States that have enacted a form of opt out for workers’ compensation have been looked at very closely by the industry, and now one state’s system has been labeled unconstitutional by the Workers’ Compensation Commission. It may be appealed and get to the state’s Supreme Court for them to decide if portions of it are unconstitutional as well.

Parts of Oklahoma’s opt out program were ruled unconstitutional by the Oklahoma Workers’ Compensation Commission last Friday. The state put opt out laws into place three years ago. The commission declared that the part of the law allowing companies to opt out of workers’ compensation insurance, provided they offer their own plan, is inadequate and a “special law” that deprives workers of their equal protections and rights. They labeled it a special law because it only applies to workers whose employers chose to opt out, and it doesn’t apply to all workers. They determined that this particular special law is not permissible because it can create unequal treatment of this particular group of workers.

The case in question is between a Dillard’s employee, Jonnie Yvonne Vasquez, and her employer. She claimed she was injured lifting heavy boxes at the store in September of 2014 and she was diagnosed with aggravation of an existing injury. She received treatment but her employer denied compensation for wage loss and certain medical benefits like an MRI. Her injury was not qualified to receive those kinds of benefits under their guidelines. Dillard’s had their own alternative workers’ comp system in place; they had opted out of Oklahoma’s workers’ compensation system. They determined what was covered as an injury, which doctor or hospital the injured worker would go to, and developed other stipulations like setting time periods in which claimants were allowed to receive compensable care. By opting out of the Oklahoma system employers are still allowed the exclusive remedy provision that most workers’ compensation systems allow, so they cannot be sued for a work injury.

Vasquez said that the alternative system and the opt out statute limited her access to the courts and violated her equal protection and due process rights. The commission agreed, saying that Dillard’s plan had a narrow and restrictive definition for aggravation of a pre-existing condition, more so than what the state’s plan would allow, and it limited their employee’s right to benefits.

Bob Burke, who acted as Vasquez’s attorney, said that the employer’s plan did not cover injuries that the state’s system did, things like repetitive injuries from keyboard use or asbestos exposure. According to Burke the employer system was not equal to the state system as all the control and power in the claim was in the employer’s hands and they decided what was and what was not eligible for workers’ comp, and if an employee rejected a settlement they could terminate the employee’s benefits entirely.

“This decision assures that all Oklahoma men and woman who are injured on the job are treated equally and will be allowed to tell their story to a judge,” said Bob Burke.

Those who were involved in the enactment of the original bill are disappointed in the outcome, and it is expected the case will be appealed and heard by the Oklahoma Supreme Court.

“The workers comp reforms that I authored are saving Oklahoma businesses significant money. I am optimistic these reforms will be upheld as constitutional when they are considered by the Oklahoma Supreme Court,” said the Senate President Pro Tem Brian Bingman.