Feature Story - Do Facts Matter? Oklahoma Constitutionality Case

Following a ruling by the Oklahoma Workers' Compensation Commission, in the case of Vasquez v. Dillard's, the Oklahoma Supreme Court will now decide whether the "Oklahoma Option" violates the state's unique constitution.

Two Key Public Questions that Many are Overlooking:

• Should Oklahoma employers have to pay for Off-the-Job Claims?
• Why are the Big Guns from the East Coast trying to kill the Option in Oklahoma?

Off-the-Job Claims:  As group health plan deductibles have risen, there has been an increase in attempts to get workers' compensation to pay medical expenses for illness and injuries that happen away from work.  Of course, the big advantage for the employee is the elimination of copays, deductibles and coinsurance.  The employee may also receive wage replacement benefits for a medical condition that arose off-the-job.  In this case, no one is claiming that Ms. Vasquez was attempting to cheat the system by pursuing this maneuver.  However, the facts are that she was covered under her employer's health plan and was already receiving care for this non-occupational condition.

Public court documents¹ show that Ms. Vasquez:

• had been previously diagnosed with a degenerative neck condition,
• was receiving ongoing treatment under her group health plan for the exact same symptoms, and
• had scheduled a follow up appointment with her physician before the work-related event.

It appears the Dillard's Oklahoma Option plan paid substantial benefits while Ms. Vasquez's claim was being reviewed.  As part of a full and fair review of her claim (as required by law), highly credentialed physicians determined there was no on-the-job injury.  The Oklahoma Workers' Compensation Commission also did not find any harm whatsoever or any wrongful denial of benefits to Ms. Vasquez.

Why the Facts Matter:  The facts of this case highlight a fundamental difference between Option proponents and those advocating for less accountability and less personal responsibility.  Some traditional workers' compensation systems have morphed into more of an entitlement program, where medical conditions revealed at work, whether they first occurred at work or not, get covered as occupational injuries at no cost to the employee.  Option programs require more accountability from employers, employees and medical providers, and attempt to perform reasonable scrutiny of a reported injury to confirm work-relatedness.  Personal medical conditions, like Ms. Vasquez's condition, are appropriately covered under a non-occupational program, like a group health plan or an individual plan from an exchange.

Big Guns Brought in to Shut Down the Option:  Dillard's and the Oklahoma Attorney General are defending the law.  But why would the following groups file amicus briefs to get a group of health plan claim covered as workers' comp claim?

Washington, DC - National Employment Law Project (trial lawyers)

Washington, DC - "Academic Experts"

Greensboro, NC - Workers' Injury Law & Advocacy Group (more trial lawyers)

Chicago, IL - Property Casualty Insurance Associate of america (workers' comp insurance companies)

Washington, DC - American Insurance Association (more workers' comp insurance companies)

Washington, DC - National Association of Mutual Insurance Companies (more workers' comp insurance companies)

Oklahoma Supreme Court records reflect that these academics and trade groups for insurance companies and trial lawyers are all closely coordinating their efforts with Ms. Vasquez' trial lawyers.  And these groups are not really spending money so Ms. Vasquez will receive on-the-job injury benefits coverage.  She apparently is already covered for this condition under  Dillard's group health plan.  Instead, as plainly seen in the facts of this case, these groups are in Oklahoma to support their own self-interests by reducing competition, creating more disputes between employers and workers, and raising insurance premiums.

What They Fear Most:  The Texas Option to workers' comp has been highly successful for injured workers and employers for more than a quarter century.  The Oklahoma Option has been a successful introduction of a positive alternative to workers' compensation in the second state.  Option opponents see this as a leak in their profit-making dike that could blow open in a few years and has led to formation of this odd alliance of workers' compensation insurance company trade groups and trial lawyers.  The Oklahoma Option is similar to an "Uber-versus-Taxi-Cab" global axis shift.  Although many industry professionals participate in both Option and traditional workers' comp programs, those who don't have Option experience will need to retool, retrain, and compete harder.

"Innovation and competition create much needed improvement in the system," says Bill Minick, President of PartnerSource.  "Surely, we can all do better by embracing more accountability and competition to improve the lives of injured workers and create new jobs."

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Endnote

¹ PacerMonitor is a free-per-use site offering the link to the Administrative Record for this case.  This site offers a 14-day free trial.  You may access the Administrative Record using the above link and going to Exhibity 3 at the bottom of the court docket in this related litigation.