Gibby v. Hobby Lobby Stores, Inc.

• Decision Date: 03 October 2017
• Docket Number: Case Number: 114065.
• Citation: 404 P.3d 44
• Parties: Brandon Michael GIBBY, Petitioner, v. HOBBY LOBBY STORES, INC., Indemnity Insurance Co. of North America, and the Workers' Compensation Commission, Respondents.
• Court: Oklahoma Supreme Court

404 P.3d 44

Brandon Michael GIBBY, Petitioner,

v.HOBBY LOBBY STORES, INC., Indemnity Insurance Co. of North America, and the Workers' Compensation Commission, Respondents.

Case Number: 114065.

Supreme Court of Oklahoma.

Decided: October 3, 2017

Bob Burke, Gary Prochaska, Oklahoma City, Oklahoma, for Petitioner.

James C. Ferguson, Bruce V. Winston, Walker, Ferguson & Ferguson, Oklahoma City, Oklahoma, for Respondents.

Sarah A. Greenwalt, Assistant Solicitor General, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma.

V. Glen Coffee, Denise K. Davick, Glen Coffee & Associates, Oklahoma City, Oklahoma, for amicus curiae, State Chamber of Commerce.

Mark E. Schell, Andrew E. Harding, Tulsa, Oklahoma, for amicus curiae, Unit Corporation.

COLBERT, J.

¶ 1 This appeal determines the constitutionality of section 57 of the Administrative Worker's Compensation Act (AWCA), found at title 85A of the Oklahoma Statutes. Following a review of the record on appeal, the transcripts of the proceedings below, and the briefs of the parties and amici, this Court holds the forfeiture provision found at section 57 of title 85A violates the adequate remedy provision of Article II, section 6, of the Oklahoma Constitution. The section 57 forfeiture provision is therefore stricken in its entirety.

FACTS AND PROCEDURAL HISTORY

¶ 2 Claimant, Brandon Michael Gibby, injured his right wrist and left knee on February 12, 2014, when he fell three to four feet from a pallet jack while in the course and scope of his employment. Employer, Hobby Lobby Stores, provided temporary total disability and medical benefits. However, when Claimant sought permanent partial disability, Employer asserted that the forfeiture provision, section 57 of the (AWCA) prohibited Claimant from receiving any further workers' compensation benefits because he had missed two or more scheduled medical appointments without a valid excuse or notice to his employer.

¶ 3 A trial was held at which Claimant attempted to demonstrate extraordinary circumstances for missing three scheduled medical appointments. The administrative law judge found none and denied the request for permanent partial disability despite the fact there was no dispute that Claimant's injury had left him disabled. The Workers' Compensation Commission affirmed. This Court retained this appeal to address the constitutionality of the forfeiture provision.

STANDARD OF REVIEW

¶ 4 Review of the constitutionality of a judgment, decision, or award of the Workers' Compensation Commission presents a question of law. See Coat e s v. Fallin, 2013 OK 108, 316 P.3d 924. See also Okla. Stat. tit. 85A, 78(C)(1) (Supp. 2013). Questions of law are reviewed de novo. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, 859 P.2d 1081.

ANALYSIS

Article II, Section 6

¶ 5 Article II, section 6, of the Oklahoma Constitution provides: "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." This provision "embodies three distinct constitutional guarantees: (1) access to the courts; (2) right-to-a-remedy for every wrong and every injury to person, property, or reputation; and (3) prohibition on the sale or denial of justice." Torres v. Seaboard Foods, LLC, 2016 OK 20, 373 P.3d 1057, 1081-82 (Colbert, J. concurring, 12). Claimant challenges the forfeiture of workers' compensation benefits provision found at section 57 of title 85A pursuant to the "right to a remedy" provision of Article II, section 6.

¶ 6 Section 57 provides:

A. If an injured employee misses two or more scheduled appointments for treatment, he or she shall no longer be eligible to receive benefits under this act, unless his or her absence was:

1. Caused by extraordinary circumstances beyond the employee's control as determined by the Commission; or

2. The employee gave the employer at least two (2) hours prior notice of the absence and had a valid excuse.

B. Inability to get transportation to or from the appointment shall not be considered extraordinary circumstances nor a valid excuse for the absence.

Okla. Stat. tit. 85A, 57 (Supp. 2013) (eff. Feb. 1, 2014). To properly understand the effect of Article II, section 6, on this forfeiture provision, the relation between the Oklahoma Constitution and the Grand Bargain must be appreciated.

