Exclusive Remedy in Workers’ Comp under Assault

Exclusive-Remedy-Rule

As I reported last July in my article, Constitutionality of Workers’ Comp Challenged: What that could mean for Medical Travel, and three weeks later in my article, Update on Constitutionality of Work Comp in Florida, the concept of workers’ comp being the “exclusive remedy” for injured workers in Florida was ruled unconstitutional by a Miami-Dade county circuit judge.

Last week, Business Insurance’s Stephanie Goldberg and others, reported that a district court judge in Pottawatomie County, Oklahoma ruled that its state’s workers’ comp law does not provide exclusive remedy for “foreseeable” injuries. The article, No exclusive remedy for ‘foreseeable’ injures in Oklahoma: Court, discusses a case involving an employee of a tire company who was injured while loosening a bolt on a wheel in February 2014.

The judge ruled that the employee could sue his employer, because his injury was “foreseeable” and therefore, he did not suffer a compensable injury under Oklahoma’s Administrative Workers’ Compensation Act.

The Act states, according to Goldberg, that an accident is an event that “was unintended, unanticipated, unforeseen, unplanned and unexpected.” His attorney is quoted as saying that Oklahoma’s exclusive remedy provision “contains unconstitutional provisions which deny an injured worker’s right to an adequate remedy.”

In an interview with a local newspaper in Oklahoma, the attorney said that the Administrative Workers’ Compensation Act “abrogates the employer/defendant’s immunity from a negligence action in district court. Exclusive remedy is dead.”

It occurred to me that there was a pattern here with the cases in Florida and in Oklahoma, and that an organization called “ALEC”, the American Legislative Exchange Council, might behind these moves, but I did not find any connection to them.

What it does signify is a return to the kind of world that existed in the years before workers’ compensation was enacted in all fifty states. Workers who were injured on the job would sue their employers, if they were able to go to court, and try to get their injuries paid for. What the exclusive remedy did was to create a “grand bargain” whereby the employee gives up the right to sue, and the employer, or his insurance carrier, pays for his lost wages and medical care.

In Oklahoma, this comes after the state authorized some employers to opt-out of the state’s statutory system, as I mentioned in my article, Opt-out as a way in: Implementing Medical Tourism into Workers’ Compensation. I am all in favor of giving employers some flexibility in their workers’ comp program, and unlike what is done in Texas, where some employers simply go without, while others opt-out or are a part of the system, Oklahoma requires employers to follow certain guidelines.

Yet, this ruling, and the one in Florida, do not bode well for the survival of workers’ comp as a whole, and that would be a sad day indeed.

What does this mean for medical tourism and workers’ comp?

Well, if these rulings hold, and workers’ comp is ruled unconstitutional, one of two things would happen. Either, state legislatures would have to rewrite their laws, or we would go back to the bad old days before workers’ comp enactment. Then you would have a “wild, wild, west” of lawsuits and injured workers losing their cases. If there is a workers’ comp version of the NRA, they would be very happy indeed with that outcome.

What it would mean for medical tourism? It would probably be a boon, because then more injured workers would be able to go out of the country for needed surgery, but the question as to who would pay for it would need to be determined. It could be paid for under group health, but that would cost-shift a workers’ comp claim to health care, or it could be paid for out of the settlement.

Let’s hope that there are wiser heads around to prevent what would be a mass catastrophe, as far as injured workers and their families are concerned.

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This entry was posted in Constitutionality, Exclusive Remedy, Medical Tourism, Medical Travel, Workers' Comp, Workers' Compensation and tagged , , , , , , , , , , on by .

About Transforming Workers' Comp

Have worked in the Insurance and Risk Management industry for more than thirty years in New York, Florida and Texas in the Claims and Risk Management spheres, primarily in Workers’ Compensation Claims, Auto No-Fault and Property & Casualty Claims Administration and Claims Management. Have experience in Risk and Insurance Business Analysis, Risk Management Information Systems, and Insurance Data Processing and Data Management. Received my Master’s in Health Administration (MHA) degree from Florida Atlantic University in Boca Raton, Florida in December 2011. Received my Master of Arts (MA) degree in American History from New York University, and received my Bachelor of Arts (BA) degree in Liberal Arts (Political Science/History/Social Sciences) from SUNY Brockport. I have studied World History, Global Politics, and have a strong interest in the future of human civilization in all aspects; economic, political and social. I am looking for new opportunities that will utilize my previous experience and MHA degree. I am available for speaking engagements and am willing to travel. LinkedIn Profile: http://www.linkedin.com/in/richardkrasner Resume: https://www.box.com/s/z8rxcks6ix41m3ocvvep

One thought on “Exclusive Remedy in Workers’ Comp under Assault

  1. Transforming Workers' Comp Post author

    Darren and Irene,

    I sympathize with you both, and with others who have suffered at the hands of bad actors in the workers’ comp world. That is why I am trying to my part to change things for the better, but I am only one person, and I don’t have all the answers. The answers I do have are what I have been writing about for more than two years now.

    I know that does not help you, nor does it help others, but what you must do is help yourselves. Write state and local representatives, write your congressperson, even if they are of a different party. Write your US senators, as well. Get the local attorneys who work with injured workers to assist you in getting what you deserve, which is fairness. Justice is what is meted out to those who commit a crime. And before you answer, that what you have experience is a crime, or should be, it isn’t. But that still does not mean that what has happened to you and others is okay.

    Irene, your organization should have teams of lawyers, or at least can refer people to them who can help get the benefits they deserve. And your organization should lobby state and local officials to hear the plight of those who have been harmed, maimed, and damaged by bad actors. But don’t say that just because you are suffering that others should too.

    I have worked in and around the insurance and risk management industries for more than thirty years. I have worked for carriers, brokers, software companies working in the insurance industry, and a service bureau that collects and processes workers’ comp data, some of which is used to calculate premiums, experience modification factors, the cost drivers of workers’ comp insurance, etc. And what I learned was this: workers’ comp is a wholly different kind of insurance than general health insurance, which is why it has not, will not and cannot be nationalized.

    There are too many insurance companies, large and small, insurance brokers and agents, large and small, and too many risk management firms, and workers’ comp service providers to allow that to happen. That is not true in health care.

    I hope you understand that I do support you, but to believe that exclusive remedy is the problem is not where I am coming from. It needs to be strengthened, not weakened.

    Richard’s Note:

    I welcome comments to my blog when and where they are appropriate to the topic, and where they do not incite, inflame, flame, or harass anyone, including the author. Commenting on my blog is a privilege not to be abused. Anyone who hijacks this blog, or the topics written here, for their own personal or political agenda, will not be tolerated. I will not tolerate screaming at anyone with capital letters, or with threats through social media. That is a sign of a sick and deranged mind. You do not have to agree with me, or with anyone else who comments, but you must treat them with respect. My views on many of the topics here are either stated or unstated, but do not assume that I am against anyone who feels they have been mistreated by society. And those who have no idea of who I am as a person, or who do not know what I know about the industry I am trying to change, must not accuse me of being hostile to their point of view. Lastly, this blog is about changing the way in which injured workers receive surgical care for serious on-the-job injuries. It is not a soapbox or forum for legislative and regulatory changes, other than what the author has written about and what this blog’s purpose is for. That must come from political, legal and social action that I heartily endorse, but this is not the place for that. That belongs where the abuse is occurring, not here.

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