Oklahoma’s opt-out system is getting its first major challenge.
On Friday, the Oklahoma Workers’ Compensation Commission declared the system – which allows businesses to opt out of the state workers’ comp program – unconstitutional. The order is likely to be appealed to the state Supreme Court, NewsOK noted.
The case that triggered the declaration involves a worker who says she was injured lifting boxes in the shoe department of a Dillard’s store in September 2014, just a year after the opt-out system was put in place.
Dillard’s had opted out of the workers’ comp program and established an alternate system subject to federal law. The worker, Jonnie Yvonne Vasquez, said the Dillard’s alternative denied her request for an MRI, saying her medical condition was pre-existing and not the result of a work-related injury.
Vasquez is claiming the opt-out provision endorsed by Oklahoma violates her equal protection, access to courts and due process rights. After hearing the case, the commission agreed.
“A closer look at the statutorily authorized plan requirements reveals that the benefit plans permitted to be used to opt-out establish a dual system under which injured workers are not treated equally,” the commission said in its order.
“The appearance of equal treatment under the dual system is like a water mirage on the highway that disappears upon closer inspection.”
Furthermore, the commission argued that Dillard’s opt-out plan had a narrow definition for aggravation of a pre-existing injury that denied Vasquez her right to benefits.
The three-person panel concluded that the opt-out provision was a “special law” and that I violates the Constitution.
It’s an unusual move but, according to terms of the legislative approval of the opt-out system, it’s one the commission is entitled to make as a “court of competent jurisdiction.”
Attorneys for Dillard’s said they are reviewing the decision and considering their legal and legislative options.
About 60 Oklahoma employers have chosen to opt out of the state workers’ compensation program since 2013, including Dillard’s, Swift Transportation and Big Lots.
