Lead Opinion
I. Introduction
T1 Petitioner, a former employee, filed a workers' compensation claim and alleged she was injured on-the-job and needed surgery. Her former employer (employer) argued that she was barred from receiving workers' compensation because she alleged a cumulative-trauma injury and she had not worked a continuous 180-day period for that employer. The administrative law judge denied her claim because she had not worked the 180-day period. The Workers' Compensation Commission affirmed the order of the administrative judge.
{2 Employer also argues on appeal petitioner has no right to file either a workers' compensation claim or seek a common-law remedy in a District Court, Employer asserts petitioner has no legal right or remedy to receive any type of compensation or medical care from her employer in any form. Employer argues petitioner has no right to an opportunity to prove her claim of injury before any court or any administrative agen-ey. Employee argues her employer is making an unconstitutional application of workers' compensation statutes.
13 Because the employee challenged the constitutionality of 85A 0.8. §§ 2 (14) & 5, this Court issued an order providing the Oklahoma Attorney General, Speaker of the House of Representatives, and the President Pro Tempore an opportunity to intervene by filing entries of appearance herein and briefing issues. They did not intervene and file briefs, The amicus curiae, State Chamber, filed a brief in support of the constitutionality of the challenged statutes.
T4 Several decades of court precedent from both the U.S. Supreme Court and the Oklahoma Supreme Court on the subject of how state and federal statutes interact with State and Federal Due Process constitutional provisions clearly show an unconstitutional application of a workers' compensation statute by employer in the matter before the Court. We hold 85A 0.8. § 2 (14) violates the Due Process Section of the Oklahoma Constitution, Art, 2 § 7, when applied to employee because the statute's overinelusive and underinelusive classifications are not rationally related to legitimate State interests of (1) preventing workers' compensation fraud and (2) decreasing employers' costs.
II. Workers' Compensation Statutes Raised by the Parties
T5 Two workers' compensation statutes are used by employer in support of its argument: 85A 0.8. Supp. 2018 § 2(14) & § 5. The first defines cumulative trauma based upon repetitive physical activities and adds a condition requiring an employee to have completed one hundred eighty (180) days of continuous employment.
14, "Cumulative trauma" means an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment. Cumulative trauma shall not mean fatigue, soreness or general aches and pain that may have been caused, aggravated, exacerbated or accelerated by the employee's course and scope of employment, - Cumulative trauma shall have resulted directly and independently of all other causes and the employee shall have completed at least one hundred eighty (180) days of continuous active employment with the employer;
85A 0.8.Supp. 2018 § 2 (14).
Employer argues that two reasons exist for an employee to work 180 continuous days as a condition to receive workers' compensation, The first, "It is reasonable to conceive that a worker who has worked for a significant period of time is more likely to have sustained an injury, while a worker. who works for a shorter period did not ... [and the 180-day requirement] places reasonable qualifica
T6 The second argument is that preventing fraud and controlling economic concerns are legitimate State interests, and the Legislature has a role in preventing fraud and advancing economic interests by decreasing employers' costs. The brief of amicus curiae provides rankings from different states based upon costs for workers' compensation insurance premiums, but it does so using a rule-prohibited Brandeis brief method.
17 Employer makes the following argument:
This limitation bears a rational relationship to a legitimate State interest. Preventing fraud is a legitimate state interest. Placing a requirement that an employee work for a period of time before qualifying for a compensable injury ensures that frivolous claims and fraudulent allegations are controlled.
Respondent's Answer Brief, at pp. 5-6.
Amieus curige similarly argues that the 180-day period is a "durational requirement ... necessary to define the bounds of the injury ... [and the] exposure requirement merely serves to ferret out fraudulent claims and ensure that the injury claimed is fairly attributable to the period of employment."
{8 Employee recognizes that legitimate State interests include legislation to prevent fraud and advance economic interests. Employee also recognizes the Legislature's role in creating workers' compensation laws. Employee argues that § 2(14) class of employees who work less than 180 days is a statutory class that violates the Due Process section of the Oklahoma Constitution, Okla. Const. Art. 2 § 7.
. T 9 Employer also argues that employee is barred from bringing a District Court action against her former employer. Employer relies upon 85A O.S8. Supp. 2018 § 5.
10 Employee argues that when the workers' compensation statutes were originally created in several States a grand bargain was created. This bargain consisted of an injured worker relinquishing a common-law right to bring an action in a District Court against the worker's employer and the worker gained more certain statutory compensation but the compensation was less in amount. On the other hand, the employer relinquished certain common-law defenses in a District Court action and gained an economic liability that was less and fixed by statute.
111 This Court has a fundamental duty to ascertain and give effect to, or enforce, the Legislature's intent expressed in any statute the Legislature creates.
. 112 The employee in this controversy alleges a cumulative trauma injury occurred, in fact, during less than 180 continuous days of employment. Respondent and amicus cu-riage do not assert that § 2(14) is a legislative determination that a cumulative injury does not, or cannot, in fact occur during the first 180 days of a person's employment. They agree that cumulative trauma is an injury "caused by the combined effect of repetitive physical activities extending over a period of time in the course and seope of employment." The brief of amicus curiqe emphasizes this language to show that cumulative injury occurs during a period of time.
