I'm mad at the Okie legislature and you should be too!

[Okla-homey]

I'm angry with the Okie legislature. srsly.:mad: :mad: :mad:

They passed a Workers Comp reform bill that goes into effect in November. Work Comp needed tweaking. No argument here. But the guys who authored the bill snuck in a line that frankly, BLOWS!

The upshot of this line is that after the law goes into effect in November, Oklahoma employers who require employees to perform a task they are substantially certain will get that worker hurt or killed can no longer be sued for money damages by the injured worker or his/her surviving family.

As I said, I agree that Work Comp needed some work, but providing lawsuit immunity for companies that knowingly require people to do jobs they are substantially certain will get them hurt of killed is flat-out unfair. This a major change to Oklahoma law that is bad for working Oklahomans for obvious reasons.

I respectfully suggest you contact your Rep and as him or her if he or she voted for this bill. And if they did, as them if they are aware what they did with respect to green lighting employers to require their employees to do stuff they know are bound to get them hurt or killed with legal impunity.

Thanks for listening.

Here's the offending section of the bill, You can fast forward to the offending line if you want. I put it in red:


SECTION 3. AMENDATORY 85 O.S. 2001, Section 12, as amended by Section 14, Chapter 1, 1st Extraordinary Session, O.S.L. 2005 (85 O.S. Supp. 2009, Section 12), is amended to read as follows:

Section 12. The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees, any architect, professional engineer, or land surveyor retained to perform professional services on a construction project, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person, except in the case of an intentional tort, or where the employer has failed to secure the payment of compensation for the injured employee as provided for in Section 61 of this title. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court. If an employer has failed to secure the payment of compensation for his injured employee, as provided for in Section 61 of this title, an injured employee, or his legal representatives if death results from the injury, may maintain an action in the courts for damages on account of such injury, and in such action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee; provided:

(i) The immunity created by the provisions of this section shall not extend to action by an employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person against another employer, or its employees, on the same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker;

(ii) The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured or deceased worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker; and

(iii) This provision shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in paragraph (ii) of this section. This section shall not be construed to relieve the employer from any other penalty provided for in this title for failure to secure the payment of compensation provided for in this title.

(iv) For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for services performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications.

(v) If, as provided in this section, the employer has failed to secure the payment of compensation as provided for in Section 61 of this title or in the case of an intentional tort, the injured employee or his legal representative may maintain an action either in the Workers' Compensation Court or in the courts, but not both.

(vi) Nothing contained herein shall abrogate any rights arising under the Oklahoma Constitution.

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=459083

[yermom]

so what's the motivation to pass this? attracting more businesses that might be dangerous to move to Oklahoma?

[KC//CRIMSON]

What types of jobs? Skyscraper window washers?

[Leroy Lizard]

I'm angry with the Okie legislature. srsly.:mad: :mad: :mad:

They passed a Workers Comp reform bill that goes into effect in November. Work Comp needed tweaking. No argument here. But the guys who authored the bill snuck in a line that frankly, BLOWS!

Homey, the fact that you don't like a bill simply indicates that whatever it is they are trying to pass will cut into lawyers' income. So most likely it's a good thing.

[Tulsa_Fireman]

I had to look up what an intentional tort is.

Now knowing what an intentional tort is, even with such not qualifying, it doesn't take employers off the hook for suits as a whole, does it? Just intentional torts, the real sweet spot of suing the pants off of someone?

I'm guessing, Homey. Can you expand on that a little?

[Crucifax Autumn]

My kids like pop torts.

[Frozen Sooner]

If I'm reading this right, it means that the statutory tort immunity that typically attaches to work-related injuries is extended to situations where an employer has a reasonable expectation that the employee will be hurt. Under most WC schemes, employees may sue in tort for injuries that are deemed intentional on the part of the employee.

[Ike]

So lemme see if I got this straight:

I go find someone willing to accept payment for walking off a 500 ft cliff.
I am obviously substantially certain that an injury or death will occur.
Naturally, it does.

So his family can't sue me?

[Frozen Sooner]

If I'm reading this right, it means that the statutory tort immunity that typically attaches to work-related injuries is extended to situations where an employer has a reasonable expectation that the employee will be hurt. Under most WC schemes, employees may sue in tort for injuries that are deemed intentional on the part of the employee.

