The 13-year-old girl was wearing cowboy boots when she kicked Morie Moria Buford in the right knee over and over.
Under a flurry of attacks by the teenager, a ward of the state, Buford screamed out to other staff members at the group home where she works. When they pulled the girl off of Buford though, the damage to her knee had been done.
Buford, an athletic 52-year-old woman who says she’s never had a serious illness or injury, hasn’t been able to walk without a brace or sleep without pain. She can’t do the job she loved, taking care of troubled girls, and her company reassigned her to a desk job.
Her employer, Sequoyah Enterprises Inc., based in Tennessee, sent her to a doctor and paid for some physical therapy — but nothing seemed to help. The pain kept her awake at night and her knee wouldn’t stay in place without a brace.
Did she need surgery? It would take a specialist to find out but her employer denied additional treatment for the injury. Sequoyah Enterprises is among 58 Oklahoma companies that chose to opt out of the state’s workers comp system and come up with their own plans instead.
So Buford appealed the denial to the state Workers Compensation Commission. That’s when she and her attorneys learned she couldn’t appeal her denial — despite state law saying she could — because of a technicality potentially impacting all employees of the “opt out” companies.
In February, the three-member commission ruled the opt-out part of the state’s new workers comp law unconstitutional, the latest in a string of defeats for the 2013 law. The employer in that case, Dillard’s, appealed to the state Supreme Court.
On May 27, the state Legislature adjourned without fixing the problem so the commission stayed its own order until the Supreme Court rules on the opt-out provision.
The stay means Buford can’t proceed with her case and get the medical care she needs until the Supreme Court weighs in on the opt-out provision. Attorneys say that could take months or even a year, judging from past cases.
Buford is far from alone. Because of the stay, more than 20,000 employees of Oklahoma companies that opted out of the state’s workers comp system are in similar jeopardy if they are injured and want to appeal a denial of benefits, The Frontier has learned.
Those companies include large retailers such as Dillard’s and Macy’s, as well as service companies such as Mullin Plumbing, owned by U.S. Rep. Markwayne Mullin. Many of the companies that opted out of the system to set up their own plans operate nursing homes and home health companies, where workers have a higher rate of injury.
In one week since the stay was issued, the commission’s action has stalled 52 claims of injured workers. Additional claims could be added each week as workers try to appeal employers’ denials of benefits.
Valerie Sparks, a Tulsa attorney, represents two clients with pending claims from companies that have opted out of the workers comp system.
Sparks represents a man who injured his back on the job and waited months for care. His company required authorization before he could see a doctor but failed to respond to multiple requests for approval. Until the employee receives treatment, he can’t work and uses a walker, Sparks said.
Proponents of the law argued the workers comp overhaul was needed to prevent workers from slow playing the system, collecting benefits while they cancelled doctors’ appointments.
Another injured employee whose claim has been put on hold was told by her doctor she couldn’t work due to carpal tunnel syndrome and needed surgery on both arms. Her claim was denied because her employer said she had been employed less than 180 days.
However that provision of the law had already been struck down by the state Supreme Court a month before the company denied the woman’s claim, Sparks said.
Unable to work and without income or medical care, the woman set up an online funding page to raise money for her surgery, Sparks said.
“You have people here who are hurting and having to wait a very long time. Now they don’t have an end in sight,” she said.
Buford said the situation “isn’t fair to the workers, the loyal workers” who were promised help if they are injured on the job.
“This is not what I signed on for. … Now suddenly we are throw aways. I have pain that wakes me up. I have never had any physical problems like this ever.”
Chamber: law a ‘breath of fresh air’
Approved by lawmakers in 2013, the Oklahoma Employee Injury Benefit Act, also known as the Oklahoma option, allows employers to set up their own workers comp plans as long as they provided equal benefits to injured workers when compared to the state’s requirements.
It was part of an overhaul of the state’s workers comp system promoted by Gov. Mary Fallin and GOP lawmakers, as well as the state Chamber of Commerce and companies including Hobby Lobby.
Fallin’s husband, Wade Christensen, is a workers compensation attorney whose clients have included CompSource — which previously provided the state’s workers comp coverage — and the University of Oklahoma. Critics have questioned whether Christensen’s role was a conflict of interest, though he said he wouldn’t bring cases before the new Workers Compensation Commission.
