a worker, without being represented by an attorney, was told he could pick up a settlement check only to learn that it was 70% less than it would have been two years ago and, more importantly, was told he could either accept the check and resign his employment or he could keep his job and get nothing.

 

These injustices will unfortunately continue during the coming months as more workers are faced with the numerous negative provisions of the workers’ compensation act.  But what of the “normal case” (if that exists) and claims that Oklahoma’s indemnity benefits are the lowest in the nation?  It is hard to conceive that any state could provide lower benefits but some argue that is the case.  With that in mind I have reviewed benefit levels in states across the United States and, unfortunately, the result for Oklahoma workers is even worse than I suspected.

 

Oklahoma workers’ benefits for permanent total disability, death claims, and injuries involving an amputation were not changed by the reforms.  However, the adoption of the 6th Edition of the AMA Guides as the sole factor in determining permanent partial disability, the capping of maximum temporary total disability at 70% of the state’s average weekly wage, the 30% cut in permanent partial disability benefits (PPD), and the forfeiting of all PPD benefits upon an offer to return to work, leaves Oklahoma’s workers with permanent partial disability as the least compensated workers in the country.  And even many workers who have suffered amputations have had a cut in benefits due to the cut in temporary total disability benefits (without even going into the dismissal of an amputee’s entire claim should he or she miss two medical appointments!). These reasons, and others, are the major factors involved in questioning the constitutionality of the current system as not providing an adequate remedy for injured workers. Let’s look more closely at how Oklahoma ranks among other jurisdictions in the area of permanent partial and temporary total disability.  The information compiled below was done with the help of the Workers’ Compensation Research Institute and the International Association of Industrial Accident Board and Commissions who publish comparisons of state workers’ compensation laws.  In addition, numerous individual state statutes were reviewed to get a better understanding of how each jurisdiction administers these provisions.

 

 

Sixth Edition of the AMA Guides as exclusive determining factor for permanent partial disability awards

 

 

It is hardly even disputed that the publishing of the 6th Edition cut the amount of impairment that had been previously provided by earlier editions of the Guides.  Regardless, all editions of the Guides have warned against using them as the only factor in determining the amount of disability.  Oklahoma ignored that warning by adopting the Guides (including its cut in impairment ratings) and excluding all other evidence a hearing officer might use to determine the proper amount of disability that should be compensated.

 

For those unfamiliar with the method of how permanent partial disability (PPD) payments are calculated in most states, including Oklahoma, I will summarize that process.

 

The amount of PPD payments awarded to an injured worker to compensate him or her for a permanent disability is determined by how much permanent impairment the worker has (say 10%), the maximum number of “weeks” the law allows for a permanent partial disability (in Oklahoma that is now 350 weeks) and the amount per week that a worker receives (in Oklahoma the maximum is now $323 per week).  Thus, a worker with a 10% disability multiplies .10 by 350 weeks which calculates to 35 total weeks.  You then multiply those 35 weeks times the weekly maximum of $323.  In this case, a 10% disability would mean a worker receives $11,305 in PPD benefits.

 

Any reduction in the amount of impairment awarded, the number of total “weeks” allowed by law, and the amount per week a worker receives results in a cut in benefits.  The portion of the above calculation affected by the AMA Guides, 6th Edition, is the % of impairment a worker is entitled to (the hypothetical 10% impairment used above would be reduced to 7% or 5% by the AMA Guides, 6th Edition).

 

Only 12 states and the District of Columbia have adopted the AMA Guides 6th Edition, perhaps a repudiation of the logic introduced in this version.  However, a closer look reveals that no state that has adopted the 6th Edition has the combination of the low number of total weeks that PPD is applied against (Oklahoma caps PPD at 350 weeks), the low weekly benefit rate ($323) and the use of the Guides while excluding all other evidence from being presented to allow a hearing officer to make the fairest possible finding regarding a workers’ disability. A review of laws in place in the other states that have adopted the 6th Edition indicate they all have significantly better benefits than Oklahoma:

 

Alaska’s maximum PPD weekly rate is calculated at 120% of the state’s average weekly wage (AWW).  Oklahoma’s PPD weekly rate stands at 40% of AWW, leaving Oklahoma with maximum benefits at more than 40% below Alaska’s.

