Braitsch v. City of Tulsa

Decision Date18 December 2018
Docket NumberCase Number: 116510
Citation436 P.3d 14
Parties Kelli BRAITSCH, Petitioner, v. CITY OF TULSA, Own Risk #10435 and The Workers' Compensation Commission, Respondents.
CourtOklahoma Supreme Court

Bob Burke, Oklahoma City, Oklahoma and Michael R. Green, Tulsa, Oklahoma, for Petitioner.

Brandy L. Inman, Latham, Wagner, Steele & Lehman, P.C., Tulsa, Oklahoma for Respondents.


¶ 1 The Petitioner, Kelli Braitsch, injured her1 right arm while employed by the City of Tulsa and after the effective date of the Administrative Workers' Compensation Act (AWCA), 85A O.S. §§ 1 - 125. Through her collective bargaining agreement, Braitsch was paid her full salary in lieu of temporary total disability (TTD) payments. She was later awarded permanent partial disability (PPD) benefits which were reduced by the amount her full salary payments were in excess of TTD benefits pursuant to 85A O.S. § 89. This section provides:

If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period. Any wages paid by the employer, over the statutory temporary disability maximum, shall be deducted from the permanent partial disability award. Such deduction shall be made after any such applicable attorney fee and any such assessment made pursuant to Sections 45 and 46 of this act have been paid.
85A O.S. § 89

Braitsch argued 85A O.S. § 89 denied her due process of the law and is an unconstitutional special law. The Administrative Law Judge denied the constitutional challenges and the Workers' Compensation Commission en banc affirmed the ALJ's decision. This appeal concerns only the asserted constitutional challenges.


¶ 2 An injured worker's right to workers' compensation benefits is determined by the law in effect on the date of the injury. Corbeil v. Emricks Van & Storage , 2017 OK 71, ¶ 9, 404 P.3d 856 ; Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, ¶¶ 14-18, 295 P.3d 1107. Braitsch's injury occurred after the effective date of the AWCA and therefore the AWCA controls her right to receive workers' compensation benefits. The issues raised on appeal concern the constitutional validity of 85A O.S. § 89. Issues of a statute's constitutional validity, construction, and application are questions of law subject to this Court's de novo review. Lee v. Bueno , 2016 OK 97, ¶ 16, 381 P.3d 736. A heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality and every presumption is to be indulged in favor of the constitutionality of a statute. Fent v. Oklahoma Capitol Improvement Authority, 1999 OK 64, ¶ 3, 984 P.2d 200. If two possible interpretations of a statute are possible, only one of which would render it unconstitutional, a court is bound to give the statute an interpretation that will render it constitutional, unless constitutional infirmity is shown beyond a reasonable doubt. Fent, 1999 OK 64 at ¶ 3, 984 P.2d 200 ; Gilbert Central Corp. v. State, 1986 OK 6, 716 P.2d 654. A court is bound to accept an interpretation that avoids constitutional doubt as to the legality of a legislative enactment. Id.

A. Braitsch Fails To Show 85A O.S. § 89And Its Application Violated Her Constitutional Right To Due Process.

¶ 3 Braitsch claims the provisions of 85A O.S. § 89 deny due process of law because it shifts the economic burden to the injured worker without a legitimate state interest and is an unconstitutional taking of property. The arguments found in Braitsch's brief in chief appear to claim she was denied both procedural due process and substantive due process rights.

1. Procedural Due Process:

¶ 4 The guaranty of due process of law can be found in both the State and Federal Constitutions. Article 2, Section 7 of the Oklahoma Constitution provides:

No person shall be deprived of life, liberty, or property, without due process of law.

Okla. Const. art. 2, § 7.

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides:

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.

U.S. Const. amend. XIV, § 1.

This Court utilizes a two prong test to determine whether an individual was denied procedural due process: 1) whether the individual possessed a protected interest to which due process protection applies; and 2) whether the individual was afforded an appropriate level of process. Hill v. American Medical Response , 2018 OK 57, ¶ 43, 423 P.3d 1119 ; In re Adoption of K.P.M.A., 2014 OK 85, ¶ 17, 341 P.3d 38 ; Thompson v. State ex rel. Bd. of Trustees of Okla. Pub. Employees Ret. Sys., 2011 OK 89, ¶ 16, 264 P.3d 1251.

