Leaves door open for an ‘as applied’ challenge
By Marie Price
The Daily Record Newswire
OKLAHOMA CITY — In a ruling whose separate opinions from individual justices are much longer than the six-justice majority order, the Oklahoma Supreme Court Monday held that the hefty new workers’ compensation law, which phases out the Workers’ Compensation Court in favor of an administrative system, does not violate a constitutional provision requiring all legislative measures to cover a single subject.
At the same time, the order signed by Chief Justice Tom Colbert appears to leave the courthouse door open for an “as applied” challenge, a concept that came up during the recent oral argument in the challenge filed by Sen. Harry Coates, R-Seminole, and Rep. Emily Virgin, D-Norman.
Some justices’ questions seemed to express concern that the law is not yet fully effective; therefore, the court could not rule as to whether certain provisions discriminate against certain workers or raise issues of due process or equal protection.
Monday’s order bears that out, ending with: “Until such time as a case or controversy or a justiciable issue is presented to this court, we are without jurisdiction to rule further with regard to this act.”
It was fairly clear from their questions that the justices were not persuaded that the law violates language in the Oklahoma Constitution prohibiting multiple-subject legislation.
In the brief order, the court held pointedly that the law “is not unconstitutional as a multiple-subject bill.”
The justices also held that the legislature “has exercised proper authority in a matter over which is has the power to act by adopting a code for the future execution of workers’ compensation law in Oklahoma which comports with (OK. Const. Art. 5, Section 57, the single-subject mandate).”
Two justices issued separate opinions, Justice Douglas Combs and Vice Chief Justice John Reif.
Reif concurred in part and dissented in part.
Agreeing with the majority’s conclusion that the law does not violate the single-subject rule, Reif said that most of the petitioners’ challenges should be presented to the newly created Workers’ Compensation Commission before coming to the court.
However, Reif argued that some provisions of the law are unconstitutional on their face.
One of those, he said, is the appeal process in the “opt-out” system, which allows some companies to offer an independent benefit plan that meets certain standards, not participating in the administrative system.
The first step in that process is a three-person panel selected by the employer.
Reif said he believes that process, coupled with the initial determination by the employer, work unconstitutional prejudice in administration of a statutory right and deny due process.
“Under the Opt Out System, the employer and any ‘appeals’ committee chosen by the employer cannot satisfy the impartiality requirement of due process, because the employer has a direct pecuniary interest in the decision of a claim,” Reif wrote.
The offending provisions should be severed from the measure, he said, which would require opt-out system claims to follow the same process as administrative claims.
Reif also criticized language requiring that claims for injuries occurring before Feb. 1, 2014, be decided by a new Court of Existing Claims.
These are cases at law, the vice chief justice said, not administrative proceedings. “As such, appellate review of such cases falls under the appellate jurisdiction of the Supreme Court,” he said.
Legislation giving a new executive branch entity appellate jurisdiction over cases at law violates the doctrine of separation of powers, Reif said.
Two substantive provisions of the new law are facially unconstitutional, he added: exclusion of coverage for mental injury unaccompanied by physical injury (except for victims of violent crimes) and making same-sex spouses ineligible for death benefits.
“These provisions exile workers who sustain mental injury from workplace stresses, and same-sex spouses with a valid marriage in another jurisdiction who are eligible for death benefits, to a legal no-man’s-land without remedy for the loss they have sustained,” Reif said.
That is the result, because both circumstances are subject to an exclusive-remedy provision, he said.
Reif also said language that allows an employer to subsidize reemployment by deductions from a permanent partial disability award “is a special law that does not operate uniformly on all persons who are similarly situated.” The justice said this language also violates equal protection.
Combs issued a separate opinion concurring with the majority, but expressing concern that certain provisions in the law are unconstitutional, among them the sections providing for different treatment in the opt-out appeals process.
He also pointed out that the opt-out law allows the Oklahoma Supreme Court to change or reverse an appeals decision of the Workers’ Compensation Commission only if it was contrary to law—a limitation to which appeals of claim decisions under the administrative system are not subjected.
“My concern is that in addition to being somewhat nebulous, this minimum process and standard of review differs markedly from that available to claimants who are employees of an entity who has chosen not to ‘opt out,’” Combs wrote.
Functionally, the justice said, claimants have little choice. They may choose their employer, he said, but they have no choice as to whether their claims will be subject to the administrative appeals process or the opt-out system.
“That decision is made by their employer,” Combs said.
Gov. Mary Fallin praised the court’s decision to uphold the law.
“I am excited the state can move forward with improvements that will help to encourage job growth and investment in Oklahoma while delivering on a more efficient, effective and fairer workers’ compensation process,” the governor said.
Senate President Pro Tempore Brian Bingman, R-Sapulpa, is principal author of the new law.
“From the beginning we have remained confident this law is constitutional and this ruling verifies the court agrees,” Bingman said. “With this ruling, the creation of the new state Workers’ Compensation Commission can continue without delay to ensure a seamless transition for businesses and employees alike.”
Sen. Anthony Sykes, R-Moore, who handled the bill on the Senate floor, said the law is needed to drive down costs and make the state more competitive with others, while protecting workers on the job.
“This law has already shown a significant decrease to rates in Oklahoma, and we anticipate more to come,” he said. “We are encouraged by this ruling and look forward to moving ahead as soon as possible.”
Speaker T.W. Shannon, R-Lawton, who authored the law in the House, praised the justices’ ruling.
“The archaic and confrontational system this state has relied on in the past did little for workers, hurt business and only benefited the handful that profited from such a dysfunctional system,” Shannon said. “This ruling ensures Oklahoma is moving in the right direction.”
State Chamber CEO Fred Morgan also lauded the court’s decision.
“Even in this time of uncertainty, Oklahoma employers can now move forward knowing the reforms of SB 1062 and the new administrative workers’ compensation system will be implemented quickly and that relief is on the way,” he said.
