The one that got away: State Question 753 fades from the scene

By Patrick B. McGuigan

Published: 08-Sep-2010

NOTE: While the proposal analyzed here did not become one of the 11 statewide ballot questions facing voters in November, the story of the issue’s development and resolution (for now) is illustrative of the ways in which the politics of direct democracy can intersect with legislative deliberations, and vice versa. CapitolBeatOK has thus far examined nine of the ballot questions coming up. Still to come: State Questions 754 and 744.

Although the number of state questions on the November ballot is the largest seen in years, the list could have been longer.

One measure, State Question 753, was first sent to the ballot by the Legislature, and then withdrawn just before the end of this year’s legislative session.

State Question 753 would have allowed voters to amend the Oklahoma Constitution require Senate confirmation of any gubernatorial appointment to the Workers’ Compensation Court.

Currently, District Court judges are directly elected. Civil and Criminal Appeals Court and Supreme Court judges all appear on a retention ballot at the end of their appointed term. Oklahoma’s  Workers’ Compensation Court judges are the only ones who never appear on a ballot.
Without voter approval of the judges, supporters of the proposed constitutional amendment argued that the citizens needed another tool to hold workers’ compensation judges accountable.

Supporters said the confirmation process promoted through State Question 753 would have increased the system of checks and balances in state government. They argued that Senate confirmation would reduce the chance for politicization of the Workers’ Compensation Court by any future governor.

On the other hand, opponents said the measure would actually increase political influence, noting the partisan fights that often occur in the U.S. Senate when judicial nominees are considered for federal courts in that chamber.

 The issue was fought largely along partisan lines with Republicans being the chief promoters of the measure, and Democrats the leading critics of the idea.

House Joint Resolution 1041, by House Speaker Chris Benge, a Tulsa Republican, and state Sen. Clark Jolley, an Edmond Republican, sent State Question 753 to the ballot. It passed the Oklahoma House of Representatives 60-37 and passed the state Senate 26-22.

Gov. Brad Henry actually vetoed similar legislation (Senate Bill 609) before lawmakers chose to send the issue to the voters through House Joint Resolution 1041.

Ultimately, however, legislative leaders and Gov. Henry agreed to support a set of workers’ compensation reforms (which included Senate confirmation of workers’ compensation judges) and lawmakers voted to withdraw State Question 753 from the ballot.

At the end of the 2010 session, in the process that led to the referred proposal’s demise, lawmakers approved (and Henry signed) four bills supporters said would improve the state’s workers’ compensation system for injured workers while reducing costs for Oklahoma employers.

The reforms enacted included measures to 

·         Cap the Partial Payment Disability (PPD) rate at $323/week for five years

·         Limit Permanent Total Disability to 100 percent Social Security retirement age or 15 years, whichever is longer

·         Increase the power of the Physician Advisory Council and require the court to follow its recommendations unless there is clear and convincing evidence to the contrary

·         Reduce the number of Workers’ Compensation Court judges from ten to eight

·         Require five judges to be permanently assigned to Oklahoma City and three to Tulsa

·         State that the next two positions to become vacant after July 1, 2010, shall not be refilled

·         Restrict judges to one eight-year term

·         Allow a former judge to reapply after three years off the Court

·         Require current judges to go back through the Judicial Nominating Commission if they want to reapply

·         Require Senate confirmation on any Workers’ Compensation judge

·         Requires that any Workers’ Compensation judge to have not less than five years of workers’ compensation experience

·         Tighten up definitions of “major cause” and “objective medical evidence”

·         Require that the claimant shall be in attendance unless all parties agree, and all parties shall be represented during the entire mediation by a person with full settlement authority to settle any issue of the claim

·         Require all claims adjusters to have six hours of continuing education on Oklahoma’s workers’ compensation act as part of the required twenty-four hours of continuing education

·         Further define what is a work-related activity for purposes of being covered under the workers’ comp act

·         Clarify light-duty work and the employee’s refusal to participate

·         Set up a task force to look at vocational rehabilitation for injured workers

·         Unless recommended by the treating doctor at the time claimant reaches maximum medical improvement, Continuing Maintenance Medical shall not be awarded by the Workers’ Compensation Court unless there is clear and convincing evidence to the contrary

·         Tighten up benefits for soft tissue injuries

·         Provide for early mailing of a notice that will notify workers of free counseling services offered by the workers’ comp court

·         Define an intentional tort that will allow a lawsuit to be filed in district court rather than in workers’ comp court.

Advocates assert the workers’ compensation reforms enacted this year will save Oklahoma businesses at least $60.5 million.