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No exclusive remedy for 'foreseeable' injures in Oklahoma: Court


Less than six months after a Florida circuit court judge challenged the constitutionality of the state's exclusive remedy provision, a Pottawatomie County, Oklahoma, district judge has ruled that the state's workers compensation law doesn't provide exclusive remedy for “foreseeable” injures.

Exclusive remedy in most states means workers comp is the only way to recover money for injuries that happen on the job, though a liability lawsuit might be allowed in the case of gross negligence by an employer.

However, a Pottawatomie County district judge ruled last week that Darrell Duck can sue his employer, Hibdon Tire Plus, a division of Bridgestone/Firestone Retail Operations L.L.C., for injuring his neck and back while using equipment to loosen a bolt on a wheel on Feb. 19, 2014, according to reports.

According to the judge's Jan. 9 order, Mr. Duck's injury was “foreseeable” and, therefore, he didn't suffer a compensable injury under Oklahoma's Administrative Workers' Compensation Act.

The Act states an accident is an event that “was unintended, unanticipated, unforeseen, unplanned and unexpected.”

Oklahoma's exclusive remedy provision “contains unconstitutional provisions which deny an injured worker's right to an adequate remedy,” Bob Burke, the attorney representing Mr. Duck wrote in his response to the employer's motion to dismiss or motion for summary judgment. The Administrative Workers' Compensation Act “abrogates the employer/defendant's immunity from a negligence action in district court. Exclusive remedy is dead.”

Mr. Burke told The Oklahoman that if a “foreseeable” accident is one that's “reasonably predictable,” the majority of accidents would fall in that category. His examples of “foreseeable” accidents include “an oil-field worker who slips on a slick drilling platform” and “a firefighter who suffers smoke inhalation.”

Mr. Duck's injury occurred nearly three weeks after Oklahoma's workers compensation reforms took effect, shifting the state from a court-based adjudication system to an administrative process, and permitting “qualified employers” to either self-insure or buy private workers comp insurance.

We wrote in August that, “despite comparisons with the Texas nonsubscription system, Oklahoma's new system more closely resembles traditional workers comp, as employers retain their exclusive remedy legal protections.”

The Oklahoma Supreme Court upheld the constitutionality of the opt-out workers comp law in December 2013. But sources warned that more litigation was inevitable.

Meanwhile, in August, 11th Circuit Court Judge Jorge E. Cueto ruled that the state's workers comp exclusive remedy is unconstitutional. According to the ruling, the exclusive remedy provision “is no longer an adequate exclusive replacement remedy in place of common law tort.