SUMMARY OF COURT CHALLENGES – Cases and Issues Resolved Part-III

19. Bober v Oklahoma State University, 2016 OK 78

The constitutionality of 85A O.S. § 2(13)(c) which denies coverage for injuries that occur in parking lots or common areas ADJACENT to the employer’s business.

Decision: In Bober, Justice Gurich, writing for a 6-3 majority, rejected the parking lot exception because 2(13)(c) exempts from coverage injuries that occur in parking lots or common areas ADJACENT to employer’s premises. After defining words used in the statute, the Court reversed the denial of the claim by the Administrative Law Judge and the Commission and strongly held that the parking lot and sidewalk are not ADJACENT TO THE PREMISES…..but are in fact THE EMPLOYER’S PREMISES.
Justices Colbert and Watt agreed with the majority decision but, in a separate, concurring opinion, mildly scolded their colleagues of finding a way to reach the correct conclusion while avoiding consideration of the constitutional challenges of due process and access to the courts. Justices Colbert and Watt wrote, “[T]he court continues to dodge the inevitable.”
The three dissenting judges seem to forewarn of an unconstitutional future for another section, 85A O.S. 5(C), which gives employers immunity from district court tort liability EVEN IF A WORKER IS INELIGIBLE FOR WORKERS’ COMP BENEFITS UNDER THE NEW LAW. The dissent can be interpreted to say that an employer cannot rely upon an exception of workers’ comp coverage and still enjoy exclusive remedy.
I believe this dissent shows that all nine members of the Supreme Court of Oklahoma believe that if the legislature chooses to eliminate an injury from compensability, exclusive remedy rides off into the sunset and an Oklahoma business can be sued in district court for negligence. THIS ULTIMATE CONCLUSION IS A SIGNIFICANT PROBLEM FOR OKLAHOMA EMPLOYERS.

20. Alcorn v. Vickers Construction, Caddo County district court, CJ-2015-70.

The unconstitutionality of the immunity statute that carves out an exception for third-party liability any company or subcontractor working on an oil or gas drilling site

A district judge in Caddo County, Oklahoma has refused to enforce a special provision added to the workers’ compensation law that applies to only contractors and subcontractors working on oil and gas drilling sites.
All other businesses in the state can be sued if they are negligent and cause an injury to the employees of other employers. However, the legislature exempts only companies that were involved in oil and gas.
In the case of Alcorn v. Vickers Construction, CJ-2015-70 in Caddo County, the firm of Stipe & Belote alleged that Reford Alcorn was injured when the employee of a separate company (third party) struck a piece of the drilling rig with his bulldozer, causing a 4,000-pound portion of the rig to fall on the plaintiff.
For most of Oklahoma’s legal history, an employee of one company can sue a negligent third party in district court under traditional tort theories. But for some reason, the 2011 legislature decided to provide extraordinary protection not available in any other state to one industry. The only industry protected in the 2011 law and the Administrative Workers’ Compensation Act passed in 2013 is the oil and gas industry and their subcontractors working on a drill site.
In this case, the owner and operator of the well site tried to dismiss the negligence action based upon the statutory exemption. Lawyers for the injured worker alleged that the special exemption from third party liability is unconstitutional because it is a special law prohibited by two sections of the Oklahoma Constitution–46 and 59.
The Plaintiff’s brief went to the heart of the issue, “Had Mr. Alcorn been working at a non-oil and gas construction site, this Motion to Dismiss would have never been brought. However, because Western Oil can be considered an oil and gas operator, Plaintiff is barred from pursuing this lawsuit.”
In a one-paragraph decision, District Judge Richard Van Dyck denied the Motion to Dismiss and the negligence action will continue.
MY COMMENT: This is another example of the legislature sticking language into a bill at the last minute to help a particular business or industry and to the detriment of an injured worker. They know such special laws are unconstitutional, but they pass them anyway.

21. Death of James O’Haver v. JRT Trucking, Oklahoma County District Court,

A common law negligence action has been filed against the Employer on the basis that title 85A effectively precludes a heart attack or stroke injury from being found compensable under workers’ compensation law. Plaintiff alleges that exclusive remedy has been lifted in such cases because the statute precludes the use of either physical or mental stress to prove an injury in comp. The workers’ comp case has been denied.

This case was settled at Mediation. The constitutionality of the issue will be left for another day.

22. Vasquez v. Dillard’s, 2016 OK 89, Oklahoma Supreme Court, September 13, 2016.

The Opt-Out Act is unconstitutional as a special law and as a denial of due process.

A 7-2 majority of the Oklahoma Supreme Court held the Oklahoma Opt-Out scheme unconstitutional as a special law that provides differing benefits for Oklahoma workers.
In a 40+-page opinion, including substantial concurring opinions, the Supreme Court tossed out Opt Out.

It was a great day for the working men and women of Oklahoma, and especially for the employees of the 65 companies that opted out.

Opt-out is the biggest attack on the American worker in my 36 years of representing injured workers. If allowed to stand, the plans of the companies such as Dillard’s, Big Lots, and ResCare, the nation’s largest home health care agency, would have deprived injured workers out of necessary surgeries and weekly benefits. Opt out also would have allowed companies to shift the cost of paying for work-related injuries to Medicare, Medicaid, and Social Security.

I hope employers who were led to believe that their workers would receive the same benefits under opt out as with regular workers’ comp insurance, will read the plans next time. I believe some well-meaning employees were hoodwinked into opting out just to save money.

