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On The Job Injuries

Third Party Cases & Civil Actions

EXCLUSIVE REMEDY OF OKLAHOMA WORKERS’ COMPENSATION ACT

EMPLOYER’S IMMUNITY FROM LAWSUITS PROVIDED BY THE OKLAHOMA WORKERS’ COMP LAW: The liability of an Oklahoma employer to pay benefits and the coverage provided to an injured Oklahoma City or Tulsa area employee by the Oklahoma Work Comp Court is exclusive and in place of all other liability of the employer and any of its employees, at common law or otherwise, for any injury or death to the employee, or his or her spouse, personal representative, or dependents of the injured Oklahoma City or Tulsa area employee, except for the following cases:

  • In the case of an intentional tort committed upon the injured worker by the employer &/or a coworker of the hurt employee. The Oklahoma Workmans Compensation Act specifically provides that an intentional tort shall exist only when the worker is injured as a result of willful, deliberate, specific intent of the employer to cause injury to the employee. A recent change in Oklahoma law severely limits this limited exception to the immunity provided to an employer under the Oklahoma Workmans Comp Law by mandating that any allegations or proof provided by the injured worker &/or his or her attorneys or lawyers that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort.
  • Where an employer has failed to obtain workmens compensation insurance to cover the payment of compensation and other benefits for its injured employee(s) as required by Oklahoma law. If an employer has failed to secure the payment of compensation for its injured employee(s), as provided by Oklahoma law, an injured Oklahoma City or Tulsa area employee, his or her attorney or lawyer, or his legal representatives if death results from the injury, may all maintain a civil action or lawsuit in the Federal or State District Courts of Oklahoma, for money damages on account of such injury, and in such action or lawsuit the uninsured employer may not plead or prove as a defense that the injury was caused by the negligence of a coworker of the injured employee, or that the hurt employee assumed the risk of his or her employment, or that the injury was due to the contributory negligence of the injured employee; provided:
  • The immunity created by Oklahoma law protecting employers against lawsuits from its employees does not extend to any action or lawsuit by an injured employee, his or her spouse, personal representative, or dependents of the employee, &/or any attorney or lawyer–against another employer, or its employees, on the same job site 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.
  • The immunity created by Oklahoma law protecting employers against lawsuits from its employees does not extend to any action or lawsuit against another employer, or its employees, on the same job site 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.

NOTE: If an employer has failed to obtain &/or provide workmens comp insurance to cover the payment of compensation and other benefits for its injured employee(s) as required by Oklahoma law; or in the case of an intentional tort described above–the injured employee, his or her attorneys or lawyers, or his legal representative may maintain an action either in the Oklahoma City or Tulsa Workers Compensation Courts or in the District Courts, but not both. In such case the injured worker &/or his or her attorney or lawyer must choose or elect which remedy to pursue, he or she cannot do both.

THIRD-PARTY CASES AGAINST THOSE OTHER THAN THE EMPLOYER

ACTIONS AGAINST THIRD PERSONS BY INJURED WORKERS ALSO DRAWING WORKERS COMP BENEFITS: If an injured Oklahoma City or Tulsa area worker otherwise entitled to compensation & benefits under the Oklahoma Work Comp Act is injured or killed by the negligence or wrong of another NOT IN THE SAME EMPLOYMENT of the injured employee, this injured worker &/or his or her attorneys or lawyers should, before any suit or claim under the Oklahoma Workmans Compensation Act, elect whether to take compensation under the Oklahoma Workmans Comp Act or to pursue his remedy against the negligent party causing his injury or damage. If the injured employee elects to take benefits and compensation under the Oklahoma Workmens Compensation Act, which in most cases he or she should, any case or cause of action against the persons or person causing the accident resulting in injury to the worker will be assigned to the employer &/or insurance company liable for the payment of such compensation and benefits. If, on the other hand, the injured employee &/or his or her attorneys or lawyers elects to proceed directly against the responsible or negligent person or insurance company, as the case may be, the employer’s insurance company shall contribute only the deficiency, if any, between the amount of the recovery against such other responsible person or party actually collected, and the compensation and benefits provided or estimated by the Oklahoma City or Tulsa Workmens Comp Court for such case.

