Damien Smith vs Baze Corp. Investments Inc. – The Case That Could Change the Future of Workers’ Comp in Oklahoma
On September 30th, 2015, the case of Damien Smith vs Baze Corp. Investments was heard before the Oklahoma Supreme Court. The outcome of this hearing could determine the future of workers’ compensation laws in Oklahoma, for better or for worse. Here’s what you need to know about the case, and how it affects workers in Oklahoma:
Issues with Workers’ Compensation and Deferral Policy
Damien Smith injured his right knee on the job and his treatment included surgery. Under the new Employee Injury Benefit Act1, injuries are graded in severity according to guidelines from the American Medical Association (AMA). According to the AMA Guides, Smith’s injury was defined as only 1% of his body, so he was awarded less than $1,000. Before the new act, an injury of this type would typically be worth about 20% disability, which is around a $17,500 settlement.
To make matters worse, because Smith decided to return to work, the new act’s deferment clause took away his compensation for every week he worked. In the end, Damien Smith received $0 in workers’ compensation, not only because of the definition of his disability, but because he decided to go back to work. For these reasons, attorneys Gary Prochaska and Bob Burke believe this act is unconstitutional.
The Problem with AMA Exclusivity
Though there are many problems with this act, the two main issues are: 1. the amount of compensation offered exclusively according the AMA Guides and, 2. the deferral policy that punishes workers for returning to work. The AMA Guides have been used for years to evaluate disabilities, but the new act doesn’t allow for any other doctors’ recommendations or diagnoses. Without doctors’ opinions, injuries are categorized based on a general standard defined by the AMA, not based on the worker’s unique injuries. Judges aren’t allowed to even consider medical records or other medical opinions, meaning the judge can’t consider all of the available evidence.
The Grand Bargain Has Been Breached
More than 100 years ago, the Grand Bargain was created to allow workers to have quick access to reasonable settlements in exchange for protecting employers from being sued in district court. Under the new Employee Injury Benefit Act, workers aren’t receiving the benefits they deserve, but still cannot go to district court to sue for a higher settlement. Because the benefits workers are receiving have dropped so far below what is reasonable, the Grand Bargain has been breached.
Why the Act is Unconstitutional
Attorneys Bob Burke and Gary Prochaska believe the Employee Injury Benefit Act is unconstitutional because it
1. prevents the judge from considering all evidence of the worker’s injury, and 2. the deferral of disability punishes workers who choose to return to work.
Possible Changes in Oklahoma Workers’ Compensation
If the Supreme Court decides that none of the act is unconstitutional, this would be a landmark case for the injured workers of Oklahoma. It would make the courts inaccessible for injured workers, simply because it would no longer be feasible for lawyers to take workers’ compensation cases because of the low settlement amounts. Lawyer’s fees would take too much compensation away from the already-low workers’ compensation award. It wouldn’t benefit the worker or the lawyer in this situation.
If the case is won, the future of workers’ compensation laws depends on what the Supreme Court decides is the remedy for the unconstitutional sections. The preferred outcome would be that Oklahoma reverts to the old law and system, but that is an optimistic outcome. Instead, it is possible the court will strike down the exclusivity of AMA Guides’ definition of disabilities, and hopefully strike down the deferral policy.
Though the decision could take months, workers are waiting to try their cases until the Supreme Court speaks. This puts pressure on the Supreme Court to make a decision quickly, as potential cases are pending.
When asked about the outcome of the case, Bob Burke confidently said, “I’ve represented 15 thousand workers, and having written previous workers’ compensation laws in part, I believe they will strike down one or more sections of law which will allow workers to have access to the courts.”
Stay tuned for the blog that will discuss the outcome of the case. Until then, send your thoughts to attorneys Gary Prochaska and Bob Burke, as this case could potentially affect your future!