My mother had a strong brain for business. A normal housewife with no business experience until she and my father bought a motel, restaurant and lounge in 1971, she quickly adapted and demonstrated acumen for the task. She was smart in her decision making, and taught us the customer was always the sole and ultimate priority. She also cared deeply for her employees, and wanted to make sure they were appreciated and treated fairly. She knew that their dedication and effort were paramount in making the operation a success. This commitment was evident many years later, when some of those who had not worked for her in 35 years attended her funeral and paid their respects.

My mother was also a huge fan of Dillard's Department Stores. Mom was a black belt consumer; a shopping Ninja, and Dillard's was her dojo. She knew all the sales people by name and they knew her. I would joke that they would knock little old women out of the way to get to her when she'd arrive at the store. I called my father once and asked if Mom was home. He said, “No, Dillard's is having a sale. She is out saving money”. When the Founder of Dillard's, William Dillard died in 2002, I sent my mother a sympathy card (I really did). Yes, my mother was very fond of Dillard's.

She would not, however, approve of their Opt Out program in Oklahoma.

Dillard's is one of more than 40 companies to successfully submit and have approved an “alternate” plan to cover workplace injuries in Oklahoma. They have successfully “opted out” under the state's recent reforms. Opt out companies are required by law to offer benefits “equal to or better” than that available through traditional workers' comp. Advocates of Opt Out vociferously insist that they do just that. Some of the features of these plans, however, make me wonder otherwise.

Two weeks ago I wrote about another Oklahoma Opt Out employer, ResCare, and a specific case of one of their injured workers. Despite the worker  allegedly being injured in front of a supervisor, and her being sent to a company doctor the following day, her claim was initially denied by ResCare because she had “failed to notify the network” via a designated toll free number within 24 hours of the accident. The ResCare plan, as with most other Opt Out plans, retains the right to completely deny all benefits if certain stringent reporting requirements are not met. Her attorney, Bob Burke, has indicated in legal filings that she made that call 27 hours after the fact, while she was in the office of the doctor her employer sent her to (the denial was reversed a few weeks later after the employee retained counsel).

Now, if you thought that the ResCare “24 hour notice” was somewhat draconian, you will love Dillard's reporting requirements. Employees of their 10 Oklahoma locations generally have until the end of their shift in which an injury occurs to both report the incident and complete a report, or they risk being denied all medical and indemnity benefits. Now, this may sound perfectly reasonable for the clear cut injury. Fall off a ladder and break your arm? As long as you can write with the other hand, get that incident report completed. Mannequin falls off a shelf and beans you in the head? Before you lose consciousness as the paramedic's wheel you out, make sure someone makes that call. Bump your knee, and think nothing of it – until it swells up like a balloon the next morning?

Sorry. You could be shit out of luck.

Maybe Dillard's should adopt that policy for their customers regarding returns. “Thanks for shopping with us. You are free to return this through the remainder of my shift, which ends in 10 minutes”. A customer buying a blouse at Dillard's has infinitely more time to change their mind about the purchase than  an employee who wakes up the next day and realizes they are injured.

My mother once had just such an incident. She was rolling a vacuum cleaner out of a storeroom when it slipped down a step coming out of the doorway. She instinctively jerked upward to prevent it from dropping, feeling a very small twinge in her back. She thought nothing of it, until the headaches started the following day. What followed was a yearlong odyssey with multiple doctor visits and a perpetual headache; one that did not abate until a neighbor insisted she see his chiropractor. As a business owner she never pursued any workers' compensation claim. That is not the point. The point is that if this had happened to an Oklahoma employee of Dillard's Department Stores, they could have legally been denied all benefits simply because they did not know they were injured before the end of their shift.

Opt Out proponents will tell you that these plans include contingencies that allow “exception if the claims administrator determines that good cause exists for failure to give notice in a timely manner.” That means the employer exercises 100% control over the determination. There is no guarantee that such an exception would be made in the case I describe, and since there are no state audit or reporting provisions on claim activity for Opt Out employers, we will simply never know how stringently they enforce these reporting requirements.

Yesterday, in what defenders of Opt Out will see as a coordinated attack and detractors will see as a fortuitous sign from God, I received a report on Dillard's Opt Out program as I was writing this article. It was from Bob Burke, the previously referenced avowed arch enemy to Oklahoma Opt Out and all that it stands for. In it he provided a detailed comparison showing how much Dillard's Opt Out plan strays from those benefits offered by the state mandated workers' compensation system. In the report Burke claims to have identified “50 specific issues in which the Opt Out plan provides LESS benefits or RESTRICTED rights as compared to traditional workers' compensation.” He continues with, “I could find no area where benefits under the Opt Out plan were better than traditional workers' compensation.”

The full report is available here, and I encourage you to review it. Dillard's entire plan is available here.

In summary, according to Burke, Dillard's and their plan administrators will not cover:

Mold exposure
Bacterial infection
Tornado or lightning injury (In Oklahoma? Not a problem.)
Asbestos exposure
Innocent person in attack
Repetitive use of keyboard injuries (cumulative trauma injury covered ONLY if from “rapid” movement)
Any worker who works outside state for 90 days

Additionally, the claim is barred unless reported before the end of the shift on which injury occurs and an incident report is completed before the end of the shift. The worker must sign a “pledge” that recognizes that an injury must be reported to toll-free number within 24 hours and that medical care must be received within 14 days. Medical treatment must be pre-approved, and is not covered if there is a 60-day gap in treatment, or, as previously indicated, the worker fails to see a Company doctor within 14 days of injury.

By far, the most interesting elements probably lie in the provisions for appeal for employees covered by the plan. The Appeals Committee is appointed by the Company, and can only consider the medical opinion of Company-selected doctors. Additionally, the worker, according to Burke, is not afforded an opportunity to testify during the appeal. Any Appeals Committee decision may be appealed to the Oklahoma Workers' Comp Commission, where the en banc Panel is limited to review of benefits allowed by the plan itself. Appeals beyond that point appear to be severely restricted from what is available under the workers' compensation system.

Looking at the complete comparison within the report, it is hard to buy the “Opt Out is better” argument.

In a circuitous way it harkens back to previous times within our country. My mother used to get very frustrated by her states Employment Services Division “back in the day”. In what was probably a misguided attempt to bolster opportunities for minorities, the agency would ask employers what “race” they preferred when they submitted a posting for an open job. My mother always thought that focus was abhorrent, and routinely responded “human” as an answer to the question.  In the grand scheme of things, it was not too long before this time that “Separate but equal” was the law of the land when it came to managing access and amenities for people of different races.

That process was an abysmal failure, as it turns out separate but equal is only separate, and anything but equal. Yet we appear poised to launch an identical concept for the world of workplace injuries, and I cannot help but wonder if the results will eventually be the same.

Mother would have been very displeased. Very displeased, indeed.


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