¶ 7 Prior to Oklahoma's adoption of workers' compensation in 1915, a worker who was injured in an industrial accident was required to seek redress in the District Court by proving that the employer was negligent. This occurred at a time when a worker was the sole breadwinner. Most of the time, an injured worker who brought a claim for common law negligence would lose, resulting in destitution of the worker's entire family. To avoid destitution that resulted from the epidemic of industrial accidents occurring at the beginning of the twentieth century, combined with awards which were inadequate, inconsistent, and uncertain, an Industrial Bargain was legislatively imposed. It was later known as the Grand Bargain as workers' compensation was expanded to nonindustrial forms of employment.

¶ 8 Under the Bargain, the employee gave up his remedy of an action for negligence against his employer and received automatic guaranteed medical and wage benefits. The employer gave up the defenses of contributory negligence, the fellow servant doctrine, and assumption of risk. In return, the employer received reduced exposure to liability. Thus, workers' compensation was developed as a mechanism for providing medical care and wage benefits and placing the cost of these benefits on industry initially through insurance and ultimately on the consumer through the product or service it provided.

¶ 9 The first challenge to the constitutionality of Oklahoma's workers' compensation statutes came in Adams v. Iten Biscuit Co., 1917 OK 47, 63 Okla. 52, 162 P. 938. There, the question was limited to the "power upon the part of the Legislature to enact such [workers' compensation] legislation." Id., ¶17, 63 Okla. 52, 162 P. 938. The Legislature's power to do so was upheld under the police power and Article II, section 6. The Adams Court accepted the substitute remedy created by the Grand Bargain noting that the employee there "was deprived of no vested right, but the effect of the law was simply to change the common-law rule of liability for accidental injuries, and to substitute a new system of compensation." Id.¶14, 63 Okla. 52, 162 P. at 944. It further noted: "The [workers' compensation] act here in question takes away the cause of action on the one hand and the ground of defense on the other, and merges both in a statutory indemnity, fixed and certain." Id.¶15, 63 Okla. 52, 162 P. at 944 quoting State ex rel. Clausen, 65 Wash. 156, 117 P. 1101, 1119 (1911). Adams demonstrates that in order to pass constitutional muster under Article II, section 6, a workers' compensation provision must be measured against the delicate balancing of rights of employers and employees which constitutes the Grand Bargain. See Torres, 2016 OK 20, 373 P.3d 1057 (Colbert, J. concurring with whom Watt, J. joins).

¶ 10 The challenged provision forfeits all workers' compensation benefits when an injured worker misses two or more medical appointments without a determination of extraordinary circumstances by the commission or a valid excuse to the employer at least two hours prior to the appointment.¹ Under the statute, the inability of the injured worker "to get transportation to or from the appointment" is never an extraordinary circumstance or a valid excuse.

¶ 11 Section 57 lies far outside the parameters of the Grand Bargain upheld in Adams. In addition, it operates to forfeit existing vested rights to workers' compensation benefits² . CNA Ins. Co. v. Ellis, 2006 OK 81, ¶14, 148 P.3d 874, 877 ("The right to compensation and the obligation to pay such benefits becomes vested and fixed by law at the time of the claimant's injury."). The rights that vest on injury may not be destroyed except by due process of law. Adams, ¶10 (quoting Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916) ).

¶ 12 In addition, this Court must remain "mindful of this State's strong statutory policy (as well as that of the surviving common law) which disfavors both private and public law forfeitures." Hendrick v. Walters, 1993 OK 162, ¶7, 865 P.2d 1232, 1238-39 (emphasis and footnote omitted). Clearly the Legislature intended that a forfeiture take place when an injured worker misses two or more physician appointments under the statutory criteria articulated in section 57. There is no construction from which this Court could conclude otherwise.

¶ 13 The forfeiture provision tips the delicate balance achieved in the Grand Bargain too far in favor of employers and therefore it fails to provide an adequate substitute remedy to injured workers as required by the constitutional mandate of Article II, section 6. It "reinstates the concept of fault into a no-fault system and results in a forfeiture of benefits by the injured employee." Maxwell v. Sprint PCS, 2016 OK 41, ¶25, 369 P.3d 1079. Section 57 of Title 85A is unconstitutional and therefore it is stricken in its entirety.

¶ 14 With section 57 stricken, and therefore unavailable for application to missed physician appointments, the question becomes: Is there a provision that applies to this claim? Claimant argues that, if section 57 is unconstitutional, the exclusive remedy provision of section 5 of the AWCA should be lifted³ so that the worker may proceed in the District Court.

¶ 15 This Court need not address the worker's proposed remedy. There is another provision at section 50 of the AWCA which specifically deals with the issue of missed physician appointments:

If an employee fails to appear for a scheduled appointment with a physician, the

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