Tag Archives: Group Health

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.