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Oklahoma comp commission rules opt-out law unconstitutional

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Oklahoma's Employee Injury Benefit Act, which allows employers to opt out of the state's workers compensation system if they provide alternative benefits for injured employees, is unconstitutional, Oklahoma Workers' Compensation Commission has unanimously ruled.

The commission on Friday ruled that provisions of the Oklahoma Employee lnjury Benefit Act are “inoperable,” unconstitutionally depriving injured workers of equal protection and access to the court.

That decision is immediately appealable to the Oklahoma Supreme Court, which is required to retain the appeal and must consider the case on an expedited basis, according to the commission's ruling.

The state's Employee Injury Benefit Act took effect on Feb. 1, 2014, and about 60 employers have opted out of Oklahoma's workers comp system to date. Little Rock, Arkansas-based Dillard's Inc. has provided an alternative benefit plan for injured workers in the state since Sept. 1, 2014.

Jonnie Yvonne Vasquez, who worked at a Shawnee, Oklahoma, Dillard's store, injured her left shoulder and upper neck while lifting shoe boxes in September 2014, court records show. She was transported by ambulance to a nearby hospital where she was diagnosed with an aggravation of a pre-existing spine injury.

Ms. Vasquez submitted two claims to Dillard's for benefits and additional medical treatment, but both claims were denied because they were for a pre-existing condition rather than an “injury” as defined by Dillard's injury benefit plan, according to records.

Under the Administrative Workers' Compensation Act, a compensable injury doesn't include “any pre-existing condition except when the treating physician clearly confirms an identifiable and significant aggravation incurred in the course and scope of employment.”

Dillard's plan makes it more difficult for injured workers with pre-existing conditions to obtain benefits, as an approved physician must confirm the pre-existing condition “has been previously repaired or rehabilitated,” among other things.

Ms. Vasquez appealed to the Oklahoma Workers' Compensation Commission, but Dillard's argued the commission shouldn't have jurisdiction since its plan is governed by the Federal Employee Retirement lncome Security Act, records show.

However, in October, the U.S. District Court in Oklahoma City ruled the commission should have jurisdiction since the Oklahoma Employee Injury Benefit Act states that injured workers of nonsubscribing employers can appeal benefit determinations to an en banc panel of the commission.

“Generally administrative agencies do not have the authority to determine constitutional questions,” court records show. “Here, however, the Oklahoma legislature has established the commission as the court of competent jurisdiction.”

Dillard's would have 90 days from any final decision to secure compliance with the Administrative Workers' Compensation Act.

Oklahoma's Employee Injury Benefit Act has produced positive results, Bill Minick, president of Dallas-based PartnerSource, an alternative workers comp consultant unit of Arthur J. Gallagher Risk Management Services Inc., said in an email.

“For example,” Mr. Minick said, “workers are receiving better benefits when they miss time from work and employers are saving money during a difficult economic time in Oklahoma.”