Translation:

Normally, Work Comp exempts employers from employee suits under tort for job-related injuries. Most states allow tort suits to proceed under certain WC exemptions. This closes an exemption in OK.

[Ike]

So lemme see if I got this straight:

I go find someone willing to accept payment for walking off a 500 ft cliff.
I am obviously substantially certain that an injury or death will occur.
Naturally, it does.

So his family can't sue me?

Nevermind...I just read the part of the bill directly before the part homey bolded. His family can sue me.

[Frozen Sooner]

So lemme see if I got this straight:

I go find someone willing to accept payment for walking off a 500 ft cliff.
I am obviously substantially certain that an injury or death will occur.
Naturally, it does.

So his family can't sue me?

Not under Tort. They can recover under WC.

[Frozen Sooner]

Nevermind...I just read the part of the bill directly before the part homey bolded. His family can sue me.

I think you misread that.

[Okla-homey]

If I'm reading this right, it means that the statutory tort immunity that typically attaches to work-related injuries is extended to situations where an employer has a reasonable expectation that the employee will be hurt. Under most WC schemes, employees may sue in tort for injuries that are deemed intentional on the part of the employee.

You got it, but not just when the emplpyer has a "reasonable expectation" like you said. Even when the employer is SUBSTANTIALLY CERTAIN the employee will get hurt or killed.

Currently, in egregious cases where the employer requires an employee to do something he knows (a/k/a is "substantially certain") is going to get him hurt or killed, the law in Oklahoma, until November, is that that employer can be sued...because he's an a-hole.

But not after November.

[Okla-homey]

Nevermind...I just read the part of the bill directly before the part homey bolded. His family can sue me.

But not after November.

[Ike]

I think you misread that.

Maybe...but per the job description, It sounds like an intent to cause injury to me.

But regardless, it's a trick question to begin with. There probably arent any 500 ft cliffs in OK. :D

[Ike]

But not after November.

OK, so according to Froz, they can sue under WC, but not under torts. For us regular people, mind explaining the difference for us?

[Frozen Sooner]

Maybe...but per the job description, It sounds like an intent to cause injury to me.

But regardless, it's a trick question to begin with. There probably arent any 500 ft cliffs in OK. :D

Sorry, misunderstood where you were going with that. I thought you were saying that the bill still allowed family to sue in cases covered by the amendment, not that they could sue for an intentional act.

Yeah, this just raises the bar for "intentional."

This is probably a measure to stop fact-finders from finding substantial knowledge when someone's working in a risky occupation and you could at least make a colorable assumption of risk argument. Still not sure if it's a good idea policy-wise, though.

[Okla-homey]

I had to look up what an intentional tort is.

Now knowing what an intentional tort is, even with such not qualifying, it doesn't take employers off the hook for suits as a whole, does it? Just intentional torts, the real sweet spot of suing the pants off of someone?

I'm guessing, Homey. Can you expand on that a little?

I'll try to avoid lawyer-ese.

The law in Oklahoma, until November, is that if you get hurt on the job, its covered by Work Comp. That means you can't sue your employer.

However, the law in Oklahoma has been that if your employer says, for example, "Climb up on that ladder in this rainstorm and fix that sparking wiring problem or you're fired...and I don't give a crap you aren't an electrician!" and you do, and get electrocuted, you or your surviving family can sue that jerk.

This new bill makes your employer immune to such lawsuits.

[Frozen Sooner]

OK, so according to Froz, they can sue under WC, but not under torts. For us regular people, mind explaining the difference for us?

Worker's compensation provides for specific damages for specific injuries that are sustained as the result of work-related activities. The purpose of WC statutes is to keep employers out of court, provide predictable outcomes for employee injuries, and provide quick resolution to employee injury claims. Employees also know that they're not going to get bubkis as a result of the employer arguing assumption of risk (as they used to do pre-WC legislation).

You don't really sue under WC (though WC does lead to many suits.) If it works the way it's supposed to, you get hurt, you tell the employer, and they cut a check for the statutory amount. Obviously it doesn't work that well in the real world-you get into suits about the nature and extent of the injury, etc.

