Summary Of Court Challenges – Part III


  • Rogers v. Sims and UPS, Intervenor, Grady County District Court, CJ-2015-2


UPS was trying to recover its comp payments in a death case through Section 43 subrogation. The Plaintiff argued that subrogation in a workers’ compensation death case in Oklahoma is unconstitutional.


District Judge Richard Van Dyck ruled that Article 23, Section 7 of the Oklahoma Constitution prohibits the legislature from limiting the recovery in a wrongful death action against a negligent third party except in cases involving the state or other units of government covered by the Oklahoma Governmental Tort Claims Act.  The judge specifically ruled that any subrogation right granted employers or their insurance carriers by Section 43 of Title 85A is “in violation of Article 23, Section 7 of the state constitution.”



  • Maxwell v. Sprint PCS, 2016 OK 41, 369 P.3d 1079


The appeal challenges (1) use of the AMA Guides, Sixth Edition, to rate disability, (2) the deferment of PPD if a worker returns to work, and (3) the use of the AMA Guides to rate disability to scheduled members.


On April 12, 2016, the Supreme Court, in a 7-2 decision, opined on three major issues:

(1) PERMANENT PARTIAL DISABILITY (PPD). No edition of the AMA Guides can be used to evaluate permanent disability to scheduled members of the body. (Since the Guides cannot be used in any of the four cases consolidated for the opinion, the Supreme Court said it was not necessary to comment upon the injured workers’ allegation that exclusive use of the AMA Guides is unconstitutional.) THAT AWAITS A FUTURE DECISION OF THE COURT.

In addition, the majority opinion casts serious doubt on the Administrative Workers’ Compensation Act (AWCA)’s statutory scheme of determining PPD at all. While pointing out that the legislature apparently intended for PPD to be based solely on loss of earning capacity with “no consideration as to the physical insult to the employee’s body,” Justice Gurich writes, “loss of function in the medical sense is still relevant to a disability determination.”

At page 18 of the opinion is found a sweeping statement, “Ambiguities and inconsistencies abound in the AWCA, but regardless, as the system has been implemented by the Commission, the due process rights of injured employees have been unconstitutionally abrogated with regard to permanent partial disability determinations and compensation.”

Other noteworthy quotes on PPD:

“The Legislature cannot pre-determine that an injured worker has in fact had no loss of wage-earning capacity because he or she returned to his or her job making the same wages.”

“The Legislature is confined to mandating what facts must be adjudged. It may neither predetermine adjudicative facts nor direct that their presence or absence be found from any proof before a tribunal.”

“Since its inception, the system has been designed to restore loss of earning capacity through four categories of benefits: permanent total disability, temporary total disability, temporary partial disability, and permanent partial disability. Temporary total, temporary partial, and permanent total disability benefits have been, and continue to be, compensated based on an injured employees’ disability, meaning ‘incapacity or loss of function in the physical or medical sense’ established by medical evidence, and the injured employee’s ‘inability to earn wages’ as demonstrated by nonmedical evidence with regard to the employee’s ’employment situation.’”

“Permanent partial disability benefits, and workers’ compensation benefits generally, are not ‘rewards’ or punishment–these benefits replace something the employee lost for which the employer is liable.”

(2) LOSING PPD IF WORKER RETURNS TO WORK. Much of the opinion addresses the legislature’s attempt to take away any award of PPD for workers who return to their jobs. Justice Gurich wrote, “The deferral provision of Sec. 45(C)(5) tramples the due process rights of injured workers and is unconstitutional under Art. 2 Sect 7 of the Oklahoma Constitution.”

The opinion criticizes the deferral or back to work penalty provision because “An injured employee who returns to work receives no compensation for the physical injury sustained and no compensation for a reduction in future earning capacity, UPENDING THE ENTIRE PURPOSE OF THE WORKERS’ COMPENSATION SYSTEM, which is to compensate ‘for loss of earning power and disability to work occasioned by injuries to the body in the performance of ordinary labor.’” Further, Justice Gurich opined, “The deferral scheme…punishes all employees who suffer compensable, admitted injuries.”