SETTLEMENT OF THIRD-PARTY CASE AGAINST WRONGFUL PARTY

An injured employee receiving compensation and benefits under the Oklahoma Workers Compensation Act can engage in settlement negotiations and can settle his or her third-party lawsuit against a negligent or otherwise responsible party, other than his or her employer, under limited circumstances. In such cases the injured employee &/or his or her attorney or lawyer must follow strict protocol or risk losing his or her workers comp benefits. The rules differ depending on whether the injured employee receives full compensation for his or her injury or whether the settlement or recovery is in the nature of a compromise settlement. The rules are as follows:

  • COMPROMISE SETTLEMENT: Any compromise settlement (whether by lump-sum, cash or structured fashion) of any case or cause of action by the injured Oklahoma City or Tulsa area worker &/or his or her attorney or lawyer against a negligent or otherwise responsible party other than the injured workers’ employer, either: at an amount less than the compensation and benefits provided for by the Oklahoma Work Comp Act, or at an amount which is less than the full value or monetary amount of the injured worker’s damages–can be made only with the written approval of either the Oklahoma City or Tulsa Workmans Compensation Court. In the event that recovery is effected by compromise settlement, then in that event the case expenses, attorney fees and the balance of the recovery can be divided between the employer or insurance company having paid compensation and the employee or his representatives as they may agree. Provided, that in the event they are unable to agree, that the same shall be apportioned by the Oklahoma District Court having jurisdiction of the employee’s action or lawsuit against such other person, and in such manner as is just & reasonable
  • EMPLOYEE RECEIVING FULL COMPENSATION FOR LOSSES & DAMAGES: If a recovery or settlement (whether by lump-sum, cash or structured fashion) is made by the hurt Oklahoma City or Tulsa area worker &/or his or her attorney or lawyer against the negligent or otherwise responsible party or person without compromise settlement, i.e. a settlement which is both more than the amount of benefits and compensation provided for or estimated to be provided by the Oklahoma Workmans Comp Act & also provides the injured worker with full compensation for his or her losses and other damages –the employer &/or its insurance company having paid benefits & compensation under the Oklahoma Workmens Compensation Act is entitled to full and complete reimbursement and shall by law pay from its share of said reimbursement a proportionate share of the expenses, including attorney or lawyer fees, incurred in effecting said recovery &/or settlement–to be determined by the ratio that the amount of compensation &/or benefits paid by the employer bears to the amount of the recovery &/or settlement affected by the hurt employee & his or her attorney or lawyer. After the expenses and attorneys & lawyer fees have been paid, the balance of the recovery and settlement will be apportioned between the employer or insurance company having paid the compensation and the injured employee or his representative(s) in the same ratio that the amount of compensation paid by the employer bears to the total amount &/or settlement recovered.

NOTE: as in all cases, and as it should be: the balance of any settlement or recovery can be divided between the employer or insurance company having paid workers compensation and the injured employee, his attorney or lawyer, or his representatives, as they may agree.

THIRD-PARTY SUBROGATION RIGHTS ON DEATH CLAIMS

OKLAHOMA EMPLOYERS HAVE NO THIRD-PARTY SUBROGATION RIGHTS FOR MONEY PAID FOR WORKERS COMP DEATH BENEFITS. In Oklahoma an employer or its insurance company, attorney or lawyer, paying compensation & benefits on a workmens comp death case shall not have the right of subrogation to recover money paid by the employer or his insurance carrier for death claims or death benefits paid under an order, award, judgment or settlement made by either the Oklahoma City or Tulsa Work Comp Court from third persons. In such cases where either lump-sum or periodic weekly workmans compensation death benefits have been or will be paid to dependents–all common law rights against the third-party(ies) ultimately responsible for the worker’s death, other than the employer and his or her employees, are fully preserved and to be in those persons who would have had such rights had there been no death claim or death benefits awarded by either the Oklahoma City or Tulsa Workmans Comp Court. To be clear–nothing contained in the Oklahoma Workmens Compensation Act or law will allow an employer or insurance company for an employer to seek an interest in either the death benefits received by the employee or the employee’s beneficiary or in a life insurance policy procured by the employee.

OKLAHOMA EMPLOYERS HAVE THIRD-PARTY SUBROGATION RIGHTS FOR MONEY PAID FOR MEDICAL EXPENSES RELATED TO THE DECEASED WORKER’S LAST ILLNESS. The employer &/or his or her insurance company, attorney or lawyer, as the case may be, has the full right of subrogation to recover any money paid by the employer &/or his or her insurance company for the medical expenses for any medical treatment rendered to the deceased worker for and related to the last illness or accident paid, awarded or ordered by either the Oklahoma City or Tulsa Workmens Comp Court from any third persons ultimately responsible for the worker’s accident and death. However, even in this case with the employer &/or his or her insurance company and lawyer retaining subrogation rights for moneys paid for medical treatment related to the deceased worker’s last illness–all common law rights against other than the employer and his employees are still preserved and to be in those persons who would have had such rights had there been no benefits paid under the workers compensation act.