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Appeal likely of ruling invalidating Oklahoma workers comp opt-out law

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Sources say an appeal is inevitable of the Oklahoma Workers' Compensation Commission's ruling that the state's opt-out law is unconstitutional because it denies equal protection for injured workers.

To an extent, injured workers in Oklahoma receive similar benefits under the traditional workers comp system and the Employee Injury Benefit Act that has allowed employers to opt out of the state's comp system since Feb. 1, 2014, according to the commission's ruling last week in Jonnie Yvonne Vasquez v. Dillard's Inc.

But with the opt-out law, “the employer – the very party who will have to pay the compensation – is authorized to define 'injury,'” which is unfair to workers, the commission unanimously ruled.

Ms. Vasquez, who suffered an injury in September 2014 while working at a Shawnee, Oklahoma, Dillard's store that aggravated a pre-existing spine injury, was denied benefits because the Little Rock, Arkansas-based retailer's plan does not cover pre-existing injuries, records show.

In another example, the Oklahoma commission noted that bodily harm caused by exposure to asbestos is generally covered under the state's comp law, the Administrative Workers' Compensation Act, but is not covered under Dillard's injury benefit plan.

Thus, it ruled that provisions of the Employee lnjury Benefit Act unconstitutionally deprive injured workers of equal protection and access to the courts.

However, an appeal to the Oklahoma Supreme Court “seems certain,” said Bill Minick, president of Dallas-based PartnerSource, an alternative workers comp consultant and unit of Arthur J. Gallagher Risk Management Services Inc.

Representatives of Dillard's couldn't be reached for comment, but Oklahoma Insurance Department Commissioner John Doak said in a statement that he, too, “anticipates an appeal” and looks forward to “a complete and careful review of these issues by the judicial branch.”

“My department will continue to perform its statutory responsibilities while this consideration occurs, and we will support our legislators as they continue to develop Oklahoma's workers compensation system this session,” Mr. Doak said. “Addressing these issues head-on will enable our state to provide the best care possible for Oklahomans at a price employers can afford.”

Dillard's is one of about 60 employers, including Big Lots Inc. and Swift Transportation Inc., that have opted out of Oklahoma's workers comp system to date, according to the Oklahoma Insurance Department website.