Option Update July 28, 2016

by Daryl Davis

Since my last update, not much has changed regarding the Oklahoma option. We patiently await the outcome of Dillard’s v Vasquez—the ironic touchstone case for opponents of opt-out. The Supreme Court of Oklahoma’s next step is likely to schedule oral arguments. There have been additional amici curiae filed over these past several weeks. In fact, a few days ago, Bill Minick released a concise expose of the opposition’s non-brief “friend-of-the-court” efforts (linked).*

Here is a 13-word summary of the opposition’s message: due process, special law and equal protection breaches make the Oklahoma option unconstitutional. Mixed in with that message is an unbelievable amount of moral throat clearing. In response to those concerns, I remind you of this effort from me back in May (linked). (Executive summary linked here.)

Earlier this month, Mark Adams of the Illinois Policy Institute released a research paper (linked) plugging an option to WC for the Land of Lincoln. There is no doubt that of all the states, Illinois is near the top of the list in need of help w/workers comp (WC). The surprise of this plug by Adams is how unlikely a candidate for an option Illinois is—or, at least, has been considered by me and others up to this point. Don’t judge a state by its political color.

One of my favorite passages of Adams’ piece is found on page 9:

Because the [WC] system is wasteful, the benefits to workers and employers of reform are likely much greater than the benefits to special interest groups of preserving it in its current form. While there are many more employers and workers than medical providers and lawyers, the former only infrequently interact with the details of WC, while the latter interact with the system on a far more regular basis. Consequently, special interests have better knowledge of the system. Moreover, the broader interests of employers and workers are spread across a diverse section of society, making it far more difficult to organize these diffuse groups than to organize the smaller, narrowly focused special interests. While the WC system assumes that employee and business interests are at odds, it often might be the case that workers’ interests are more closely aligned with those of their employer than with the incentives in the political system.

Of course, I add insurers to the destructive special interests that Adams targets above. As we have seen in Oklahoma, there is no other niche industry that is defended so fervently by the three most powerful lobbying groups in our country as is WC. Various reports show medical and insurance as the top two lobbying industries (linked). The legal profession is not trackable using the same dollar metrics as its tentacles reach directly and deeply into lawmaking itself—in the form of statutes by attorneys as legislators and of case law by attorneys and judges. Unquestionably, the legal profession (plaintiff, defense, judge, staff) has the most to gain in keeping the status quo in WC. Healthcare professionals and insurers profitably agree with the status quo's acceptability "because the legal people tell us its fair."

Take a moment to contemplate how far we have come in Oklahoma—all of this execution flying in the face of lawyers, judges, big pharma, doctors, hospitals and the insurance carriers and TPAs that take their cuts directly from employers who are statutorily required to fund the entire, ridiculous circus. The Sooner State is to be commended; it is clearly committed to progress and improvements.

Meanwhile, the Lone Star State continues to take advantage of the rest of the country’s inability to progress and improve.


* "Yes," against the better judgement of my editor, I just used ironic quotation marks to highlight conflicting interests of those in the legal profession.