 

Arizona per week maximum benefit is $768, more than double Oklahoma’s $323.  Arizona allows for the introduction of other factors to address limitations in the Guides (age, occupation, etc…)

 

Washington D.C. maximum weekly benefit is $1441, almost five times Oklahoma’s $323.  Like Arizona, other factors are considered (in the future I will refer to these states as having “other factors considered”.  This is extremely important because it addresses the self-stated limitations of impairment guidelines to consider awards for disability, clearly two separate things).

 

Illinois maximum weekly benefit is $721, more than double Oklahoma’s.  Other factors are considered.

 

Mississippi maximum weekly benefit is $449, 30% above Oklahoma.  In addition, Mississippi allows for wage loss considerations

 

Montana maximum weekly benefit is $350 per week, only 8% above Oklahoma’s, but they also use a 400 week schedule rather than Oklahoma’s 350 weeks.  Thus, the same injury in Montana would provide 24% more benefits than in Oklahoma.

 

New Mexico maximum benefit is $760, 135% above Oklahoma’s.  Other factors are considered

 

South Dakota allows for fewer weeks of benefits than Oklahoma (312 rather than 350) but provides a maximum weekly rate of $691.  Thus, the same injury in South Dakota would provide double the benefit that Oklahoma provides.

 

Tennessee maximum benefit is $835, with a maximum of 400 weeks.  Other factors are considered.

 

California’s maximum benefit is $290 but applied to much higher number of weeks.  California also gives $6,000 in Supplemental Job Displacement Benefits.  In addition, other factors are considered.

 

Wyoming allows other factors to be considered as well as higher maximums in a complicated schedule with several tiers to determine disability.

 

Conclusion: While other states have adopted the 6th Edition of the AMA Guides no state that has adopted the Guides has provided workers with the combination of low weekly benefit rates (40% of state’s average weekly wage) low total weeks (350) and no ability to consider outside factors as has Oklahoma, leaving our workforce easily with the lowest benefits among states that have adopted the 6th Edition of the Guides.

 

States with a lower number of weeks for PPD payments than Oklahoma’s 350 weeks:

 

There are 10 states that appear, on the surface, to provide lower benefits than Oklahoma because they provide a maximum of less than 350 weeks of benefits for permanent partial disability.  Upon further examination, however, Oklahoma’s combination of the 6th Edition of the AMA Guides and low weekly benefits ($323) again results in Oklahoma having the lowest benefits in the nation.

 

Delaware has a 300 week maximum benefit but has a weekly maximum rate of $660. That combination results in benefits being 75% higher than Oklahoma for similar injuries. No AMA Guides have been adopted.

 

Georgia has a 300 week maximum benefit but has a weekly maximum rate of $525.  That combination results in benefits 40% higher than in Oklahoma for similar injuries.  The 5th Edition of the AMA Guides is used.

 

Alabama has a 300 week maximum benefit with a $220 weekly maximum rate.  This combination results in benefits approximately 35% below Oklahoma’s.  However, no AMA Guidelines have been adopted so hearing officers may consider all factors in determining disability, negating the effect of the low benefit maximums.  As in all states, as I will discuss later, the forfeiture of benefits for over 75% of workers suffering a disability due to a return to work offer from an employer easily brings Oklahoma below Alabama but, for some workers, Alabama and Oklahoma have the dubious distinction of having comparably low PPD benefits.

 

Hawaii has a 312 week maximum, but has a weekly maximum rate of $770, resulting in more than twice the benefits than Oklahoma.  Hawaii uses the 5th Edition.