€13 Respondent and amicus curige appear to agree that the statutory language would not prohibit an employee from filing a cumulative trauma claim on the 181st day of employment, where the claim would be based upon repetitive and cumulative trauma occurring for a period of time during the previous 180 days of employment. The language requiring 180 days of employment is thus not construed as defining the nature of an injury, but a condition required to file a claim against an employer in addition to the employee having suffered an injury, As explained by amicus curiae, "the Legislature ... delineated a particular number of days that an individual must be employed prior to filing a claim for an injury that was sustained by 'repetitive physical activities," or 'the "legislative state purpose" of the 180-day requirement is that "an individual be employed for a certain length of time prior to subjecting the employer to a claim for a repetitive injury." ~
"14 Respondent and amicus curiae also characterize the 180-day' employment language in § 2(14) as one element defining "cumulative trauma." Construing the language as part of a definition for cumulative trauma versus viewing it as a condition for filing a claim does not help employer's legal position. Regardless whether the language is part of the definition of a cumulative trauma or a condition for filing a claim in addition to defining trauma based upon repetitive injury, the statute is determining as a matter of law a class of employees who are prohibited from filing a workers' compensation claim although they may have suffered, in fact, a repetitive injury arising out of the course and scope of employment.
$16 The language of § 2(14) creates two classes of employees alleging a cumulative trauma injury. The first class are those employees who allege, in fact, they have suffered a cumulative trauma compensable injury during the first 180 days of employment and who may file a claim for compensation on or after the 181st day of continuous employment. The second class are those employees who allege, in fact, they have suffered a cumulative trauma compensable injury during the first 180 days of employment and who are barred by § 2(14) from filing a workers' compensation claim because they have not completed 180 days of continuous employment. Employee alleges she is in this latter class of employees, and that the duration-of-employment predicate for filing a workers compensation claim in § 2(14) is unconstitutional because she is an injured worker innocent of the evil that § 2(14) was designed to address. |
III. Employee's Burden to Show Unconstitutionality
$17 A constitutional analysis be-ging with the well-known judicial recognition that the Oklahoma Legislature is constitutionally vested by Article 5 36
IV. Employer's Reliance on United States R.R. Retirement Bd. v. Fritz.
1 18 Respondent and amicus curiae argue a legislative body need not state its reason for creating legislation and a legislative right or remedy is solely within the discretion of the legislative body. They conclude these principles make employee's claims without merit,. We address this argument first because if they are correct then their argument would be outcome determinative on the constitutional issues raised by the employee. However, as we explain, we conclude their argument is insufficient.
€19 Employer relies upon the U.S. Supreme Court opinion in United States R.R. Retirement Bd. v. Fritz,
120 Amicus curiae makes a similar argument explaining that the Legislature has
§°21 Addressing the first cited principle from United States RR. Retirement Bd., we agree the Legislature is not required to explain its reasons for creating a statute or expressly state that it has a particular intent when crafting legislation, But this Court has a fundamental duty to ascertain and give effect to, or enforce, the Legislature's intent expressed in any statute the Legislature creates.
122 Addressing the second cited principle from United State RR. Retire ment Bd., and as we explain more fully herein, an argument which relies on the power of a legislative body to create or abolish statutory rights and remedies as proof that a statutory classification is rational, is an argument that not only contains a fallacy
V. Employee's Claim that the Due Process Section of the Oklahoma Constitution is Violated by Application of 85A 0.8. Supp. 2018 § 2(14) & § 5
" 23 Due process often has been explained by this Court in opinions discussing both the Fourteenth Amendment's
24 One hundred years ago, the U.S. Supreme Court indicated that the Federal Due Process Clause "would likely bar states from abolishing entirely rights of action on behalf of employees suffering physical harm because of wrongs attributable to employers,"
125 Then the High Court had a period where it developed a rational-basis review used for challenges to legislation that was characterized as social and economic in its application and not impacting a personal fundamental right.
$28 We recently noted the nature of this review when we quoted an opinion from 1977 which in turn quoted an opinion from 1930.
It is well settled that the state, or its agents, in the exercise of its police power can extend this power only to such measures as are reasonable under all the circumstances, The means adopted must bear some real and substantial relation or be reasonably necessary for the accomplishment of a legitimate object falling within the scope of the police power, and the law or regulation’must tend toward the preservation of public welfare, health, safety, or morals.