In addition to finding that the deferral scheme was unconstitutional as a denial of due process of law, the Court found it also violated the Constitution as a special law, writing, “The Legislature is without power to vary the effect of a permanent partial disability award by excluding one group of claimants from benefits accorded other permanent partial disability recipients.”

(3) CONVERSION OF PPD TO A SCHEDULED MEMBER TO THE BODY AS A WHOLE IS NOT PERMITTED. The Court opined, “If the AMA Guides do not apply to scheduled members, neither do the conversion tables to the body as a whole.” That means that the percentage of PPD to a leg is based upon 100 % to the leg of 275 weeks at the applicable compensation rate, not being converted to the body as a whole and limited to 350 weeks for 100 % to the whole body. THIS PROVISION RESULTED IN A SIGNIFICANT REDUCTION IN BENEFITS FOR AN INJURY TO SCHEDULED MEMBERS.

The practice of converting PPD to a scheduled member to the body as a whole came from a April 16, 2014 Notice from a former executive director of the Workers’ Compensation Commission. The Supreme Court slammed the Notice, “The issuance of this Notice lacked any semblance of the procedural due process protections required by the…Oklahoma Constitution and such action was clearly in excess of the Commission’s jurisdiction.”

(4) THE LAST WORD. In the closing paragraph of the opinion, Justice Gurich and the Court’s majority held that:

“Any definitional provisions found in 85A O.S. Sec. 2 [the definitions section], as discussed herein, are invalid to the extent they are inconsistent with the views expressed today.”

It is my humble opinion that that any sections of the definitions that tie disability to returning to work making the same amount of wages have been declared “invalid.” As it should be, the determination of PPD shall be based upon the entire picture of an individual worker’s loss of future earnings and the loss of function in a physical or medical sense.”

  • Smith v. Baze Corp Investments, Supreme Court No. 113,811

The issues were the same as the Maxwell case above.  The Supreme consolidated the two cases for a decision.


  • Wells v. Oklahoma Roofing and Sheet Metal, Supreme Court No. 112,844

Challenge:  The lawsuit in the District Court of Oklahoma County challenged the constitutionality of the identical sections in Titles 85 and 85A that limit a direct action for intentional tort against the employer.


The Oklahoma Court of Civil Appeals, Division IV, has held the section of the Oklahoma workers’ compensation law that severely limits district court actions for intentional torts UNCONSTITUTIONAL as a special law and in violation of equal protection and due process.

In the case, Chief Judge Jerry Goodman wrote a 15-page majority opinion that perhaps brings back direct lawsuits against employers allowed by the 2005 Parret case. Since that opinion, the legislature has twice tried to close the worker’s option to file an intentional tort action in district court.

In this case, the Plaintiff’s father, Robert Young, fell to his death because, the Plaintiff argues, the Employer’s fall-protection system was not adequate. Plaintiff argues that the Employer was a repeat violator of safety rules and had been fined by OSHA. Plaintiff contends that the Employer’s actions were intentional and negated the exclusivity of the workers’ compensation law.

This case was decided on Section 12 of Title 85. However, the legislature copied the exact language in the exclusive remedy section of the new comp law, Title 85A (Section 5).

The Court of Civil Appeals based its finding of unconstitutionality on the basis that the statute is a special law because it provides for a different burden of proof for injured employees and non-employees. Art. 5 Sec. 46 of the Oklahoma Constitution provides that a law must treat everyone in a class of similarly situated persons the same. In this case, persons who suffered because of an intentional tort are lumped in a single class.