 

Nebraska has a 300 week maximum but has a weekly maximum rate of $747, resulting in nearly twice the benefits than Oklahoma.  They have not adopted impairment guidelines.

 

Ohio has low impairment schedules (200 weeks, $283 per week) but applies wage loss benefits on top of impairment resulting in benefits exceeding those in Oklahoma.

 

South Carolina has a 340 week maximum, but has a weekly maximum of 100% of the states average weekly wage resulting in benefits 100% higher than in Oklahoma.  No guidelines have been adopted.

 

Texas has a 300 week maximum, but has a weekly maximum rate of $595 resulting in benefits 58% above Oklahoma’s.  The 4th Edition of the AMA Guides are used in Texas.

 

Utah has a 312 week maximum, but has a weekly maximum of $521 resulting in benefits 43% higher than in Oklahoma.  Utah has adopted their own impairment guidelines in combination with the 5th Edition of the AMA Guides.

 

Conclusion:  Oklahoma’s relatively low 350 week maximum coupled with its extremely low 40% of the state’s average weekly wage as a weekly rate places Oklahoma among the very lowest in benefits.  When the use of the 6th Edition is applied, Oklahoma falls to the lowest, although, for some injuries, Alabama may be comparable.

 

Temporary Total Disability

 

Only two states in the country have lower weekly maximums for temporary total disability benefits (TTD) than Oklahoma’s maximum benefit of $572.  Those states are Georgia ($525) and Mississippi ($449).  These lower weekly benefits are, in part, due to the lower average weekly wage in those states.  It’s worth noting, however, that both of those states have significantly longer periods of temporary disability allowed than does Oklahoma (400 and 450 weeks, respectively).   Oklahoma cuts TTD off after 104 weeks.

 

Conclusion:  When the allowance for Oklahoma’s lower duration is considered along with the forfeiture of permanent disability benefits in Oklahoma for all those with job offers, Oklahoma’s TTD benefits become easily the lowest in the nation.  Many workers use permanent disability payments to help make up for loss of income that low temporary total benefits cause.  Oklahoma no longer allows this for a majority of workers, making the low temporary rate that much more of a hardship.

 

 

Deferral (forfeiture) of PPD Benefits

 

The provision that a job offer allows workers’ benefits for a permanent disability to be forfeited makes Oklahoma unique among all workers’ compensation systems.  Some contend this is similar to states with so called “wage loss” systems first enacted (and later abandoned) in Florida.  Those states allow evidence regarding lost earning capacity, both past and future, to receive benefits that sometimes replace traditional PPD benefits but usually supplement PPD in case of significant impairment.  Regardless, the existence of a job offer does not let benefits be deferred, especially in the case of Oklahoma where, with the average impairment, a worker need only work 6-8 months to never have a claim to permanent benefits regardless of the possibility of future wage loss (or even when it is absolutely certain that there will be future wage loss). This provision raises the very real question of whether a remedy still exists for a worker who suffers a permanent disability, a remedy guaranteed by the Oklahoma Constitution.

 

 

Summary:  Methods of deciding PPD benefits vary widely among jurisdictions in the United States.  Oklahoma, however, not only is out of the mainstream but finds itself to be an extreme outlier when it comes to benefits for Oklahoma’s working families.  The lack of benefits places burdens on other social insurance systems (welfare. Medicaid, Social Security Disability, health insurance premiums, and other commercial insurance costs).  Oklahoma’s legislature must restore the basic benefit structure that was in place before February of 2014 and let the new Workers’ Compensation Commission administer a law that is fair to both employers and employees.

 

Michael Clingman

April 23, 2015

 

Setting the Record Straight

 

 

With Wednesday’s morning’s delivery of The Oklahoman (April 22nd) comes yet another article highlighting the “Oklahoma Option” with Bill Minick, the Texas insurance broker promoting those plans in Oklahoma, once again answering questions regarding the law allowing employers to “opt-out” of the workers’ compensation system. We will continue our best to set the record straight, addressing issues that have been omitted from opt-out proponents explanations, for whatever reason.