Jacobs Ranch, L.L.C. v. Smith,
A court determines (1) if there is a legitimate government interest (a) articulated in the legislation or (b) championed by the parties or (c) expressed by a recognized public policy in support of the legislation, and (2) if that interest is reasonably advanced by the legislation. We have expressed often this two-part test in a negative form when explaining an unconstitutional exercise of the police power is an arbitrary and capricious exercise of power; 4.e., the exercise of legislative power is unconstitutional when it was not reasonably devoted to a legitimate interest or end, or when the legitimate police-power interest was not regulated within reasonably necessary means for the identified State interests
130] 129 In due process jurisprudence involving whether a legitimate state interest exists, a court's analysis will generally be less intrusive upon an exercise of legislative discretion when the legislation is economic in nature. - For many, an unforgivable jurisprudential error of Lochner was the Court substituting its own judgment for that of a legislative body on an economic issue
180 There is little doubt that a state legislature may alter private contractual rights of employers and employees when it properly exercises its police power in creating a particular workers' compensation law,
132 When a due process or equal protection challenge is made because a statute creates different classes of people with different legal rights, a legal analysis will often discuss whether the statute's classification is underinelusive (statute includes too few people in its created class) or if the classification is overinelusive (too many people are included in the statutory class), Generally, the U.S. Supreme Court has upheld an underinclusive statute regulating solely an economic matter when only a portion of the identified evil has been regulated,
134 The distinction made in Wieman is noteworthy because it has been applied by courts to legislation in the nature of business regulation, and both respondent and amicus curiae argue that the legislation should be treated as economic and business related. For example, in the 1951 opinion of Adwon v. Retail Grocers Ass'n, we noted our prior opinion in 1949
T85 We agree with respondent and amicus curiae that decisions concerning public policy in creating and abolishing causes of action are routinely within the judgment of the Legislature. This Court has a long history of recognizing the Legislature's general police power to alter private personal rights in contexts of creating or abolishing a cause of action. For example, in Davis Oil Co. v. Cloud,
186 In BMW, punitive, damages were awarded to 'punish the defendant's business practices, and the Court used a substantive component of due process in holding that the excessive nature of the damages were not "reasonably necessary to vindicate the State's legitimate interests" in punishing the prohibited business practices.
137 Is prohibiting injured workers from filing a claim for cumulative trauma during the first 180 days of employment reasonably necessary (or a nonarbitrary classification) to vindicate the State's legitimate interest in preventing fraudulent workers' compensation claims?
138 In Jimenez v. Weinberger, the U.S. Supreme Court addressed the issue of a statute created for the purpose of avoiding or stopping Social Security Act "spurious claims" by creating two classes of claimants.
189 Similar to Jimenes, § 2(14) creates two classes of employees with cumulative trauma injuries for the purpose of avoiding or stopping spurious (or fraudulent) workers' compensation claims, one class is entitled to compensation and another class is not, Also similar to Jimenes § 2(14) individuals are denied the opportunity to establish their claims and their right to receive compensation for injuries arising out of the course and seope of employment, i.e., one class may file a claim and one may not.
140 The High Court noted prevention of spurious claims is a legitimate governmental interest.
§41 Two years after Jimenez, the U.S. Supreme Court explained its holding by stating that if a conclusive exclusion of one class to a statutory benefit is combined with a statutory prohibition for members of this class to show they would otherwise be entitled to the statutory benefit; then the purpose of providing a statutory benefit to those entitled is lost as to those individuals, Further, an articulated purpose of preventing spurious claims was constitutionally insuffi-client in Jimenes because "to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment."
148 We also observe, like the U.S. Supreme Court in Jimenes, the prevention of spurious and fraudulent claims is a legitimate governmental interest, As noted by the High Court, it does not follow, however, that the blanket and conclusive exclusion of one class of injured employees to benefits is reasonably related to the prevention of spurious claims. Assuming that employees with less than 180 days of employment are, in fact, within the class of people who would be entitled for benefits but for the 180-day challenged statutory classification, then the statutory classification digeriminates without any rational basis for the distinction since the potential for filing spurious claims is exactly the same for cumulative-trauma employees before and after 180 days of continuous employment.
[ 44 In Weber v. Aetna Casualty & Surety Co.,
145 Employer also makes an argument that § 2(14) and § 5 work together so that employee has no right and no remedy for her alleged injury and this combination of the two statutes is constitutional, - Paragraph "C" of § 5 states: "The immunity from civil liability described in subsection A of this section shall apply regardless of whether the injured employee is denied compensation or deemed ineligible to receive compensation under this act." Respondent argues employee is prohibited from filing an action in the District Court against her employer although she has no workers' compensation remedy.
$46 The § 5 prohibition of filing in a District Court shows that the interest of the State behind the clasgification scheme cannot be solely the prevention of fraudulent claims filed with the Workers' Compensation
[47 But their argument repeats a similar flaw. They argue a rational basis for legislation is shown if the purpose of a statute, as articulated by a legitimate State interest, is accomplished in any degree regardless of the irrationality of the classifications created by the statute. Their first argument is that a statute with a purpose to decrease workers' compensation fraud is constitutional if workers' compensation fraud is, or potentially will be, decreased in any degree by operation of the statute. Their second argument using the legitimate State interest in lowering costs to employers becomes: A statute with a purpose to lower an employer's costs is constitutional if employer's costs are, or potentially will be, decreased in any degree by operation of the statute. Just as their first argument fails to include concepts of overinelusive and underinelusive constitutional flaws in statutes receiving a rational basis review, so does their second argument. We decline their invitation to adopt their position that class distinctions between employees with similar injuries is rationally related to a legitimate State interest although principles of underin-elusiveness and overinelusiveness show irrationality in the classification,
148 We conclude the overinclusive and underinelugive nature of § 2(14) as it relates to the legitimate State interest to prevent workers' compensation fraud and its prohibition preventing an employee from filing a non-fraudulent workers' compensation claim violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7. Adwon v. Retail Grocers Ass'n, supra, Suntide Inn Operating Corp. v. State, supra, Jacobs Ranch, L.L.C. v. Smith, supra, Wieman v. Updegraff, supra, and Jimenez v. Weinberger, supra.
