workers' compensation
Rep. Chris Kannady (R-OKC) is carrying HB 2367, a reform of Oklahoma's workers' compensation system. The State Chamber of Oklahoma distributed a flier that irked Kannady during a Tuesday, Feb. 12, 2019, committee meeting. (NonDoc)

Near the end of Tuesday’s House Judiciary meeting, Chairman Chris Kannady (R-OKC) announced the agenda’s biggest bill — 178 pages of workers’ compensation controversy — would be held over.

“In light of the fact that apparently some of us file ‘disturbing’ bills, I will have some even better language to add into that bill and will have that for you next week,” Kannady said to the packed committee room. “Hopefully those that are disturbed by our bills will come talk to me between now and then and see if we can work something out.”

By emphasizing the word “disturbing,” Kannady drew public attention to a flier distributed this week by the State Chamber of Oklahoma, the leading advocate for the 2013 workers’ compensation reform package that has lowered insurance premiums for businesses, decreased payments to injured workers and been the subject of dozens of lawsuits.

Like similar proposals he worked on the last two sessions, Kannady’s HB 2367 would walk back some of those reforms and make other changes to the Workers’ Compensation Commission, the new administrative body created almost six years ago.

“I think we will get people to the table like we had before and we will get a compromise. We came really close last time, but we ended session early so the bill got stuck in conference,” Kannady said Tuesday in his office. “So I will work with the Senate Judiciary chairwoman and all the entities that are stakeholders, including the State Chamber, but let’s try to keep it above-board, which is not what this flier is doing.”

The front-and-back flier recalls the State Chamber’s effort to address Oklahoma’s high workers’ compensation insurance premiums and says the reform has saved Oklahoma employers “more than $300 million, allowing them to create more jobs and grow our economy.”

“So it is DISTURBING to see bills filed in 2019 that would undermine our workers’ comp system,” the flier (embedded below) states. “The State Chamber will continue to fight for lower premiums for Oklahoma businesses and protect historic workers’ compensation reforms.”

The flier does not mention any bill by number, as about two dozen measures addressing different components of Oklahoma’s workers’ compensation system have been filed.

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Morgan: ‘I think there is room for compromise’

Fred Morgan, president and CEO of the State Chamber of Oklahoma, defended the flier after Kannady’s remarks.

“As far as his sensitivity to the flier, I would say it doesn’t mention his bill at all,” Morgan said by phone Wednesday morning. “We thought we were being very diplomatic and trying to talk about our concerns about all of the different bills without naming his specific bill.”

Morgan said he sees room for compromise, such as increasing funding for the Multiple Injury Trust Fund and extending the soon-to-expire Court of Existing Claims, which hears cases filed before the new law took effect in 2014.

“We’re willing to talk about possibly giving some increases in worker benefits. Not necessarily attorney benefits, but worker benefits,” he said. “So there are some things that we are willing to talk to them about. To be honest, they benefit workers’ comp claimants attorneys, they benefit businesses and they benefit the workers who are injured. When those things come together, I think there is room for compromise and discussion.”

But much of Kannady’s current proposal would change definitions, adjust benefit charts and slightly raise the formulas related to compensation amounts for injured workers.

“Workers’ comp is a very complicated area of the law. It has many stakeholders, from doctors to lawyers to insurance companies to the business community and, not the least, the actual people who get injured,” Kannady said. “The needle has gone too far the other way, and people aren’t getting the benefits that they really need.”

Kannady’s proposed tweaks include allowing the Workers’ Compensation Commission to authorize medical tests, surgeries, injections, counseling and physical therapy as “continuing medical maintenance” for individual claimants. His bill would classify “mental injury” — such as PTSD — for first responders as a compensable injury, a provision that stands alone in HB 2271 by Rep. Josh West (R-Grove). That bill passed the House Judiciary Committee 15-0 on Tuesday.

HB 2367 would also broaden the scope of employment locations to include parking lots and common areas near a business if they are in the “exclusive control” of the employer. The bill would also expand parts of the “disability” and “permanent disability” definitions.

Morgan said his organization and its members are skeptical that the new system needs major changes.

“Workers are getting back to work faster. Claims are down. The amount of awards are down. It’s been a very big boom and boost to business. So we are obviously very concerned about anything that woulds start to undermine those reforms,” Morgan said. “This bill has a lot of very onerous provisions that we are concerned about.”

Claimant attorney Joe Biscone, however, said the 2013 reforms caused “a huge reduction in benefits” for injured workers.

“It’s killing them. It’s costing them their property. It’s costing them their livelihood. It’s costing them everything they’ve worked for,” said Biscone, who has practiced workers’ compensation law for more than 40 years. “That’s what brings the premiums down — when you start cutting benefits.”

Biscone is a partner in Johnson & Biscone, a member of the Oklahoma Association for Justice. He said the 2013 reforms decreased benefit amounts as well as the number of weeks for which injured workers can receive benefits. He highlighted a slew of other issues within the complex system, which numerous interest groups would like to change in one way or another.

“Everybody wants something different out of workers’ comp, so you have a mish-mash of opinions on how it should be,” Biscone said. “My side has been decimated by about 50 percent. The guys who are left are in it because we love the injured worker and somebody has to stand up for them.”

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Virgin: ‘It’s going to be a little bit of a fight’

Kannady’s authorship of the workers’ compensation omnibus bill has drawn murmured criticism around the State Capitol for his association with the Foshee & Yaffe law firm, partners of which handle workers’ compensation cases for claimants.

“There are people in the firm who practice workers’ comp, but my firm is set up where we are all our own [professional limited liability companies], so I am actually a 1099 employee of the law firm. There is no profit sharing, so to speak, in anything we do,” Kannady said. “I know a lot about it, but I have never once practiced in front of the Commission or the Court of Existing Claims.”

Kannady said he does handle federal workers’ compensation work “which is a completely different animal.” Morgan said he had no comment about Kannady’s legal career.

House Minority Leader Emily Virgin (D-Norman) said she believes Kannady has a “good base of knowledge” about the issues facing injured workers in Oklahoma.

“It looks like it’s going to be a little bit of a fight, if not a big fight,” she said. “I think what Rep. Kannady is trying to do is make the system a little better for workers. The reason that costs have gone down is because workers are not getting paid for their injuries. So I think what he’s trying to do is make sure that it’s a little better for them and that they are being compensated the way that they should be.”

Kannady was first elected to the Oklahoma House of Representatives in 2014, but Virgin was elected in 2011 and recalls the 2013 system overhaul. She said it was surprising to see Republican colleagues now trying to adjust the system.

“We warned them that this was going way too far and that it was going to be bad for workers,” Virgin said. “They went really far one way, and now they are sort of trying to come back to the middle, which is good for workers. But we didn’t have to go through five years of delaying payments to workers and cutting their benefits and all of these things before we got back to where we need to be.”

Morgan said the 2013 reforms were critical for Oklahoma’s economy.

“We were the sixth-highest premium state in the country, and we knew that Arkansas had already done workers’ compensation reform, and we knew we were actually losing business opportunities to other states,” Morgan said. “Our system was notoriously weak, both in getting workers back to work and in the cost.”

Kannady said he recognizes the political pressure his colleagues will be under regarding the issue.

“Everyone wants to be against things like this until it happens to them or their family members,” he said.

(Editor’s note: Both the State Chamber of Oklahoma and the Oklahoma Association for Justice have purchased advertising on NonDoc in 2019.)