 

In The Oklahoman article he answers four questions teed up for him by Paula Burkes with no follow-up.  Lets dive right into these issues, although I admit it gets a bit complex.

 

The first question posed by Burkes was, “why is the Oklahoma Option important?”  This answer should be a picture of truth and conciseness because his answer should be, “because it makes employers a great deal of money by retaining funds that were previously given to injured workers, stripping employees of all of their rights, and because I can make a ton of money selling these plans that are highly advantageous to employers.”  His actual answer provided to the Oklahoman readers was that the Oklahoma Option makes insurance companies compete with insurers offering opt out plans, that the law is similar to the one in Texas which is saving employers “billions of dollars” and that better worker benefits are being paid in Texas from opt-out employers.  Lets take a look at this claim.

 

The truth is that traditional insurance companies can in no way compete with those who provide opt-out plans.  Each insurance company cannot write its own statutes regarding what is and is not covered, cannot appoint its own commission and judges to determine how to interpret those statutes, and cannot be in business with very minimal capital and surplus in case of bankruptcies.  Opt out plans are immune from any laws designed to protect the rights of those covered employees as they access the workers’ compensation system.

 

And the Oklahoma Option is not really similar to Texas because Texas does not require employers to cover on-the-job injuries.   Employers who do not buy coverage face the possibility of lawsuits from their employees if an injury occurs.  The Oklahoma law (unconstitutionally in my opinion) gives Oklahoma employers who opt out immunity from lawsuits in district courts. The most important decision facing Texas employers when deciding whether to provide coverage (providing workers benefits and receiving immunity from lawsuits, which is the number one reason a Texas employer would choose traditional insurance) becomes moot.  The Oklahoma Option is absolutely unfair and non-competitive for Oklahoma insurers.

 

As to the “billions of dollars in savings” Minick mentioned which has occurred in Texas, the savings are overstated.  In an earlier Oklahoman article he claimed that 1.4 million workers in Texas worked for opt-out employers.  Covering 1.4 million workers should not have total costs of even $1 billion, much less “billions”, especially not a state with benefits as low as those in Texas.  But, taking him at his word, a more accurate statement would be that Texas has managed to cost-shift billions in worker injury costs upon the backs of workers and other public benefit systems.  As to higher benefits, it is easy to give a 10% benefit increase to one out of ten employees if you are able to deny the claims of the other nine out of ten employees.  I’m not saying all opt-out plans pay higher benefits than traditional workers’ compensation; its just not that hard of a trick to provide some higher benefits when an employer has total control.

 

The second question was, “what injury benefits are paid under the Option?”  Minck’s answer was that the Option must pay, at a minimum, the same dollar, duration, and percentage limits as workers’ compensation.  He adds that many Oklahoma Option policies pay higher benefits in some plans.  Bill Minick knows very well the greatest potential for savings are not in the benefit levels paid but rather in the decision to pay at all, and in how those payment decisions can be disputed.  Plus, state law, when requiring the same durations, does not refer back to medical durations, allowing caps to be placed upon medical treatment, the most expensive benefit delivered in most states.  Regardless, just pose this question to any friend you have who is in the insurance industry. Ask would your friend prefer to write a policy covering workers who can easily access state commissions and courts to enforce their rights, or a policy with double the indemnity benefits but the insurance company is in total control over delivering those benefits with covered employees having virtually no ability to challenge your decisions? I think you would find 100% opting for the latter policy.

 

The third question was, “how is the Oklahoma Option performing for workers and employers?”  His answer, predictably, is that the Oklahoma Option is delivering improved results for injured workers and making Oklahoma a better place to do business.  One could imagine that if the Oklahoma Option was drawn differently, giving employers the right to fire up to 5% of employees each year with those workers not being entitled to unemployment benefits and with the employee either evicted or his or her home deeded over to the employer, he could say that the Oklahoma Option is resulting in much higher overall worker productivity and is making Oklahoma a better place to do business.  The fact is that there is no data at all to suggest the Option is working better for employees, but it can’t be denied that it is saving money for employers who are shifting the costs of work injuries to others.

