Every year I attend a Larson Advisory Board luncheon scheduled during the National Workers’ Compensation and Disability Conference in Las Vegas. Advisory Board members are attorneys from various states who blog and contribute articles on workers’ compensation law to the Larson’s Series of publications. The Board members discuss trends and the hottest legal issues.
This year, the hot topic was once again the Oklahoma opt out law that was enacted in 2013. It essentially allows employers to adopt complex plans controlled solely by employers whereby benefits are denied to most injured workers, while employers remain shielded from any liability. Its purpose is to save employers money, while forcing injured workers to seek other forms of public relief, like welfare and social security benefits. The injured worker must use any insurance purchased under the Affordable Care Act (Obama Care) to pay for medical expenses, and isn’t likely to receive any wage replacement while he or she recovers from the work injury.
The Oklahoma laws are different from the Texas system which has an opt-in system and which exposes non-subscribing employers to tort liability. While much of this information is a strictly guarded secret by employers and insurers, there is no question that Texas employers have gained huge cost savings in their “reforms” to the traditional workers’ compensation laws. Oklahoma employers now enjoy even greater costs savings and control over work injures than Texas employers.
Other southern states have been looking at the cost-savings for its employers under the Oklahoma laws with increasing interest. Attorneys tracking this opt-out trend gave a dismal projection that there would be systemic hits on most states’ workers’ compensation systems in the near future. Whether or not labor unions and other advocates for injured employees can successfully mount constitutional challenges in each of the states remains to be seen.
Meanwhile, even without opt-out legislation, most attorneys in other states on the Advisory Board reported that the trend was definitely toward giving employers more control over doctor selection and saving employers and insurers more money at the expense of injured workers. Even the defense attorneys were shaking their heads and left wondering whether stacking the deck against the injured worker was going to have terrible consequences for our society as a whole.