Supporters pointed to studies they said showed Oklahoma’s workers comp costs were spiraling out of control. Workers comp insurance rates, they said, ranked No. 6 in the country.
In court filings that are part of a challenge by a Hobby Lobby employee, the state Chamber calls the new workers comp laws “a breath of fresh air.” Attorneys for the Chamber, including former Secretary of State Glenn Coffee, said the reforms help prevent fraudulent claims, such as employees “trying to prolong their medical treatment schedules and the … payments by skipping appointments.”
Fallin said the “reforms ensure injured workers are treated fairly and given the medical care needed to return to work.”
In reality, changes to the state’s workers comp laws appear to have benefited mainly employers, who have saved millions on workers compensation insurance, at the expense of employees.
An investigation by ProPublica and NPR found that a Texas law firm writes nearly all of Oklahoma’s opt-out plans and was the driving force behind Oklahoma’s law. The firm and a coalition of large companies including Walmart were also behind a nationwide effort to get opt-out plans approved by states.
Oklahoma was the first state to pass an opt-out provision so players on all sides of the issue are watching closely to see what happens in the state. (Texas also has an opt-out plan but the state doesn’t require companies to buy workers comp anyway.)
Key portions of Oklahoma’s law limiting workers’ benefits have been ruled invalid by the courts in opinions criticizing the law as unfair to workers.
In March, the Supreme Court overturned a provision barring workers from seeking claims for repetitive motion injuries if they had been on the job less than 180 days.
In an opinion in the Seaboard case, an exasperated Supreme Court Justice Tom Colbert wrote: “I must again emphasize that the foundation of the Oklahoma workers’ compensation scheme is the ‘Industrial Bargain’ also known as the ‘Grand Bargain.’ Yet, I am constrained to repeat ad nauseam the underlying policies and purposes behind it.”
Colbert wrote that employees give up some legal rights while employers agree to pay claims quickly for on the job injuries.
“In essence, the system strikes a balance between the rights and duties of Oklahoma employers and employees. But with the enactment of the Administrative Workers’ Compensation Act (AWCA), the balance is now off kilter and has become one-sided to the benefit of the employer.”
That case was brought by a worker at the Seaboard pork processing plant in Guymon. Records show federal regulators cited Seabord’s plant with eight serious workplace safety violations in 2015, proposing fines of more than $50,000.
In April, the Supreme Court overturned a provision that deprived employees of compensation for permanent injuries if they returned to work.
“An injured employee who returns to work receives no compensation for the physical injury sustained and no compensation for a reducing in future earning capacity, upending the entire purpose of the workers’ compensation system,” Justice Noma Gurich wrote for the majority.
Oklahoma City attorney Bob Burke said he has filed 33 legal cases challenging various portions of the law and won them all. Burke filed the claim challenging the opt-out system on behalf of an injured Dillard’s shoe department employee, Jonnie Yvonne Vasquez.
“Opt out is a scourge on the American worker,” Burke said. “It’s returning 100 years to where the employer controls every aspect of a claim. The most onerous part is where at the end of a case, they (employers) can just decide here’s how much the case is worth.”
Burke said he believes the ultimate goal of opt-out laws is to shift costs to taxpayers through programs such as Social Security, Medicaid and Medicare.
Vasquez has waited for two years for treatment for her injury and continues to wait during the stay.
The opt-out provision did allow employees who are unsatisfied with the outcome of their claims to appeal to the Workers Compensation Commission, which functions as an administrative court.
Vasquez injured her neck and shoulder while lifting boxes at Dillard’s and the company refused her request for an MRI. Dillard’s found Vasquez did not have an “injury” as defined by the plan since she had a history of back problems.
Attorneys representing Dillard’s in the case did not provide comment for this story. In court filings, the company’s attorneys claim that the opt-out system does not violate workers’ rights and that Vasquez had a pre-existing injury.
The Frontier also sought comment from Attorney General Scott Pruitt’s office, which requested a stay in the Vasquez case in April. His request noted that the Legislature was “considering amendments that may address the alleged Constitutional infirmity of the Act.” The Supreme Court denied Pruitt’s stay request, though the Legislature failed to fix the law anyway.
Pruitt’s office did not respond to The Frontier’s request for comment for this story.