 

The fourth question was, “are there legal challenges to the Oklahoma Option?”   Minick concedes that a challenge has been filed, that the challenge involves two employees who allege they were not treated fairly, that the suit was filed against the Insurance Commissioner, and that Option plans must use the same claim process in place for private employer sponsored benefit plans.

 

In fact, the legal challenge was filed against the Insurance Commissioner because he continues to approve plans that do not give employees the same rights as those in the workers compensation system in several key areas including notice provisions that would allow employers to deny claims, and several others.  The two injured workers believe they have been wronged, but opt-out plans only allow them to appeal a decision to the Workers’ Compensation Commission if they can show the employer did not follow their own, possibly illegal, plan.  So the plans are being challenged, along with the Insurance Commissioner’s decision approving the plans.

 

A quick reading of Minick’s answer might confuse the reader into believing that the opt-out plans require the same claims process as those established in workers’ compensation.  That’s a fair interpretation, given that employers are being granted immunity from employee lawsuits in Oklahoma by having an approved plan.  What Minick is actually alleging here is that employees have the same process as ‘private, employer sponsored plans”, meaning benefit plans other than workers’ compensation.  He is again alleging that filing these plans, which bring employers into compliance with state workers’ compensation statutes requiring coverage and providing immunity from tort cases brought by employees in state court, are under the jurisdiction of U.S. District Courts. He is alleging state laws are pre-empted by ERISA.

 

In fact, as I have stated elsewhere, employer benefit plans provided in response to state workers’ compensation laws are exempt from ERISA and Federal Court jurisdiction.  This is because they are not being voluntarily adopted; they are rather the result of complying with state workers’ compensation laws. In reality, what Mr. Minick is promoting is a Kafkaesque scheme the result of which is that wherever an employee goes to dispute what an employer has decided regarding an injury he or she will find someone alleging they are in the wrong place.  If the worker seeks assistance in the Oklahoma Supreme Court, Minick says they should be in Federal Court because ERISA pre-empts state laws.  If an employee goes to Federal Court, someone there will (reasonably) cite the ERISA exemption for workers’ compensation and send the employee to the Oklahoma Workers’ Compensation Commission.  If an employee seeks assistance at the Commission, it will be alleged they cannot because they can only file there if they are alleging the employer did not follow its own plan, not that the plan unconstitutionally denies them benefits.  If they file in Oklahoma District Court, the employer will assert exclusive remedy from tort that the Oklahoma Option provides and ask to dismiss. In essence, these hurdles that employees face is what the Supreme Court challenge is all about.

 

Michael Clingman

Oklahoma Coalition for Workers Rights

 

 

 

February 27, 2015

 

 

Attempts to Defend the “Oklahoma Option” Offer Incomparable Comic Relief

 

 

Ever since we heard the first explanation and defense of the “opt-out” workers’ compensation concept included in SB 1062 we have been very impressed with the comical attempts at explaining the idea and defending its constitutionality.  In light of the recent request that the Oklahoma Supreme Court assume original jurisdiction to review the law, it is important to revisit the arguments and, frankly, silly claims made by proponents of opt-out, (which they refer to as the Oklahoma Option).

 

The most frequent claim made is that this is similar to Texas.  Texas is the only state in the country where employers are not required by state law to cover employees for on the job injuries.  Many employers have no coverage at all.  Others purchase occupational accident and health insurance policies with varying levels of coverage for injuries.  The majority of Texas employers, even though they are not required by law to do so, purchase workers’ compensation insurance.  Why?  Many reasons, but the two most prevalent are the recognition that coverage is important for their employees and their businesses’ success and to protect their business from being sued when an employer can be alleged to have contributed to the cause of an accident.