VI The Grand Bargain
[49 Employee argues that when the workers' compensation statutes were originally created in several States a grand bargain was created. This bargain consisted of an injured worker relinquishing a common-law right to bring an action in a District Court against the worker's employer and the worker gained statutory compensation in a lessor amount. On the other hand, the employer relinquished certain common-law defenses in a District Court action and gained an economic liability that was both less in individual cases and fixed by statute. Employee cites to forty-two (42) provisions of the current workers' compensation scheme and argues that (1) workers' compensation remedies are inadequate, (2) the grand bargain is violated, and (8) the order denying her workers' compensation benefits should be reversed.
T51 Public policies adopted by our Legislature one hundred years ago that were foundational for establishing workers' compensation laws, such as the historic Legislature's views on the grand bargain and economic-welfare shifting, do not control or limit the current Legislature's determination > of public policy. - It is a well-known principle of statutory and constitublonal construction that one Legislature cannot bind another, and this Court has followed this principle for several decades.
€52 This discussion of the grand bargain shows that the concept is important to the extent it is a beginning for an analysis to inform a court what may, or may not, be current and legitimate State interests (or current public policies) for the purpose of a court's statutory analysis in the context of addressing this employee's constitutional claim. We have concluded herein that § 2(14) was unconstitutionally applied to employee, and reverse the order of Workers Compensation Commission for further administrative proceedings consistent with this opinion. - Because we have determined § 2(14) creates an irrational classification and violates Okla. Const. Art. 2 § 7 when applied to employee, it is not necessary to analyze employee's claim that § 2(14) violates the grand bargain upon application of Art, 2 § 7, or if § 2(14) is unconstitutional upon application of some other provision of our State Constitution.
158 Employee's invocation of a constitutionally deficient grand bargain in the current Oklahoma statutes is a hypothetical question whose judicial resolution in this appeal would not, under the present record on appeal, alter her rights on remand.
VIL. Conclusion
$54 We conclude 85A O.8.Supp. 2018 § 2(14) violates the Due Process Section of the Oklahoma Constitution, Art, 2 § 7, because its overinelusive and underinelusive classifications are not rationally related to legitimate State interests of (1) preventing workers' compensation fraud and (2) decreasing employers' costs. We do not adjudicate employee's claims challenging the construction or constitutional sufficiency of other workers' compensation statutes, or her Okla. Const, Art. 2 § 6 claim, or her assertion that the workers' compensation grand bargain has been violated.
4[ 55 The order of the Workers' Compensation Commission is reversed and the matter is remanded for further proceedings consistent with this opinion,
Notes
. Respondent's Answer Brief, at p. 4.
. The term Brandeis brief is used to describe a brief which emphasizes statistics and commission reports more than judicial precedents, and the origin of the appellation is a brief filed by Louis D. Brandeis when he appeared as counsel in Muller v. Oregon,
In an appeal, the brief of an amicus curiae is limited to facts and issues raised by the parties that have not been "presented adequately" by the parties from the viewpoint of the amicus curiae. Okla. Sup. Ct. R. 1.12(b)(1). This language does not allow an amicus curiae to expand the record on appeal via a Brandeis brief, The record on appeal is certified from the clerk of the lower tribunal. Chamberlin v. Chamberlin,
. Brief of amicus curiae at p. 9.
. Okla. Const. Art. 2 § 7: "No person shall be deprived of life, liberty, or property, without due process of law."
. 85A 0.S. Supp. 2013 § 5;
A. The rights and remedies granted to an employee subject to the provisions of the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone else claiming rights to recovery on behalf of the employee against the employer, or any principal, officer, director, employee, stockholder, partner, or prime contractor of the employer on account of injury, illness, or death. Negligent acts of a co-employee may not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights
B. - Exclusive remedy shall not apply if;
1, An employer fails to secure the payment of compensation due to the employee as required by this act, An injured employee, or his or her legal representative in case death results from the injury, may, at his or her option, elect to claim compensation under this act or to maintain a legal action in court for damages on account of the injury or death; or
2. The injury was caused by an intentional tort committed by the employer, An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury, Allegations or proof that the employer had knowledge that the injury was substantially certain to result from the employer's conduct shall not constitute an intentional tort, The employee shall plead facts that show it is at least as likely as it is not that the employer acted with the purpose of injuring the employes, The issue of whether an act is an intentional tort shall be a question of law,
C. - The immunity from civil liability described in subsection A of this section shall apply regardless of whether the injured employee is denied compensation or deemed ineligible to receive compensation under this act.
D. If an employer has failed to secure the payment of compensation for his or her injured "employeé as provided for in this act, an injured employee, or his or her -1ega1 representative if death results from the injury, may maintain an action in the district court for damages on account of such infury.
E. The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker.
F: The fmmunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured or deceased worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker.