The House Bill Pruitt said would remedy alleged problems with the law also would have made it less transparent. The law sought to have records submitted to the Oklahoma Insurance Department by employers opting out of the state plan exempted from the Open Records Act.
A recent study criticized Doak’s oversight of the opt-out plans as “not transparent.”
Only the names of the opt-out companies are available on the OID website and even that information is hidden within several layers of the site.
(Want to know if your company is on the list? We’ve compiled it for you here in a more user-friendly format.)
Burke said by law, Doak’s office is supposed to regulate opt-out plans but that isn’t occurring.
“The opt out gave the authority to the insurance commissioner to monitor to see if the plans were in compliance.“
However an attorney for OID reviewed the law and claimed Doak didn’t have authority to provide meaningful oversight, Burke said.
That hasn’t stopped Doak from approving plans, even while the opt-out portion of the law is in limbo. Records show Doak’s office has approved applications from four companies to operate their own plans since WCC ruled the provision unconstitutional.
In an email to The Frontier, a spokeswoman for Doak said: “The recent decisions by the Oklahoma Supreme Court and the Oklahoma Workers’ Compensation Commission have not resulted in final rulings that have changed the current operation of the Oklahoma Option. We are continuing to monitor the appeals of these issues as they develop.”
With no true oversight of opt-out plans, Oklahoma employers have limited benefits to thousands of injured workers in numerous ways, records show.
Some of the opt-out plans exclude illnesses caused by mold, silica and asbestos in workplaces. Others don’t cover repetitive motion injuries, pay for wheelchair vans and limit home health visits. One plan limits the cost of hearing aids and another won’t pay for replacement artificial limbs.
Several healthcare companies exclude coverage of bacterial illnesses. Brookhaven Hospital, a mental health facility in Tulsa, also excludes employees’ “mental conditions not caused by physical injury or violent crime,” according to records obtained by ProPublica.
Many companies required workers to report all injuries at the end of their shift or within 24 hours or claims would be denied. Meanwhile, workers at companies that don’t opt out have 30 days to notify employers.
Equal treatment a ‘mirage’
Vasquez’s appeal claims that Oklahoma’s law treats injured workers differently depending on whether they work for a company that opted out of the system. Under the state’s constitution, all citizens are entitled to equal protection under the law, her appeal points out.
Additionally, lawmakers can’t approve a “special law” that treats a certain class of people, injured workers in this case, differently. The commission agreed, issuing an order in February that the opt-out provision set up “a dual system under which workers are not treated equally.”
“The appearance of equal treatment under this dual system is like a water mirage on the highway that disappears upon closer inspection,” states the commission’s ruling.
Burke said an analysis of the Dillard’s plan shows there are many differences between it and the state’s core requirements for injured workers.
“The Dillard’s plan doesn’t cover any repetitive motion or carpal tunnel injuries. It doesn’t cover asbestosis. There is a long list of things that it doesn’t cover.”
Under the opt-out provision, companies are free to define what is a covered injury and what is not. And the law states courts may not review these determinations. Employees appeal denials to a committee within their company.
“The employee never has any say so. The employer chooses every doctor the plans say and no judge can overturn this,” Burke said.
Burke and other attorneys for injured workers say they agree with the WCC’s decision, but that a stay on claims was not necessary.
Apparently expecting the law could be found unconstitutional, lawmakers added an “invalidity clause” to the Oklahoma Employee Injury Benefit Act. That clause provides that injured workers’ claims proceed under the existing act governing companies that don’t opt out.
Kim Bailey, executive director of the commission, said if the WCC didn’t issue a stay of its order, injured workers could end up before the Supreme Court on hold anyway until the court acts.
“Once the Oklahoma Supreme Court rules in the Vasquez case, the Commission will then have clear guidance as to how to proceed, and will be prepared to handle all cases involving qualified employers in an expedited manner in accordance with the Court’s decision,” she said in an email to The Frontier.
Burke said the case pending before the state Supreme Court has already had a chilling impact on several southern states that were rushing to adopt opt-out plans.
Art Adams, an attorney for Buford, said his client just wants the same protection under state law that other employees receive. Adams plans to file a motion with the state Supreme Court, seeking an order that would lift the commission’s stay.
“It really leaves all these people in never never land no matter how severe their injuries are,” Adams said.