 

As difficult as it would be for some Texans to adopt anything with the title “Oklahoma” in it, Texas would have adopted the Oklahoma Option in about five seconds (and would have done so 75 years ago as well) if it were not for one problem.  Texans know that it is not constitutional.  In fact, apparently the only Texan who believes the Oklahoma Option is constitutional is its creator, Bill Minick, a Texas insurance broker.  It does not take a lawyer to explain the problem; a good Oklahoma or Texas high school civics student could do an adequate job.

 

Oklahoma requires most employers to provide coverage for their workers.  Senate Bill 1062 made major changes in Oklahoma’s workers’ compensation laws including a drastic reduction in benefits for workers.  But it also allows employers to not purchase workers’ compensation insurance but to provide coverage in other ways, if approved by the Oklahoma Insurance Department.  Regardless of which path the employer decides to pursue, employers get protection from lawsuits by employees by being covered.  Under the new law protection from employee court actions for employers applies to both those with traditional coverage or those who are financing their liabilities another way (so called “opt out”, so called “Oklahoma Option’’).

 

An injured employee whose employer has purchased a workers’ compensation policy will discover a very large body of laws, rules, case law, and other issues that may apply to their injury.  This body of law will provide the framework to determine whether the injury is covered by the workers’ compensation system, to determine the benefits that are due if those laws apply, and to lay out the procedures to use if there are disputes regarding the claim for compensation.  There are rules of the Workers’ Compensation Commission that must be followed, counselors at the Commission to assist with understanding the law, hearings before Administrative Law Judges, appeals to the Commission as a whole, Title 85A of Oklahoma law which applies to all rights for both parties under the law, appeals and decisions of the Oklahoma Court of Appeals and of the Oklahoma Supreme Court which could affect virtually every aspect of the case.  Why go through all this expense and time and effort?  To make sure that the rights of both the employee and employer are protected.  Why is that important?  Because it is the exclusive remedy for employees and unlike those suffering other injuries, a worker cannot bring a claim against an employer in District Court, the fundamental concept all workers’ compensation systems are built upon (sometimes referred to as the grand bargain).

 

An injured employee whose employer has “opted-out” has none of the safeguards and protections governing the claims mentioned above. Whatever plan the employer concocts and files and whatever protections or rights they choose to give or withhold from workers, these decisions are totally up to the employer.  Interpreting how to apply benefits, the duration of benefits, what injuries are covered under the plan, the amount and duration of medical benefits, and many other aspects of the injury are totally under the employer’s control, as long as they follow their own adopted plan.  The employee has no access to the procedures set up in the paragraph above to protect their rights.  Well, fine, this is a little like the law in Texas. Where this becomes unconstitutional is that the opt out law also bars, unlike Texas, the right to sue an employer for benefits, a right guaranteed by Article 2, Section 6, of the Oklahoma Constitution.  One worker receives the protection that Oklahoma statutes and the Oklahoma Constitution provide, the other does not, simply because of a decision their employer makes.

 

Do proponents of opt-out seriously believe that the Oklahoma Constitution is so fundamentally flawed that it would allow this type of treatment of different citizens solely based upon choices employers make?  Apparently, either the answer to this is “yes” or they have begun to, as the saying goes, purchase lipstick by the boxcar to apply to the pig called the Oklahoma Option.  Lets look at frequent statements praising the difference for our state the Oklahoma Option is providing, according to Mr. Minick.

 

More Employee Accountability and Medical Control.  For example, faster notice of injury and direction of care to the best medical providers.”

