As we reported yesterday, the Oklahoma Supreme Court declared the Opt Out system in that state unconstitutional. In the 7-2 decision the justices found that the system creates separate classes of injured worker which violated the rights of citizens in the state. The court did determine that existing claims that were being managed under opt out will now be managed under the state mandated comp system, but numerous questions remain.
Assuming claims under a self insured system is one thing, but what of employers who are not qualified as self-insurers in the state? How do you secure coverage that includes open claims? And what is the potential liability for employers who denied injured workers treatment based on the strict reporting protocol or more severe coverage limitations in effect under their alternative plans? The court decision would seem to make that a major problem. The state plan gives an employee up to 30 days to report an injury. Companies like Dillard's only gave employees until the end of their shift.
That is quite a variance, and I suspect the 60 or so employers that chose to Opt Out will be looking at unexpected liabilities from their "experiment".
Ultimately, the big question is, how exposed are these employers?
I suspect the answer is, "extremely".
I am catching a flight to San Antonio this morning, and lack the time I need to explore this further. Not to worry, the Opt Out folks are a persistent bunch, and they will likely give us ample opportunity to analyze and discuss this in coming months.
Until then, I can only assume that it will be a great time to be a Ferrari salesman in Oklahoma. Some attorneys there are probably in for a windfall.
Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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