However, as part of the tradeoffs for WC, as a general rule, if you're hurt at work you can't sue your employer under a tort theory.

[Ike]

thanks for the clarification.

[Viking Kitten]

so what's the motivation to pass this? attracting more businesses that might be dangerous to move to Oklahoma?

The motivation is to please the people who line their pockets via campaign contributions rather than legislate policies that protect the citizens of the state. The same citizens, I might add who keep voting for the a**holes who get this crap passed.

[Frozen Sooner]

Hey, you don't want to attract jobs to Oklahoma that immoral college graduates will take.

[Ike]

Worker's compensation provides for specific damages for specific injuries that are sustained as the result of work-related activities. The purpose of WC statutes is to keep employers out of court, provide predictable outcomes for employee injuries, and provide quick resolution to employee injury claims. Employees also know that they're not going to get bubkis as a result of the employer arguing assumption of risk (as they used to do pre-WC legislation).

You don't really sue under WC (though WC does lead to many suits.) If it works the way it's supposed to, you get hurt, you tell the employer, and they cut a check for the statutory amount. Obviously it doesn't work that well in the real world-you get into suits about the nature and extent of the injury, etc.

However, as part of the tradeoffs for WC, as a general rule, if you're hurt at work you can't sue your employer under a tort theory.

So there's a fixed amount that gets paid out for my guy walking off a cliff, and for further damages his family would have to prove that I had intent to cause injury?

[Frozen Sooner]

Yeah, pretty much. Again, drastically simplifying here.

[Ike]

And I should mention...I agree with homey. I think this is a moral outrage.

[Ike]

Yeah, pretty much. Again, drastically simplifying here.


Thats OK. Why complicate my moral outrage with possibly sensible facts?

[Frozen Sooner]

The kicker, though, is in the details.

For example, what constitutes "reasonable certainty" that someone will be injured?

Certain industries by their nature are dangerous. People get hurt at a pretty constant clip, no matter what safety precautions are taken. Does conducting a dangerous business constitute "reasonable certainty" that an employee will be hurt so that it rises to the level of an intentional tort?

The counter argument to that, I guess, is that anyone who takes that claim to court is going to get an assumption of risk defense, but the environment has changed significantly. I don't think juries are going to buy that defense as much as they used to.

[Leroy Lizard]

And I should mention...I agree with homey. I think this is a moral outrage.

Morals? Homey?

Bwahahahahaha!!!!!

You made me laugh so hard that snot came out of my nose.

http://weblogs.cltv.com/news/local/chicago/Money%20stacks.jpg

[Frozen Sooner]

Thats OK. Why complicate my moral outrage with possibly sensible facts?

Heh. Well, the fact that the usually-rabidly-pro-business Homey is against this gives the position against it some weight. Business should love this.

[BillyBall]

If the employee is taking said job I would assume he knows his risks and is accordingly compensated. If not, he's ****ing stupid and its Darwinism... I need to take a break from this place, its a ****ing tea party party...

[GKeeper316]

its just another in the long long line of laws passed in oklahoma to protect business owners and screw the people that work for them.

[Frozen Sooner]

If the employee is taking said job I would assume he knows his risks and is accordingly compensated. If not, he's ****ing stupid and its Darwinism...

Taking this position ignores both informational and bargaining-power disparities that exist in the real world outside of the first-year economics textbooks.


I need to take a break from this place, its a ****ing tea party party...

Pretty much everyone in this thread is taking a fairly liberal stance. I'm probably taking the most tea-party-like stance here, and (understatement of the year) I'm no tea-party supporter.

[GKeeper316]

so oklahoma becomes the state that every business wants to operate in, because in the event of a personal injury in the workplace incident, the company's liability is limited.

while at the same time, putting a stranglehold on the worker's ability to unionize for the benefit of collective bargaining.

i swear this is the most ***-backwards state to work in in america.

[Leroy Lizard]

so oklahoma becomes the state that every business wants to operate in...

Sold!

A few get screwed, but far more benefit.

[Frozen Sooner]

so oklahoma becomes the state that every business wants to operate in, because in the event of a personal injury in the workplace incident, the company's liability is limited.


Every state has some form of WC, so I'm not sure what you're getting at here.