G. This section shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in subsection F of this section, Nothing in this act shall be construed to relieve the employer from any other penalty provided for in this act for failure to secure the payment of compensation under this act.
H. For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for services performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications.
I, If the employer has failed to secure the payment of compensation as provided in this act or in the case of an intentional tort, the injured employee or his or her legal representative may maintain an action either before the Commission or in the district court, but not both.
. The Court has noted on more than one occasion the purpose of the workers' compensation laws to abrogate the worker's common law right of action with the substitution of an exclusive statutory remedy. See, eg., Earnest, Inc. v. LeGrand,
. In re T. H.,
. Yocum v. Greenbriar Nursing Home,
. Yocum v. Greenbriar Nursing Home,
. A "compensable injury" includes "cumulative trauma ... Arising out of the course and scope of employment." , 85A O.S. Supp. 2013 §2(9)(a).
. The statutory language may not be deemed to create an irrebuttable presumption that no cumulative trauma repetitive injury can actually exist, in fact, during the 180-day period. For example, there is a fundamental difference be
The power to adjudicate questions of fact framed by a controversy is exclusively a judicial power, or in the case of administrative proceedings, a quasi-judicial power. Conaghan v. River field Country Day School,
. - Oka, Const. Art. 5 § 36: "The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grani of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever."
. Movants to Quash Multicounty Grand Jury Subpoena v. Dixon,
. In re Detachment of Municipal Territory from City of Ada, Okla.,
. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co.,
. CDR Systems Corp. v. Oklahoma Tax Commission,
. CDR Systems Corp. v. Oklahoma Tax Commission,
, Generally, a party challenging the constitutionality of a statute must have a legally cognizable interest which is threatened by application of that statute. Seal v. Corporation Commission,
There are exceptions to this general rule. See, e.g., Gentges v. Oklahoma State Election Bd.,
.
. Respondent's Answer Brief at p. 6.
.
. In re T.H., supra, and State ex rel. Oklahoma Dept. of Health v. Robertson, supra, at note 7 supra.
. Multiple Injury Trust Fund v. Wade,
. Red Slipper Club, Inc. v. City of Oklahoma City,
. Veterans of Foreign Wars v. Childers,
. State ex rel. Wright v. Oklahoma Corp. Com'n,
. See, eg., Carmichael v. Southern Coal & Coke Co.,
. The general principle that a legislature may use a police power to create or destroy workers' compensation rights and remedies may not be successfully used to necessarily show constitutionality of a particular workers' compensation statute. The attribute of a constitutional exercise of police powers that is applied to a legislature creating workers' compensation laws in general may not be applied as a necessary attribute to a
. Reliance upor a generality to decide a legal issue has been long-recognized as insufficient legal analysis when application of a legal principle requires a greater degree of specificity. For example, Judge Posner, in commenting on Justice Holmes' dissent in Lochner v. New York,
. U.S. Const. Amendment 14, § 1 provides in pertinent part "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
, The Okla. Const, Article 2, § 7 provides: "No person shall be deprived of life, liberty, or property, without due process of law."
. See, eg., Turner v. City of Lawton,
. Presley v. Board of County Commissioners of Oklahoma County,
. - See, eg., In re Initiative Petition No. 349, State Question No. 642,
. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale LJ, 524, 569-575 (2005), explaining New York Central Railroad Co. v. White,
. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J, 524, 559-560 (2005). Another author characterizes the period of 1895 to 1936 as one where the U.S. Supreme Court "manipulated doctrines of constitutional law" against several then popular statutory reforms. Leonard W. Levy, Original Intent and the Framers' Constitution, 369 (1988). See also David E. Bernstein, Lochner Era Revision ism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 Geo, LJ. 1, 11 (2003) (arguing that there was not one Lo-chner era, but three, 1897-1911, 1911-1923, and 1923 to the mid-1930s.)
. U.S. v. Carolene Products, Co.,
. Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30),
. St. Joseph Abbey v. Castille,
. Robert G. McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 Sup.Ct.Rev. 34, 55 ("From the first the modern Court has been troubled by a recurring problem: how does the dichotomy stand up when economic matters and personal rights are involved in a single government action?").
. An assertion that a legislature has the power to create and abolish workers' compensation actions as well as common-law actions generally, and that such power is sufficient to decide the issues in this controversy is the type of argument condemned more than fifty years ago by the U.S. Supreme Court as a "facile generalization" that obscures the issue to be decided. See the discussion herein of Wieman v. Updegraff,
. See, eg., Daniel J. Crooks, III, Toward "Liber ty": How the Marriage of Substantive Due Process and Equal Protection in Lawrence and Windsor Sets the Stage for the Inevitable Loving of Our Time, 8 Charleston L. Rev, 223, 238 (Winter 2013-2014) citing Randy E. Barnett, The Proper Scope of the Police Power, 79 Notre Dame L. Rev. 429, 484 (2004), and Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (1866) ("Following in the natural law tradition of John Locke and the vast majority of the framers of the Constitution and Bill of Rights, as well as the framers of the Fourteenth Amendment, Cooley understood the concept of 'due process of law' to entail a substantive component that existed to provide a check on the states' police powers. To Cooley, this substantive nature safeguarded individuals' natural rights from unwarranted intrusion by the state.... 'Just as it is proper to prohibit wrongful or rights-violating conduct, proper police power regulations specify the manner in which persons may exercise their liberties so as to prevent them from accidentally interfering with the rights of others." ").
