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Oklahoma work comp law unconstitutional?

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A group of workers compensation attorneys representing two injured workers has asked the Oklahoma Supreme Court to declare the Oklahoma Employee Injury Benefit Act unconstitutional.

The law, which took effect Feb. 1, 2014, permits employers with at least 100 workers and $1 million in net assets, among other conditions, to opt out of the state's workers comp system by providing an alternative benefit plan for injured workers .

To date, the Oklahoma Department of Insurance has approved 33 employers to provide alternative comp coverage under the Employee Injury Benefit Act, also called the “Oklahoma Option.”

“There is no due process protection in allowing an Oklahoma employer to opt out of the statutory workers compensation system, set up its own benefit plan, make all the decisions regarding benefits, determine who and how a plan can be reviewed, and have total control of the development of the record for appeal,” according to the petition filed Friday by workers comp attorneys.

The petition was filed on behalf of two injured Oklahoma workers, Judy Pilkington and Kim Lee.

Ms. Pilkington was injured on Sept. 6, 2014 while working at a Dillard's Inc. retail store, and Kim Lee was injured on Sept. 7, 2014 while working for Swift Transportation Co., according to the lawsuit. Both workers' claims for benefits were denied by their employers, which have their own injury benefit plans, the lawsuit states.

Bob Burke, one of the attorneys behind the petition, said in a statement that Oklahoma Insurance Commissioner John Doak's office is “the target of the Supreme Court action because his office is charged with making certain any opt-out plan provides the same benefits as the regular workers compensation system.”

Oklahoma is the second state after Texas to allow employers to leave the traditional state workers comp insurance system. However, the system more closely resembles traditional workers comp, as employers with alternative benefit plans retain their exclusive remedy legal protections.

Tennessee legislators on Thursday introduced a bill that would also allow private employers in the state to set up their own injury benefit plans.