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Workers comp opt-out law under fire in Dillard's case

Workers comp opt-out law under fire in Dillard's case

Despite Dillard's Inc.'s objection, amicus curiae briefs are starting to roll in on behalf of an injured worker who was denied benefits under Oklahoma's opt-out law.

The Oklahoma Workers' Compensation Commission in February ruled in Jonnie Yvonne Vasquez v. Dillard's Inc. that provisions of the state's Employee Injury Benefit Act deprive injured workers of equal protection and access to the courts, and unfairly allow employers to define “injury.”

Dillard's appealed to the Oklahoma Supreme Court in March and, earlier this month, filed an objection to applications by industry groups looking to submit amicus curiae briefs, also called friend of the court briefs, on behalf of Ms. Vasquez, who aggravated an existing spine injury in September 2014 while working at a Shawnee, Oklahoma, Dillard's store.

Court records show that Ms. Vasquez was denied benefits because the Little Rock, Arkansas-based retailer's alternative plan does not cover pre-existing injuries.

In its objection, Dillard's argued that industry groups were filing separate applications by the same lawyer, Brandon Burton of Burton Law Group P.C. in Oklahoma City, “in an improper attempt to add weight to one side of the argument.”

However, on Friday, Oklahoma Supreme Court Chief Justice John F. Reif ruled that the court will accept amicus curiae briefs through June 27.

Two briefs were filed Monday — one by three professors from the Massachusetts Institute of Technology, Northeastern University and Rutgers University, and another by the Grove City, Ohio-based Workers' Injury Law & Advocacy Group.

Both briefs request that the state Supreme Court affirm the Workers' Compensation Commission's decision that Oklahoma's opt-out law is unconstitutional.

Similar briefs will be filed by groups like the Washington-based American Insurance Association and the Chicago-based Property Casualty Insurers Association of America, according to officials with those groups.

“We are reviewing a draft brief now and will be filing our finalized brief on or before June 27,” Trey Gillespie, Austin, Texas-based senior workers compensation director at PCI, said in an email.

“Accountability by employers, employees and medical providers, and market competition will always be met with criticism and roadblocks,” Bill Minick, president of Dallas-based PartnerSource, an alternative workers comp consultant and unit of Arthur J. Gallagher Risk Management Services Inc., said in a statement. “Nevertheless, supporters of innovation and personal responsibility will continue to work with all private and public sector leaders to develop more effective workers' compensation systems, to improve the lives of injured workers and to support economic development.”

According to the Oklahoma Insurance Department's website, Dillard's is one of about 60 Oklahoma employers that have opted out of the state's workers comp system since February 2014, when the opt-out law took effect.

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