. Northeast Oklahoma Elec. Coop., Inc. v. State ex rel. Corp. Com'n,
. McConnell v. Town Clerk of Tipton, 1985 OK. 61,
For a discussion of the quasi-legislative function of an administrative rule see Waste Connections, Inc. v. Oklahoma Dept. of Environmental Quality,
. Jacobs Ranch, LLC. v. Smith,
. Edmondson v. Pearce,
. See, eg., Timothy Sandefur, In Defense of Substantive Due Process, or the Promise of Lawful Rule, 35 Harv, J. L. & Pub, Pol'y 283, 323 (2012) ("To put this in modern parlance; So long as courts must decide whether a law is rationally related to a legitimate government interest, they cannot hope to avoid determining what is and is not a legitimate government interest."),
. See, eg., Federal Land Bank of Wichita v. Story,
. See, eg., Ashira Pelman Ostrow, Judicial Review of Local Land Use Decisions: Lesson from RLUIPA, 31 Harv, J. L, & Pub. Pol'y 717, n.56, 731 (2008) ("In the post-Lockhner era, courts are particularly wary of substituting their judgment for that of the community's elected representa
. In Lochner, the Court initially recognized the State's interest in protecting the health and safety of the public, but then the Court independently reviewed the State's justification for the legislation (although majority denied that it was simply substituting its judgment for that of the legislature). Lochner v. New York,
. See, eg., Kimberly N. Brown, "We the People," Constitutional Accountability, and Outsourcing Government, 88 Ind, L. J. 1347, n.210, 1376 (2013) ("The [Supreme] Court has required that an asserted government interest serves the public good, rather than merely private interests or biases, in order to qualify as 'legitimate' under the rational basis test."), citing City of Cleburne v. Cleburne Living Ctr., Inc.,
. Nollan v. Cal. Coastal Comm'n,
. See, eg., Jacobs Ranch, L.L.C. v. Smith,
. Shepard v. Oklahoma Dept. of Corrections,
. Indian Territory Illuminating Oil v. Davis,
. The Oklahoma penal code states workers' compensation fraud is punishable as a felony. 21 0.S.2011 §§ 1, 2, 1663. Workers' compensation. fraud is prohibited by the Administrative Workers' Compensation Act: "Any person or entity who makes any material false statement or representation, who willfully and knowingly omits or conceals any material information, or who employs any device, scheme, or artifice, or who aids and abets any person, for the purpose of: (1) obtaining any benefit or payment, (2) increasing any claim for benefit or payment, or (3) obtaining workers' compensation coverage under this act, shall be guilty of a felony punishable pursuant to Section 1663 of Title 21 of the : Oklahoma Statutes." 85A O.S.Supp. 2015 § 6(A)(1).
. The Due Process Section of the Oklahoma Constitution also has an equal protection component. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City,
The Due Process Clause of the Fifth Amendment to the U.S. Constitution also includes an equal protection element. See, eg., Johnson v. Robison,
.
, See, eg., Developments in the Law-The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1473 (1982) ("Almost any substantive due process claim may be translated into an equal protection claim merely by pointing to some other group not subject to the challenged regulation. If a regulation does not serve a legitimate purpose-and so violates substantive due process-applying it to one group and not to another violates the equal protection requirement that a legitimate state purpose support a given classification.") (citations omitted).
. Minnesota v. Clover Leaf Creamery Co.,
. An underinclusive statute may demonstrate the absence of a compelling state interest required for a state's justification when restricting a fundamental right. See, eg., Justice Kennedy's opinion for the Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
. Vance v. Bradley,
. Board of Regents v. Updegraff,
. Board of Regents v. Updegraff,
. Wieman v. Updegraff,
, Englebrecht v. Day,
. Adwon v. Retail Grocers Ass'n,
For a short note on legal challenges to Oklahoma's Unfair Sales Act, see So-Lo Oil Co., Inc. v. Total Petroleum,
. Davis Oil Co. v. Cloud,
. In Davis Oil Co., the majority opinion classified the Surface Damages Act (52 O.S.Supp. 1982 §§ 318.2 through 318.9) as the removal of a common-law defense while the dissenting opinion viewed the Act as shifting a contractual property right from one contracting party to another when the Act was applied retroactively to a mineral lease that had been created prior to the effective date of the Act. Compare Davis Oil,
. Davis Oil Co.,
.
. 538 U.S, 408, 123 §.Ct 1513,
. BMW of North America v. Gore,
. BMW of North America v. Gore,
. BMW, supra, and State Farm Mut. Auto. Ins. Co., supra. See also Flemming v. Nestor,
. Jimenez v. Weinberger,
. Jimenez,
. Jimenez,
. Jimenez,
. Jimenez,
. Mathews v. Lucas,
. See, eg., Murillo v. Bambrick,
. Jimenez v. Weinberger,
. See, eg., 85A O.S.Supp. 2013 § 35 (A)(1): ''Every employer shall secure compensation as provided under this act to its employees for com-pensable injuries without regard to fault."
