OIL AND GAS IMMUNITY
- Strickland v. Stephens Production Company, 2018 OK 6
85A O.S. Sec. 5(A) gave oil and gas operators immunity from third party negligence action. In other words, even if an oil and gas operator was negligent, it could not be sued by an employee of another company that was injured or killed because of that negligence. In the case, the employee of a trucking company was killed while on the job at an oil-well site. When a third party negligence action was filed, the oil and gas operator moved to dismiss the case based upon the special treatment found in Sec. 5(A).
A unanimous Supreme Court found the special treatment to be an impermissible and unconstitutional special law under Art. 5 Sec. 59 of the Oklahoma Constitution. Justice Wyrick, who was Solicitor General in the Attorney General’s office when the case was briefed, did not participate in the decision.
The production company argued that oil and gas well owners and operators should be given immunity to third party liability because of the complexity of the industry and the need for oil and gas companies to have “certainty” in regard to their liability exposure. Justice Gurich, writing for the Court, said other industries also have complex processes and use subcontractors and “other employers…in all likelihood, also prefer to have certainty regarding their exposure to liability.” In the end, the eight Justices found that such treatment was not allowed under the state Constitution.
- Alcorn v. Vickers Construction, Caddo County district court, CJ-2015-70.
The unconstitutionality of the immunity statute that carves out an exception for third party liability for any company or subcontractor working on and oil or gas drilling site
A district judge in Caddo County, Oklahoma has refused to enforce a special provision added to the workers’ compensation law that applies to only contractors and subcontractors working on oil and gas drilling sites.
All other businesses in the state can be sued if they are negligent and cause an injury to the employees of other employers. HOWEVER, the legislature exempt only companies that were involved in oil and gas.
Reford Alcorn was injured when the employee of a separate company (third party) struck a piece of the drilling rig with his bulldozer, causing a 4,000-pound portion of the rig to fall on plaintiff.
For most of Oklahoma’s legal history, an employee of one company can sue a negligent third party in district court under traditional tort theories. But for some reason, the 2011 legislature decided to provide extraordinary protection not available in any other state to one industry. The only industry protected in the 2011 law and the Administrative Workers’ Compensation Act passed in 2013 is the oil and gas industry and their subcontractors working on a drill site.
In this case, the owner and operator of the well site tried to dismiss the negligence action based upon the statutory exemption. Lawyers for the injured worker alleged that the special exemption from third party liability is unconstitutional because it is a special law prohibited by two sections of the Oklahoma Constitution–46 and 59.
The Plaintiff’s brief went to the heart of the issue, “Had Mr. Alcorn been working at a non-oil and gas construction site, this Motion to Dismiss would have never been brought. However, because Western Oil can be considered an oil and gas operator, Plaintiff is barred from pursuing this lawsuit.”
In a one paragraph decision, District Judge Richard Van Dyck denied the Motion to Dismiss and the negligence action will continue.
MY COMMENT: This is another example of the legislature sticking language into a bill at the last minute to help a particular business or industry and to the detriment of an injured worker. They know such special laws are unconstitutional, but they pass them anyway.
HEART ATTACKS AND STROKES
- Death of James O’Haver v. JRT Trucking, Oklahoma County District Court,
A common law negligence action has been filed against the Employer on the basis that title 85A effectively precludes a heart attack or stroke injury from being found compensable under workers’ compensation law. Plaintiff alleges that exclusive remedy has been lifted on such cases because the statute precludes the use of either physical or mental stress to prove an injury in comp. The workers’ comp case has been denied.
This case was settled at Mediation. The constitutionality of the issue will be left for another day.
TEMPORARY TOTAL DISABILITY (TTD)
- Atwood Distributing LP vs. Camp, 2017 OK CIV APP 22, 394 P.3d 331
Is claimant entitled to back TTD when a soft tissue case turns into a surgical case? After a claimant exhausts the TTD maximum in Section 62, there often is a “gap” in weekly compensation until surgery occurs.
This decision is now final with the Supreme Court denying certiorari on April 3, 2017. At issue is whether Section 62 or Section 45 controls TTD when soft issue becomes a surgery case. Section 62 limits TTD in soft tissue injuries to 8 weeks, with another 8 weeks available if there is an injection, and another 16 weeks if surgery is recommended.