¶ 5 Braitsch claims she has a protected interest in her collective bargaining agreement to receive full wages during the TTD period and she has a protected interest in her PPD award. She asserts the deduction to her PPD award for amounts paid above the TTD maximum, as required by 85A O.S. § 89, was an unconstitutional taking of property and violated her right to due process. This Court has previously ruled a PPD award is a property right worthy of due process protection. Maxwell v. Sprint PCS , 2016 OK 41, ¶ 18, 369 P.3d 1079. The record reflects Braitsch was paid her full wages during the TTD period therefore we find there was no taking of property promised under her collective bargaining agreement. Tr. July 19, 2017, p. 16, l. 24-25 through p. 17, l. 1.

¶ 6 The PPD award vested Braitsch with a property interest worthy of the protections of due process. The first prong of the test is satisfied. The ALJ's Order granting PPD was entered on August 15, 2017. This Order provided a PPD award that was reduced by $5,228.61, the amount paid to Braitsch above the TTD maximum. This PPD award was calculated by the statutes in place at the time of Braitsch's injury which included the above mentioned deduction pursuant to 85A O.S. § 89. This is not a case where PPD was awarded and then later reduced or taken away without a hearing. The core elements of procedural due process are notice and an opportunity to be heard. Baby F. v. Okla. County Dist. Court , 2015 OK 24, ¶ 15, 348 P.3d 1080. The Order reflects a hearing before the Administrative Law Judge was held on July 19, 2017, and Braitsch was represented by her attorney Michael R. Green. An administrative deprivation of a constitutionally protected property or liberty interest must be accomplished by an impartial and disinterested tribunal in an adjudicative process where the procedures employed are appropriate for the constitutional interest at stake. State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2013 OK 14, ¶ 43, 297 P.3d 378. Braitsch has not argued she received an unfair hearing or that the ALJ was partial. The record is clear that several hearings took place and Braitsch was represented by counsel. We hold Braitsch was afforded an appropriate level of process and find no evidence to support Braitsch's claim she incurred an unconstitutional taking of property without procedural due process.

2. Substantive Due Process:

¶ 7 Braitsch also appears to make a substantive due process argument in challenging the constitutionality of 85A O.S. § 89. Braitsch claims she was denied due process because this section of law shifts the economic burden upon an injured worker without a legitimate state interest. The substantive component of the due process clause bars certain governmental action despite the adequacy of procedural protections provided. Baby F. v. Okla. County Dist. Court , 2015 OK 24, ¶ 16, 348 P.3d 1080. In determining whether an action violates substantive rights, a balance must be struck between the right protected and the demands of society. In the Matter of the Adoption of J.R.M., 1995 OK 79, ¶ 13, 899 P.2d 1155. Substantive due process of law is the general requirement that all governmental actions have a fair and reasonable impact on the life, liberty, or property of the person affected. Arbitrary action is thus proscribed. City of Edmond v. Wakefield, 1975 OK 96, ¶ 5, 537 P.2d 1211, citing Griswold v. Connecticut, 381 U.S. 479, 511-12, 85 S.Ct. 1678, 1696-97, 14 L.Ed.2d 510, 513-32 n.4 (1965). In Torres v. Seaboard Foods, LLC, this Court noted that the analysis requires an adjudication of whether the legislation is rationally related to a legitimate government interest and if the challenged legislation reasonably advances that interest. 2016 OK 20, ¶ 27, 373 P.3d 1057. We explained:

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, or that workers' compensation laws, by themselves, have been considered by courts as a legitimate State interest since the compensation laws were first created. In our case today, we do not repeat Lochner's error of improperly rejecting an articulated economic interest of the State. We accept for the purpose of the arguments made herein, respondent's articulated State interest as legitimate in this case, i.e., the prevention of workers' compensation fraud and the decrease in an employer's costs as a result of legislative effort to prevent fraud.

Torres, 2016 OK 20 at ¶ 30, 373 P.3d 1057.

¶ 8 Respondent's brief explains the purpose of 85A O.S. § 89. The deduction from PPD of excess TTD benefits ensures fairness and predictability in the award of PPD benefits. By receiving her full wages during her temporary total disability period, Braitsch received more than what...

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