9 Investigates: Oklahoma Workers' Compensation Reform

<p>When state lawmakers passed legislation in 2013 that replaced the old Workers' Compensation Court with an administrative Workers' Compensation Commission, the business community thanked them for fixing what many felt was a broken system.&nbsp;</p>

Thursday, February 23rd 2017, 10:57 pm

By: News 9

When state lawmakers passed legislation in 2013 that replaced the old Workers' Compensation Court with an administrative Workers' Compensation Commission, the business community thanked them for fixing what many felt was a broken system.

But, four years later, there is evidence that the reforms are flawed, and that for many Oklahoma workers who are now hurt on the job, the new law adds insult to injury.

Some of the evidence is anecdotal, coming in the form of individual cases, like the case of Terry Jones.

"These are all surgical scars," Jones explained, pointing to both the front and back of his right hand.

Jones' hand looks relatively good, considering what it looked like three years ago, following a workplace injury. At the time, Jones worked for a utility company. He was a ground hand and was training a new worker when a hydraulic hose he was handling exploded.

"And actually put a hole straight through my finger," Jones said, "and went through two sets of gloves to do that."

Jones said, considering that hydraulic fluid got into his bloodstream, he was lucky to live. Five surgeries gave him a working hand again, but not the strength to continue doing manual labor. The injury changed his life.

"Me and my family, we had to change everything we do," Jones stated in an interview in January.

The injury occurred in July 2014, meaning his case fell under the new administrative system, which went into effect in February 2014. Jones said, as a result, he fared much worse than he would have, had the injured occurred five months earlier.

Jones' temporary total disability (TTD) was capped at $561 a week, compared to $801 a week under the old system. His permanent partial disability (PPD) was a one-time payment of $14,922. Had his case been decided in the old adversarial court system, experts say Jones would likely have received $31,592.

For Jones, married with children, the new law meant about $24,000 less in workers' compensation benefits.

Further, Jones is now a teacher at Chickasha High School, a job that pays about $20,000 less than what he was making before the injury. He said workers' compensation didn't cover any of the $11,000 it cost him to go back to school and get a degree.

"That really hurt us," Jones said, "financially, we really struggled."

Workers' compensation attorneys say Jones is absolutely not alone.

"There are thousands of Oklahomans who have been injured in the last two and a half years, whose lives have been turned upside down," said Bob Burke, one of the most active workers' compensation attorneys in the state.

Burke, who represented Jones, agrees that the system needed reform -- costs to businesses were too high, some payouts to injured workers were too high, and cases moved through the system too slowly.

But Burke said the reform measure that lawmakers approved went too far the other direction.

"It gutted benefits for injured workers in this state," exclaimed Burke in a recent interview, "and without question, gave Oklahoma workers the lowest benefits in the nation."

There is no definitive ranking of workers' compensation costs and benefits, but multiple reports point to Oklahoma's benefits, as measured in benefits paid per $100 of covered wages, as being among the fastest-declining in the country.

Burke said, perhaps the ultimate evidence of the reform measure's fallibility is how it's fared in the courts. He said he warned lawmakers back in 2013 that the bill they were voting on was not only bad for workers, but contained dozens of provisions that were unconstitutional. Burke said, to date, 38 provisions of the law have been found either unconstitutional, inoperable, or invalid.

Perhaps the most noteworthy ruling came in September 2016, when the Oklahoma Supreme Court determined that the law's so-called 'opt out' provision was unconstitutional. The provision allowed companies to opt out of traditional workers' compensation insurance, as long as they provided a separate plan with benefits.

But the court found that the provision was an unconstitutional special law.

“The Opt Out Act does not guarantee members of the subject class, all employees, the same rights when a work-related injury occurs,” the ruling stated. “Rather, it provides employers the authority to single out their injured employees for inequitable treatment.”

"No one who knew anything about workers' comp drafted that bill," Burke said.

"I just have to respectfully disagree with Mr. Burke," said Jonathan Buxton, Sr. V.P. of Governmental Affairs for the State Chamber of Oklahoma and one of the authors of the bill.

"There have been court rulings against the bill," allowed Buxton, "however, it is not as broad and sweeping as some people like to claim."

Buxton said the overall scheme of creating a more efficient and less costly administrative system remains intact and is functioning well.

"And so we're seeing it actually working," Buxton stated, "because we're seeing fewer claims, lower costs, and better outcomes for the employees."

Claims are down significantly from historic levels. But over the last two years, injury claims have begun trending up again, from 3,541 in 2014, to 6,331 in 2015, to 7,676 last year.

As for costs being lower, that is also true -- but there's a catch.

According to a report by the nonpartisan National Academy of Social Insurance, between 2010 and 2014, employer costs decreased 21 cents per $100 of covered wages in Oklahoma; but at the same time, total workers' compensation benefits paid per $100 of covered wages decreased by 52 cents.

Burke said that's his main concern.

"All the burden of cutting costs came on the backs of the injured men and women of Oklahoma," Burke said. "Lawyers didn't get cut, doctors didn't get cut, only the workers."

There are still tens of thousands of Oklahoma workers whose injury claims, filed prior to the advent of the Workers' Compensation Commission (WCC) in 2014, continue to be processed under the old system, through the Court of Existing Claims. Oklahoma is currently one of two states with existing dual systems. Tennessee is the other.

All but two states, Alabama and Nebraska, have switched to administrative systems, and Burke said that's fine with him, the WCC works well.

"I don't want to go back to the old days, I don't want to go back to where workers were getting too much," Burke acknowledged. "I just want to go to the middle of the road, where an injured worker in this state can expect to get living wages…we don't want Oklahoma to have the lowest benefits in the land -- let's be somewhere in the middle."

Terry Jones isn't a complainer. He's embraced his new teaching career, but he believes in teachable moments and he believes this is one of them. He wants lawmakers to know, under the new workers' compensation law, the outcome has not been better for him and his family.

"It's not a good situation for us," Jones lamented. "I feel like, as a state, we could definitely do better."

There are several bills that have been filed dealing with Workers' Compensation this session; officials with the WCC say some of them are intended to clean up language and help streamline the administrative processes of the Commission.

Bob Burke believes, before the session is over, we could see legislation to bring about a major cleanup of the law.


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