.
. Weber,
. Employer's argument is that a legislative body may constitutionally prohibit one class of people from exercising a right (injured workers filing nonfraudulent claims) because another group of people abuse that right (workers filing fraudulent claims). Workers' compensation fraud is punishable as a criminal felony in Oklahoma. 21 ©.S.2011 § 1663. The issue of if, or when,, a legislative body may constitutionally stop one group of people from exercising a right granted or recognized by law and prohibiting their innocent conduct because another group of people engage in criminal activity is an issue which arises frequently in various political debates involving issues beyond the scope of workers' compensation jurisprudence. We need not. decide the issue today. -
. - In District Court common-law actions fraud is "never presumed, but must be affirmatively alleged and proven by the party who relies on it, and cannot be inferred from facts which may be consistent with honesty of purpose." Albert & Harlow, Inc. v. Fitzgerald,
. Jay M. Feinman, The Jurisprudence of Classification, 41 Stan. L. Rev. 661, 664 (1980).
. We construe the reliance upon § 5 by respondent and amicus curiae as an effort to show the rationality of § 2(14). While we conclude an unconstitutional application of § 2(14) occurred, we make no conclusion or holding on the constitutionality of § 5 due to our disposition of this appeal. See opinion part VL The Grand Bargain, herein.
, See the discussion of the grand bargain in note 6, supra, and its accompanying text,
, Matthew J, Kane, The Need for Reform in Our Employers Liability Laws, 20 Yale LJ. 353, 356 (1911).
. Parret v. UNICCO Service Co.,
. See, eg., State ex rel. Wright v. Oklahoma Corp. Com'n,
. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co.,
. This was recognized early in the history of our State, by R. L, 1910, 4642 (12 O.S.2011 § 2);
The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma, but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.
. For example, we need not address whether Okla. Const. Art. 2 § 7 protects unenumerated rights derived from the nature of liberty, or the proper analysis for determining the nature of State constitutional rights, or the nature and scope of a party's burden to create a factual record sufficient to support such an inquiry, or any other legal issue involved with such inquiry. But see, generally, Joshua D. Hawley, The Intellectual Origins of (Modern) Substantive Due Process, 93 Tex, L. Rev. 275, 280-281 (2014) (arguing that modern substantive due process should be conceptualized as a doctrine of unenumerated rights derived from the nature of liberty), and compare Draper v. State,
. Okla. Const. Art, 2 § 6: The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.
. Guardianship of Berry,
. A workers' compensation proceeding'is a statutory public-law proceeding (not a private dispute) and when resolving a public-law question therein the Court may sua sponte choose the dispositive public-law theory. Yeatman v. Northern Oklahoma Resource Center of Enid,
. See note 18, supra, and the discussion explaining a party who challenges the constitutionality of a statute must have a legally cognizable interest which is threatened by application of that statute
. Non—Hohfeldian standing is when plaintiff sues to secure judicial relief that would benefit a public entity or the community as a whole, but Hohfeldian standing is when a plaintiff seeks to adjudicate his or her claimed right, privilege, immunity, or power with respect to another party. State ex rel. Oklahoma Bar Ass'n v. Mothershed,
Concurrence Opinion
concurring specially with whom WATT, J., joins.
T1 I concur in the majority's result that the arbitrary 180-day limitation on cumulative trauma injuries is unconstitutional, but write separately to explain how the provision also violates Article 2, Section 6 of the Oklahoma Constitution.
T 2 The Oklahoma Constitution guarantees that all courts "shall be open to every person, and a speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." © Okla. Const. art. 2, § 6. The constitutional provision embodies three distinct constitutional
T 3 The majority and the Attorney General emphasize the Legislature's police power and the Legislature's right in crafting a workers' compensation scheme. In intimating that the Legislature enjoys unfettered discretion in abolishing a claimant's right or benefit, the majority postulates that such authority is only curtailed (1) when the Legislature cere-ates an unconstitutional condition related to that right or benefit, (2) by the expressed Will of the People in the Oklahoma Constitution provisions prohibiting unreasonable and arbitrary legislation, and (8) other Oklahoma constitutional provisions addressing private rights and due process. See Op. at 126 & fas, 42-44. However, the majority's analysis is incomplete. The Legislature's police power is not absolute. In crafting a substitute remedy, the Legislature's police power is also limited by Article 2, Section 6 of the Oklahoma Constitution. When the Legislature taketh away all of an employee's work-related common law actions in tort and places such actions in the exclusive purview of the Administrative Act, that police power must also be curtailed by the industrial bargain's delicate balance. -
[ 4 I must again emphasize that the foundation of the Oklahoma workers' compensation scheme is the "Industrial Bargain" also known as the "Grand Bargain." Yet, I am constrained to repeat ad nauseam the underlying policies and purposes behind it. That system, as explained in Parret v. UNICCO Serv. Co., provides an expeditious, inexpensive means to compensate workers for injuries, disabilities, and deaths sustained in the course of their employment, without a determination of fault. See
1 5 Following the enactment of the AWCA, this Court has begun to see an influx of constitutional challenges to the Act. Although each case presents a unique set of issues, a common theme exists-the systematic erosion of the Industrial or Grand Bargain, This Court, fully aware of the rapid demise of the Grand Bargain, assured Oklahoma workers that we would address the Act's constitutionality, provision by provision, "as a case or controversy or a justiciable issue is presented to this Court." Coates v. Fallin,
1 6 Simply put, the Administrative Act abrogates an injured employee's bargained remedies, and at times, leaves the employee bereft of any legally cognizable recourse.
