Last month, the workers’ comp industry in the southern region of the nation received another shock comparable to the Padgett decision in Florida, which declared that state’s system unconstitutional due to the erosion of benefits afforded to injured workers over the last decade. This time, the wave originated in Oklahoma.
In Darrell Duck v. Morgan Tire, the District Court of Pottawatomie County in Oklahoma denied the defendant’s motion to dismiss the plaintiff’s petition, on the grounds that the accident was in fact “foreseeable” and that, under the state’s new Title 85A Administrative Workers’ Compensation Act, which defines a compensable “accident” in part as “unforeseen,” the exclusive remedy does not apply. After the decision was rendered, and taking into account the gravity of the situation, both parties in the suit have requested that the Supreme Court hear the case. It is expected that the highest court will comply.
Darrell Duck’s attorney, Bob Burke, mainly cites the poor wording of the new workers’ comp act as the nail in the coffin for the case, although he says he did not originally think the decision would be a watershed moment. In fact, the challenge was just a matter of course for Burke, who has decades of experience in workers’ comp law in Oklahoma, worked as a journalist and has previously served the state government as Secretary of Commerce.
“At the request of the Governor, I rewrote the comp law in 2011, but in 2013, they decided to move to an administrative system,” Burke explained in an interview with Louisiana Comp Blog. “So in 2013, two lawyers with very little experience in workers’ comp law and a bunch of laypeople got together and rewrote the statute and cut benefits across the board in moving to the new system.”
Burke has had his qualms with the 2013 law since the beginning, which he laid out as follows in his response to the defendant’s motion to dismiss: “The Administrative Workers’ Compensation Act, (AWCA) a new statutory scheme for adjudicating work-related injuries in Oklahoma, contains unconstitutional provisions which deny an injured worker’s right to an adequate remedy. Therefore, the AWCA breaches ‘The Grand Bargain’ and abrogates the Employer/Defendant’s immunity from a negligence action in district court. Exclusive remedy is dead.”
As for what led to the judge’s ultimate reasoning, Burke identified it as a fluke. “In passing I mentioned that Duck doesn’t even fit the comp law now because his back injury, working in a dangerous situation every day in a tire shop, is foreseeable. The judge just picked up on that and latched on,” Burke said.
In fact, Burke expects more judges to “latch on” to additional elements in the re-drafted act, which clearly invalidate the exclusive remedy. “I’d say there are about fifty or sixty potential constitutional flaws in the administrative act. I’ve won the first eleven challenges,” he said.
However, Burke is careful to explain that, personally, he doesn’t want to see the exclusive remedy eliminated and a return to the tort system. Why? “It benefits society,” Burke explained. “I’ve urged lawyers not to go around filing negligence claims because I don’t want the exclusive remedy to go away. These new, absolutely Draconian cuts in the 2013 legislation though, they’ve dipped below the fairness standard.” Burke plans to continue this battle and cites another ten challenges to specific provisions that he currently has pending in the Supreme Court.
In Louisiana, all parties involved with the workers’ comp system and its flaws are looking east at Padgett and north at Duck and attempting to draw conclusions about the potential fall out. Chuck Davoli, immediate past-President of the Workers’ Injury Law and Advocacy Group (WILG) and renowned Louisiana plaintiff attorney offers a stern perspective.
“In my opinion, along with the Padgett case, the Duck case is another example of a judicial response to the erosion (or corrosion) of the state workers’ compensation systems in the United States,” Davoli explained broadly. “The employers and insurers can’t have it both ways. Specifically, in exchange for exclusivity of remedy, the injured employee is entitled to an equitable level of workers’ compensation benefits.
Davoli continued, “The employers and their insurers are deforming state workers’ compensation benefits statutes to provide only minimal or a modicum of benefits. The undercurrent of both the Padgett and Duck decisions is analogous to the Louisiana ‘no pay no play’ paradigm in the auto insurance statutes. In sum, you only receive the protections of the system if you participate in a meaningful manner.”
Editor’s Note: The regular session of the 2015 Oklahoma Legislature convened on February 2, 2015. There are several bills pertaining to workers’ comp that have been introduced addressing Title 85A. None amend the definition of “accident” to eliminate the fault-based “unforeseen” descriptor. Review the list of comp-related bills in the current Oklahoma session here.
Bob Burke is also set to file a challenge to Oklahoma’s new “opt-out” legislation this month. Check back with Comp Blog for updates. Below are Burke’s supplemental briefs pertaining to the Duck case.