Judge Goodman wrote: If an employer’s intentional act injures two persons, one its employee and the other a non-employee, while both persons must present their claims in district court, the latter may recover damages by proving either specific intent or substantial certainty, while the injured employee may only recover if specific intent is proven…Put another way, Sec. 12 strips an intentionally-injured claimant of the rights and remedies bargained-for under the Act…yet cripples the claimant’s ability to prove the elements of his claim when compared to the burden of a similarly-situated plaintiff. The industrial bargain has been fundamentally altered. We hold this is incompatible with the concepts of equal protection and due process.

The Court of Civil Appeals cited the recent Torres v. Seaboard Foods case and its discussion of the betrayal of the fundamental principles of justice that gave rise to the Grand Bargain.

The Supreme Court accepted certiorari in this case in October, 2016.


  • Wonder Bread v. Smith, Sup. Ct. No. 113,943


The Respondent appealed from an order that authorized a total knee replacement for a compensable injury although the IME opined that 95 % of the need for the replacement was a pre-existing condition.


The trial judge found that work-related activity was the major cause of the injury and appointed an IME to determine what medical treatment was necessary. The judge then authorized the total knee replacement as reasonable and necessary medical treatment resulting from the injury. With the denial of certiorari, the Supreme Court has allowed to stand perhaps the strongest language yet that makes “major cause” irrelevant to determine what medical treatment is needed for a compensable injury.

Judge Rapp wrote for the Court:

“While a claimant is required to show that employment is a major cause of his injury, workers’ compensation law does not require medical evidence stating the employment is the major cause of the need for a certain type of medical treatment.”

“An IME may properly opine whether a claimant’s employment is the major cause of a claimant’s injury; it may not opine whether that employment is the major cause of the need for a specific course of treatment.”

  • Sequel Youth and Family Services, LLC v. Marcella Ayisi, Supreme Court No. 116109


The statutory provision that precludes all deterioration or degenerative claims.


The Oklahoma Court of Civil Appeals, Division IV, has rejected an employer’s argument that the Administrative Workers’ Compensation Act prohibits benefits for injuries in which a degenerative disease is aggravated by work activity. The published opinion also seems to reinstate the “major cause” test in cases in which an injured worker has preexisting degenerative disease such as osteoarthritis at the time of the new injury based upon aggravation.

Presiding Judge Deborah Barnes, in a comprehensive 19-page opinion (attached), has, by interpretation, invalidated AWCA sections that require that an injury is “solely” caused by work activity and that diseases that involve degenerative diseases are specifically excluded from coverage under the AWCA.

The statutes in question are found in 85A O.S. Sec. 2(9):

“Compensable injury” does not include…

(5) any strain, degeneration, damage or harm to, or disease or   condition of, the eye or musculoskeletal structure or other body part resulting from the natural results of aging, osteoarthritis, arthritis, or degenerative process including, but not limited to, degenerative joint

disease, degenerative disc disease, degenerative

spondylosis/spondylolisthesis and spinal stenosis, or…

(6) any preexisting condition except when the treating physician clearly confirms an identifiable and significant aggravation incurred in the course and scope of employment.

The COCA opinion is significant for the following reasons:

(1) The opinion rejects the employer’s contention that the Legislature intended to bar all degeneration or deterioration claims, whether new symptoms result from the aging process or from work-activity that aggravates a preexisting condition;

(2) The statutory provision regarding an injury “caused solely,” by work-activity is rejected because such a reading would be “untenable in light of the statute as a whole.”

(3) The COCA brings back the concept of “major cause” to the workers’ compensation table. The judges unanimously opined that, in the present case, the worker’s osteoarthritis is compensable if the employment is the major cause of the deterioration or degeneration and that such finding is supported by objective medical evidence.


  • Bober v Oklahoma State University, 2016 OK 78, 378 P.3d 562


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.


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 is not ADJACENT TO THE PREMISES…..but are in 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.

  • Brown v. Claims Management Resources, Inc., 2017 OK 13, 391 P.3d 111


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 work station on the second floor on his way to an employer-controlled parking lot. The issue was….is ingress and egress to a worker’s work station, especially on Employer’s property, an integral part of the employment.

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 work station 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 work station, 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.

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