 

Plans filed by Oklahoma opt-out employers Dillards and Swift give either 24 hours or, in the case of Dillards, until the end of a shift to report an injury(\(\(\(\(\(\(!).  That certainly qualifies as fast notice, especially if the injury happens to occur one minute before the end of a shift.  Failure to do so means those companies would not have to provide benefits.  Nothing in law or the plans guarantees “the best medical providers,” or any way to determine what that even means.  State law allows 30 days for employees not working for companies who have opted out to report a claim; after that, an employee can provide arguments regarding why they delayed reporting to address a rebuttable presumption in the law that the injury is not compensable.

 

"More Employee and Employer Engagement.  Employees and employers actively communicate on program rights and responsibilities and payments (often higher than workers’ compensation benefits) are processed on the employer’s normal payroll system."

 

The Oklahoma Option does likely require more employee/employer engagement as employers explain to their employees how state workers’ compensation laws and the Oklahoma Constitution no longer apply to them, that the laws they are governed by are 100% decided by the employer with no oversight. As to whether benefits are higher or lower than those governed by other pesky “state laws,” those decisions are 100% decided by employers.  In the case of Swift and Dillards benefits are a mixed bag, with some benefits being greater than state workers’ compensation laws dictate and some being less.  Incidentally, in reference to the statements regarding benefits processed on normal payroll systems, those two plans have no limit on the amount of temporary total disability benefits for higher paid workers.  This is much better than the disastrous 70% of the state’s average weekly wage benefit cut now burdening other workers. Oddly, though, the Dillards and Swift plans appear to give workers 85% of pre-injury wages and then go through the usual withholding for income taxes, FICA, etc…  This will result in some workers receiving much less than the state requires for those whose employers have not opted out and will create unknown tax consequences for all Swift and Dillards injured employees.

 

"Free Market Insurance Competition.  Insurance companies are allowed to compete against one another to determine who can offer the lowest price for the broadest coverage."

 

This claim may be the silliest of all, which is saying a lot.  Previously, and in all other states, workers’ compensation insurance carriers compete based upon service.  The state mandates uniform benefits that must be paid for all injuries and companies compete through innovation and by providing better service, better safety programs, better claims practices, greater financial stability, and more efficient overall operations.  Under the Oklahoma Option companies are now able to compete by providing fewer services, lower benefits,  and more restrictions on which claims to pay in a kamikaze race to the bottom, with all of the savings coming out of the pockets of injured workers.  It is the opposite of free market competition.

 

There are many other efforts made attempting to defend opt-out, with many citing federal ERISA (Employee Retirement Income and Security Act) procedures that may or may not govern aspects of opt-out plans.  These ERISA assertions are predicated on a couple of factors.  First, they know that life for most humans on earth is too short to even begin to acquire the comprehensive understanding of ERISA necessary to do the job so attempts often vaguely refer to ERISA as an answer to any question.  The most important challenge ERISA forces upon opt-out proponents though is that there is an exemption in ERISA for workers’ compensation benefits.  This is not a problem in Texas because, as was mentioned earlier, there is no state requirement that employers have to cover employees for work-related injuries.  In Oklahoma, however, most employers must provide coverage.  This creates a dilemma for opt-out proponents.  They are forced, on one hand, to argue that these are workers’ compensation benefits and therefore employers receive exclusive remedy protection from employee lawsuits.  But then they must argue, for ERISA purposes, that these are not workers’ compensation benefits and simply part of an employee benefit plan that they are voluntarily providing to employees. 

 

In summary, the Oklahoma Option begs for an honest answer to a simple question.  How can it be constitutional to ask employees to give up the right to seek a remedy under the Oklahoma Constitution in exchange for a system they have no role in constructing and no rights in other than those allowed by their employer?  The grand bargain between employee and employer, which is the fundamental concept behind all workers’ compensation systems, becomes a farce when one side is given all the rights and all the protection under the law. The lack of independent oversight guarantees that abuse of discretion will be a routine occurrence. The Oklahoma Coalition for Workers Rights is opposed to these unconstitutional restrictions on Oklahoma’s working families and supports all efforts to repeal the “Oklahoma Option”.

 

Michael Clingman