Section 45 is the regular TTD statute that limits TTD to 104 weeks. The problem arises if the surgery is not approved within the 32 weeks allowed by Section 62 and an injured worker is left without TTD benefits while he is waiting for surgery. We sometimes call that the “TTD gap.”
The Court of Civil Appeals issued a straightforward decision. Judge Mitchell wrote:
“Once Claimant had surgery her injury was no longer “nonsurgical” and Sec. 62 was no longer the applicable authority for TTD compensation. Accordingly, we find that a compensable “surgical” soft tissue injury entitles a claimant to TTD for any period of time which she is unable to work, subject to the general limits of Sec. 45.”
- Nix v. First Staffing Group USA, 2017 OK CIV APP 8
Does “injection” to extend TTD 8 weeks mean only an epidural steroid injection?
Division I of the COCA said no and allowed an additional 8 weeks for an IV injection in the emergency room. The Court said, “When Claimant was given an IV in the emergency room, fluids were forced beneath the skin for diagnosis or treatment. He was treated with an injection pursuant to §62(A) and is entitled to an additional eight weeks of TTD. The order of the Workers’ Compensation Commission, affirming the ALJ’s decision that intravenous therapy is not within the meaning of injection pursuant to 85A Supp. 2014 §62(A) is REVERSED.”
- Earl-Le Dozer Service, LLC v. Haulcomb, Supreme Court No. 115,224
After the Commission found that Claimant, who had a positive drug test following the accident, overcame the intoxication presumption defense, the Respondent and CompSource appealed to the Supreme Court.
Division I of the Oklahoma Court of Civil Appeals unanimously affirmed the finding of compensability by both the ALJ and the Commission en banc. Presiding Judge Goree clearly laid out the standard of judicial review as the same as from final agency decisions under the Administrative Procedures Act. The Court of Civil Appeals said, “We may only disturb the decision if one of the statutory grounds [in Section 78] is shown. We are not entitled to substitute our judgment for that of the agency as to the weight of the evidence on fact questions.” Judge Goree also wrote, “We will disturb the ALJ’s finding only if it is clearly erroneous. We will canvass the record to determine if the evidence is such that a factfinder could reasonably form a firm belief that Claimant’s state of intoxication had no causal relationship to the injury.”
The Oklahoma Supreme Court denied certiorari, so the decision in favor of the claimant stands.
- Young v. Station 27, Inc., 2017 OK 68
Application for Original Jurisdiction to determine constitutionality of 85A O.S. § 7 which gives Commission authority to hear retaliatory discharge or discrimination claims arising under the AWCA. The Court will decide whether such claims will continue to be heard in district court or before the Workers’ Compensation Commission, with direct appeal to the Supreme Court.
Supreme Court Decision:
(1) The date of injury controls, not the date of firing. In this case, the district judge had dismissed the lawsuit based upon the AWCA giving the WC Commission jurisdiction over Section 7 retaliatory discharge or discrimination claims. The case has been remanded back to district court.
(2) The AWCA shows a continuing of a public policy creating an exception to the employment-at-will doctrine in Oklahoma.
(3) When a statutory remedy is available, the general Burk tort–common law approach to requesting a jury trial in a retaliatory discharge claim is not relevant.
(4) It was not necessary for the Supreme Court to consider the constitutional challenge of 85A O.S. Sec. 7 in regard to injuries occurring on or after February 1, 2017. That challenge is based upon the alleged constitutional right to a jury trial in such an action. The Supreme Court ASSUMED Section 7 was constitutional for the present to decide this particular case, but reserved THE SUBSTANTIVE CONSTITUTIONAL CHALLENGE FOR ANOTHER DAY.
- Graham v. D and K Oilfield Services, 2017 OK 72
The six-week TTD limitation in a hernia injury per Section 61 of the AWCA. Challenged as an arbitrary limit set by the Legislature.
The Court found that the six-week TTD limitation was not unconstitutional, but opined that each recurrence of the same hernia entitled the worker to an additional six weeks TTD.
STATUTE OF LIMITATION
- Rolled Alloys, Inc. v. Donald Wilson, Supreme Court No. 115930
The Workers’ Comp Commission, 2-1, found that the statute of limitations in a cumulative trauma case is one year from the date of last exposure. There are three different statutory provisions that are poorly written and are in conflict on this issue.
The decision was sustained by the Court of Civil Appeals, Division IV, 3-0, on December 22, 2017. A Petition for Rehearing was denied.