Concurrence Opinion
concurring specially, with whom WATT, J., joins.
{1 While I agree with the majority that the 180-day limitation provision in 85A 0.8. Supp. 2018 § 2(14) is unconstitutional as applied to. Petitioner on substantive due process grounds, I write separately to emphasize that it also amounts to a denial of equal protection under the law to Petitioner and those similarly situated, in violation of Okla. Const. art. 2, §§ 6&7.
[iIn testing the validity of a state statute that differentiates in its treatment of one group of individuals over other groups, a common test is applied when considering due process of law, equal protection of the laws, and special as distinguished from general laws: that is whether the classification forming the basis for the differentiation is arbitrary or capricious, and whether it bears a reasonable relation to the object to be considered.
Dean,
In that cause, because of its unique status and continuing problem with timely payment of awards due to lack of funds, this Court determined treating the Multiple Injury Trust Fund different from other workers compensation insurers satisfied the above-quoted standard. Dean,
18 In Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30),
[tlhe hardship Gladstone complains of is the arguable unfairness in treating governmental tort claimants who are covered by workers' compensation differently from persons without that coverage. The latter class not only may sue in tort to recover damages for the negligent acts of governmental tortfeasors but is also accorded access to collateral indemnity sources without losing the right to press a public tort claim. The critical question here is whether the classification in question rests upon a difference which bears a reasonable relationship to the goals of the GTCA.
Gladstone,
In Gladstone, this court determined that excluding liability under the GTCA for injuries covered by workers' compensation was rationally related to the legitimate state interest of protecting the public fise by eliminating public liability for injuries where a collateral source of indemnity was available.
14 The classification in the present cause, however, goes considerably further than the one this court analyzed in Gladstone. Title 85A 0.8. Supp. 2018 § 2(14) provides:
"Cumulative trauma" means an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and seope of employment. Cumulative trauma shall not mean fatigue, soreness or general aches and pain that may have been caused, aggravated, exacerbated or accelerated by the employee's course and seope of employment. - Cumulative trauma shall have resulted directly and independently of all other causes and the employee shall have completed at least one hundred eighty (180) days of continuous active employment with the employer;
Section 2(14) defines "cumulative trauma" in a particular manner; as an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment. It then, however, adds an arbitrary minimum employment period of 180 days. Two claimants may both
T5 Unlike in Gladstone, where the classification operated to bar public tort liability for individuals who had a collateral source of recovery, the exclusive remedy provision of the Administrative Workers' Compensation Act (AWCA), 85A 0.8. Supp. 2018 § 5 and the 180-day cutoff in 85A 0.8. Supp. 2018 § 2(14) create a classification that completely bars Petitioner and others in Petitioner's position from recovering for their injuries at all. 'In this regard, the 180-day line separating who may recover for potentially identical injuries on cumulative trauma grounds is not only arbitrary, but fundamentally unjust.
T6' Under the provisions of the AWCA, specifically 85A 0.8. Supp. 2018 § 2(14) and § 5, an entire class of injured employees that includes the Petitioner in this cause are left with no remedy at all, They are barred from recovering for cumulative trauma by 85A 0.8. Supp. 2018 § 2(14)s imposition of an arbitrary 180-day cutoff that has no. reasonable relation to the goals of the AWCA and they are barred from pursuing any tort claim by the exclusive remedy provision, 85A 0.8, Supp. 2018 § 5, This complete bar to recovery implicates the equal protection aspect of Okla. Const. art, 2, § 6 because a subset of injured workers is being denied all access to the courts to attain a remedy available to other injured workers, but denied to them. Barring both a common law tort claim and a workers' compensation claim, leaving claimants in Petitioner's position without any way to recover for their injury, is not reasonably related to the State's interest in preventing workers' compensation fraud,
T7 To facilitate workers' compensation and its objectives, what has often been called the grand (or industrial) bargain was struck: the employee gave up the right to bring a common law negligence action against the employer and in return received automatic guaranteed benefits, The employer gave up the common law defenses and received reduced exposure to liability, See Parret v. UNICCO Service Co.,
18 I do not dispute that the State has a legitimate interest in preventing workers' compensation fraud. I also agree with the majority's substantive due process analysis. However, I feel it necessary to further emphasize the injustice that has occurred here. The complete roadblock to any recovery for Petitioner's injury is impermissibly arbitrary and not reasonably related to the purposes of the AWCA.
, As the majority correctly points out, many claims alleging violations of substantive due process also support an equal protection claim, because Okla. Const. art. 2, § 7 has an equal protection component. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City,