September 14, 2016
The majority’s opinions were predictable in light of a number of cases on which the justices have opined over the past several months. For the fully developed rationale behind my own rejection of their poor decisions—including yesterday’s—I refer you to an essay I wrote four months ago: “Why Oklahoma’s Title 85A Has Been Right for the Sooner State Since 1917.” Leaning heavily on that essay and the aforementioned dissenting opinion from Justice Winchester, I offer a few thoughts below.
Grand v. Petit Bargain
In my aforementioned essay, I introduce the concept of the petit bargain having replaced the Grand Bargain over the past half century. This evolution can be summarized as follows:
Genesis of the Grand Bargain circa 1910
- Before the Grand Bargain, employers could use extremely powerful (and unfair) common law defenses when sued by employees who were injured on the job.
- Importantly, the only legal exposures by employers prior to the Grand Bargain were limited to a) defense costs and b) damages when found negligent.
- The Grand Bargain was meant to adjust this arrangement by a) minimizing legal costs while b) dumping the medical and lost wage expense of workplace injuries on the employer.
- The employee, therefore, would have a mitigated but universal solution via a no-fault system.
Incremental Incorporation of the Petit Bargain circa 1960
- The legal community was excluded from the Grand Bargain except in rare cases of dispute.
- Since disputes led to involvement, attorneys found ways to expand the grounds for disputes.
- Attorneys (both plaintiff and defense) have steadily increased their standing, sophistication of arguments and expenses in workers’ compensation (WC).
- For all WC cases (win or lose, plaintiff and defense) medical AND legal expenses are billed to employers.
- Dispute resolution became the norm in many states’ WC systems—with Oklahoma being near the top of that unfortunate list prior to the overhaul of 2013.
The above summary demonstrates deft, self-serving maneuvers by the legal community until 2013. Recent court decisions—including yesterday’s—are less deft and more blatant in their promotion of antagonism between employers and employees. The above summary should also help explain statements such as the one below from Mark Schell, co-chair of the Oklahoma Injury Benefit Coalition (the lobbying force behind the statutory overhaul):
The OIBC will continue to work with the [l]egislature to preserve and improve the progress that this historic legislation has provided Oklahoma despite the opposition of those who cling to the old, more litigious system from which they benefited.
What concerned parties need to understand about Oklahoma politics is that the state bar association has a lot of control over who sits on the state’s Supreme Court. Justices are therefore subservient to the collective agenda of attorneys throughout the state. This petit bargain is a financial windfall for attorneys and judges. Eliminating the costs of these disputes is not a prospect they want to consider, since very few attorneys fare well when everyone is happy. To avoid that conversation, lawyers and judges pretend to be united in their commitment to traditional and patriotic notions of due process—notions that are misplaced in the world of Grand Bargain legislation, which is all about special adjudication (a distinction explained in more detail in my above-linked essay).
The Gurich opinion bears some clarification, as her argument included multiple logical flaws that inattentive readers may have missed.
After offering a false dichotomy in her first sentence, Gurich spends several pages discussing the red herring of Texas nonsubscription. She follows that up with a straw man argument against the false narrative of ERISA[i] before concluding with a classic equivocation in her misuse of “exclusive.” Logicians and rhetoricians throughout the nation should be impressed with her argument’s brazenness (if not its efficacy).
More important than detailing Gurich’s sophistries are Winchester’s comments in his concise dissent.
Several months ago, we at WorkersCompensationOptions.com could see the writing of this decision on the wall, so we helped draft House Bill 2205, which addresses virtually all the concerns put forth by the Supremes yesterday. That bill had more than enough support last session to pass. We suspect the same will hold true this next session. It is now up to the legislature—as spokespeople of the citizens of Oklahoma—to determine what the next step is.
[i] The false ERISA narrative promulgated by the Dillard's legal team has been dead within legislative circles for some time now. See “The Oklahoma Workers’ Compensation Commission: Push Them on ERISA and They’ll Push Back” for more.