 23. Pilkington v. Dillard’s Inc., U.S. District Court, Western District of OK, CIV-15-938-M.

Dillard’s denied this case under its Oklahoma Option (Opt Out) benefit plan. All administrative appeals within the plan have been exhausted and the case has been appealed to the Workers’ Compensation Commission. However, Dillard’s removed the case to federal court, claiming it is governed by ERISA, rather than state law that provides for an appeal to the Workers’ Compensation Commission and then to the Oklahoma Supreme Court. A federal judge remanded it back to the Commission.

Opt Out is unconstitutional per Vasquez v. Dillard’s. This case will now proceed before the Workers’ Compensation Commission.

24. Atwood Distributing LP vs. Camp, Supreme Court No. 114,575

Is claimant entitled to back TTD when a soft tissue case turns into a surgical case? After a claimant exhausts the TTD maximum in Section 62, there often is a “gap” in weekly compensation until surgery occurs.

This decision is now final with the Supreme Court denying certiorari on April 3, 2017. At issue is whether Section 62 or Section 45 controls TTD when the soft issue becomes a surgery case. Section 62 limits TTD in soft tissue injuries to 8 weeks, with another 8 weeks available if there is an injection, and another 16 weeks if surgery is recommended.

Section 45 is the regular TTD statute that limits TTD to 104 weeks. The problem arises if the surgery is not approved within the 32 weeks allowed by Section 62 and an injured worker is left without TTD benefits while he is waiting for surgery. We sometimes call that the “TTD gap.”

The Court of Civil Appeals issued a straightforward decision. Judge Mitchell wrote:
“Once Claimant had surgery her injury was no longer “nonsurgical” and Sec. 62 was no longer the applicable authority for TTD compensation. Accordingly, we find that a compensable “surgical” soft tissue injury entitles a claimant to TTD for any period of time which she is unable to work, subject to the general limits of Sec. 45.”

25. Earl-Le Dozer Service, LLC v. Haulcomb, Supreme Court No. 115,224

After the Commission found that Claimant, who had a positive drug test following the accident, overcame the intoxication presumption defense, the Respondent and CompSource appealed to the Supreme Court.

Division I of the Oklahoma Court of Civil Appeals unanimously affirmed the finding of compensability by both the ALJ and the Commission en banc. Presiding Judge Goree clearly laid out the standard of judicial review as the same as from final agency decisions under the Administrative Procedures Act. The Court of Civil Appeals said, “We may only disturb the decision if one of the statutory grounds [in Section 78] is shown. We are not entitled to substitute our judgment for that of the agency as to the weight of the evidence on fact questions.” Judge Goree also wrote, “We will disturb the ALJ’s finding only if it is clearly erroneous. We will canvass the record to determine if the evidence is such that a factfinder could reasonably form a firm belief that Claimant’s state of intoxication had no causal relationship to the injury.”

26. Brown v. Claims Management Resources, Inc. 2017 OK 13, case No. 113609

The appeal challenges the constitutionality of Section 2(13)(c) which excludes injuries that occur in a common area. Claimant slipped in the stairwell leaving his workstation on the second floor on his way to an employer-controlled parking lot. The issue was….is ingress and egress to a worker’s workstation, especially on Employer’s property, an integral part of the employment.
The case challenges the entire AWCA’s drastic cut in benefits, limitations of compe.

Supreme Court Decision:
On February 22, 2017, the Supreme Court, in a 7-1 decision, invalidated the legislature’s attempts to limit compensable injuries to “on the clock.” Chief Justice Combs following the teaching of Bober v. Oklahoma State University to find that the stairwell was not “adjacent” to the premises, which the statute would make not compensable, but was indeed part of the premises.
In what I think is a major statement on ingress and egress, the Court said that ingress and egress to the worker’s workstation are necessary aspects of the employment. Specifically, the Court said the definition of “employment” services encompasses more than the literal performance of specific assigned tasks and includes other necessities of employment specified by the employer.
To be able to work, an employee can’t stay in his car all day. In order to perform duties for the master, the worker must leave his car, walk or run to his workstation, and begin his assigned task.
This decision is good for both employer and employee since workers’ comp will now cover….again….most parking lot and premises accidents. Employers will be relieved of the costly burden of defending such accidents in district court.

27. CCA of Tennessee, LLC v Angellee Woolf, Supreme Court No. 114,958

The “identifiable and significant” criteria for finding that an aggravation of a preexisting injury is compensable.

It was uncontroverted that the injured worker’s MRI showed degenerative disc disease in the neck. Even though the Employer’s doctor admitted surgery was necessary, he opined that the need for surgery was due to the preexisting degenerative disc disease and not the workplace injury.
The ALJ and the Workers’ Compensation Commission ruled in favor of the injured worker and found the aggravation was “significant and identifiable.” The opinion is interesting because the treating physician never used those magic words. Instead, the treating physician said the accident aggravated claimant’s preexisting condition.

The newest Court of Civil Appeals judge, Barbara Swinton, wrote a well-reasoned opinion for a unanimous panel of Division III. Judge Swinton, in talking about the treating physician’s statement ONLY that the injury was an aggravation, wrote, “This served as substantial, competent evidence of an identifiable and significant aggravation…”

Judge Swinton’s final paragraph said, “The aggravation of a previously asymptomatic cervical degenerative disc disease is a compensable work place injury.” Once there was an injury found under the AWCA, reasonable and necessary treatment was awarded automatically.