[Chuck Bao]

I recently had a discussion about tort reform with one of the top lawyers in the country. She was saying that it is now almost impossible to win a case in the US outside of Rhode Island, Florida and California, unless there is clear evidence of intent. So, I don't think it is just an Oklahoma thing.

Okay, I'll go along with this for now and before corporate employers, with no responsibility, start ditching safety in the work place.

I'm curious, however, if malpractice insurance premiums have already started to fall. If not, why?

[Okla-homey]

The kicker, though, is in the details.

For example, what constitutes "reasonable certainty" that someone will be injured?

Certain industries by their nature are dangerous. People get hurt at a pretty constant clip, no matter what safety precautions are taken. Does conducting a dangerous business constitute "reasonable certainty" that an employee will be hurt so that it rises to the level of an intentional tort?

The counter argument to that, I guess, is that anyone who takes that claim to court is going to get an assumption of risk defense, but the environment has changed significantly. I don't think juries are going to buy that defense as much as they used to.

Froz,

Please cut it with the "reasonable certainty" stuff. You're muddying the water. We're talking "substantial certianty" here. Which under Okie case law = the employer KNOWS the guy is gonna get hurt. Full stop.

[Okla-homey]

The motivation is to please the people who line their pockets via campaign contributions rather than legislate policies that protect the citizens of the state. The same citizens, I might add who keep voting for the a**holes who get this crap passed.

DING-DING-DING. You got it Toots! And if you gotta hair on your hiney, you'll do a story on it. Kplzthx.

I swear, folks who are most impacted by this crap, rise up and wave "Don't Tread On Me" flags at Tea Party rallies so corporations, who don't give a good gawd-dang about them can scru them. It's the craziest crapola I've ever seen. Almost makes me want to turn Donk.

[AlbqSooner]

Ike - the main defference between work comp and tort lawsuits, without getting into a long legal discussion is that in work comp, it is a subtantial certainty that the money awarded to the claimant will be quite a bit less than in a tort action.

[TheHumanAlphabet]

I think after all the years of the dems cramming down the throats of Oklahomans bad worker's comp and union minimum wage laws, the repubs have tilted the pendulum back away from the far left. It typically goes way to the other direction before leveling off some time in the future.

[Frozen Sooner]

Froz,

Please cut it with the "reasonable certainty" stuff. You're muddying the water. We're talking "substantial certianty" here. Which under Okie case law = the employer KNOWS the guy is gonna get hurt. Full stop.

I'll defer to your greater knowledge of Oklahoma case law. If I haven't made it clear already, I'm inclined to think this bit of legislation is probably bad and agree with the assessment that someone inserted it at the direction of his corporate paymaster. I was just trying to explain why someone might think such a codicil was a good idea from a policy basis.

[picasso]

its just another in the long long line of laws passed in oklahoma to protect business owners and screw the people that work for them.

This is completely incorrect but hey, keep on truckin.

[Okla-homey]

I'm going to make one more pass at this, then I'll go stew privately on this issue.

The Workers Comp system was originally a compromise hammered out between business and entities who represent workers. In exchange for promising to buy insurance to cover injured workers, businesses generally enjoy immunity from lawsuits filed by those injured workers arising from on-the-job injuries. Makes sense right?

The long and short of it is this. Employers who employ a certain number of folks have to buy, as in MUST buy, insurance to cover their workers when they get hurt. If you get hurt, at work, your employer's Work Comp insurance carrier pays for your on-the-job injury-related medical care. It also pays you some income during your convalescent period. That's called TTD (total temp. disability).

We rock along under this system pretty effectively. However, in Oklahoma, that employers' immunity from lawsuits is pierced if that employer requires an employee to do something he knows is substantially certain, put another way, is bound to get that employee hurt or killed.

This new bill welds a bulletproof armor plate over that exception to immunity from suit. After November 2010, employers can't be sued, EVEN IF they order an employeee to do a task that employer is substantially certain will get him hurt of killed.

IMHO, that ain't fair. That ain't "Okie values." And that part of the bill needs to be repealed next legislative session. Frankly, I don't see how any Okie pol could defend this change to Okie Work Comp law with a straight face.

Thanks for your time.