Sometimes actions speak louder than words. I think this would definitely hold true for recent developments in Vasquez vs. Dillard's, the case in which Oklahoma Opt Out has been ruled unconstitutional. On April 15, 2016, Oklahoma's Attorney General filed a Motion for Stay of Proceedings with the OK Supreme Court attempting to delay the hearing of Dillard's appeal in the case. The reason cited? Well, they want a chance to let the Oklahoma Legislature consider amendments that would address some of the key points in the case. In other words, they want to fix the mess they made with this legislation.

It is a great concept. I am going to try it the next time I get a speeding ticket. I will simply ask the judge to hold off issuing a verdict until I learn how to drive more slowly. Or if I'm arrested for DUI, perhaps they will delay hearing the case until I can learn how to drive sober. Yeah, that's the ticket (pun intended).

The Attorney General states in the motion that they should not need any longer period than two months, and that such a minor time requirement would cause “no substantial hardships” to anyone affected by the delay. Sure. What are two months to a bunch of legal eagles who are getting a regular paycheck during that period? The fact that all Opt Out case decisions have been put on hold by the Workers' Comp Commission pending the outcome of this appeal should barely be considered by the court. Certainly injured workers whose claims have been denied and currently lack any benefits whatsoever will have no problem with another meagerly two months. Heck, a bank can barely launch a foreclosure in such a short amount of time. While a landlord can evict a family in that period, they can probably still live in their car. Those whiny malcontent injured should just wait patiently while the politicians have an opportunity to try and cover their tracks.

That would be what reasonable people would do, I'm sure.

If the reason for my apparent sarcasm is not clear to you, it is that I have grown very weary of the legal professions increasing tolerance for interminable delay. Any work comp case, be it standard or “alternative”, is tied to a human life and livelihood, and that life deserves as quick a resolution as possible. I understand the need to deny some claims; it is just that we shouldn't accept such tremendous time requirements to reach these conclusions. I find the cavalier attitude that two months should be “no substantial hardship” offensive. Jonnie Vasquez has already waited two years for some resolution to this case. You don't think a two month delay will matter to her?

The core of the changes being considered by state legislators is reflected in House Bill 2205, which would require employers to cover the same compensable injuries (emphasis added because it is a word oddly inserted in the proposed changes) covered by the administrative comp system. They would also have to follow the same reporting requirements and statutes of limitation provided for under the administrative comp system. It still specifically states that other areas of the Administrative Act would not have to apply, and where the law currently refers to benefit payments being “equal to or better” than traditional comp, the proposed language has been modified to read simply “equal to”.

That last point is interesting considering that ERISA style benefit payments are taxed while comp payments are not. There is no accommodation for that in the proposed language changes.

The reality is, no matter what the Oklahoma legislature does, they will not be able to un-ring the bell for cases filed over the last two years. They can attempt to apply whatever colossal bandage they deem necessary, but that will not fix or resolve Vasquez or any similar case currently in the system. For that reason the requested delay makes no sense.

Still, the move is telling. The actions of the Legislature and the Attorney General – trying to fix a problem before the Supreme Court has told them one exists – shows us that they do not believe they have a winning hand in the Vasquez case. They know they screwed up, and the attempt to salvage the scattered remains of their broadly battered effort exemplifies that fact. As I've indicated before regarding Opt Out, I don't care how much lipstick you put on that pig, you cannot change its underlying porcine genetics.

For its part, Dillard's in a response filed April 21st stated they do not object to the delay, but that they do not believe the “pending legislation resolves or moots all issues in this appeal”. On that point, we can certainly agree (even if I am talking about different issues). The largely cosmetic changes being proposed do nothing to solve the biggest problem with Oklahoma Opt Out; its complete lack of operational transparency.  That will continue to be the issue that dogs these alternative plans until their dying day.

As for the AG request, we just have to wait to see what the Supremes elect to do. No matter their decision, the real truth is out. The state has, in my opinion, signaled they have a losing hand, and no poker face is going to undo the damage already done.

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