The Oklahoma Bar Journal May 2023

need for a more comprehensive statutory scheme. When David L. Boren was elected governor in 1974, he created a committee of legislators, business leaders and worker advocates to survey other states’ recent reforms. 16 After much debate and compromise, the Workers’ Compensation Act was passed by the 1977 Legislature. 17 A veteran news paper reporter said the act was passed “after some of the longest legislative studies and conflicts in recent years.” 18 The new law reversed the troublesome “hazardous occu pation” requirement and placed most workers in the state, except for agricultural and domestic work ers, under coverage for benefits. A new Workers’ Compensation Court was created. Its members would be appointed by the governor from a list provided by the Judicial Nominating Commission. Gov. Boren appointed Marian Opala, administrative director of the state court system, as presid ing judge of the Industrial Court to make smooth the transition to the new court. 19 In the 1980s and 1990s, there was a period of relative calm and stability. There were predictable ups and downs in the size of awards, depending upon whom the sitting governor appointed as judges. There was still a contin uous effort to close loopholes or add components such as medi ation and providing counselors to assist injured workers. In the 33 years from 1977 to 2010, the Legislature passed 19 changes to the Workers’ Compensation Act. Countless unsuccessful bills were presented because someone was unhappy with the result of a single case or line of cases. 20

activity. The “scope of employ ment” meant the accident must be due to the employment and must result from a risk reasonably inci dent to the employment. 14 In 2000, Justice Yvonne Kauger explained the concept of an injury arising out of employment in the case of Turner v. B Sew Inn: 15 To meet the “arising out of” test, it must appear to the ratio nal mind, upon considering all the circumstances, that a causal connection exists between the In the first 55 years of the Oklahoma workers’ compensa tion law, from 1915 to 1970, there were complaints that the “haz ardous employment” doctrine was unfair because injuries to schoolteachers, retail workers and most government workers were not compensable. Legislators, employers and representatives of injured workers recognized the conditions under which the work is to be performed and the resulting injury. ... A NEW DIRECTION

Employers’ immunity from tort claims was recognized for decades after the 1977 reform, except for an occasional deviation regarding an intentional tort. In 2005, the Supreme Court dealt a blow to the blanket exclusive remedy for employers in the case of Parret v. UNICCO Service Company. 21 The court adopted the “substantial certainty” standard, which meant that the narrow intentional tort exception to workers’ compensa tion exclusivity was available to an injured worker if the acci dent or death was substantially certain to occur. 22 Since Parret, the Legislature has attempted to eliminate most intentional torts. The appellate courts have weighed in on the subject, but it remains uncertain whether or not some intentional torts in a direct action in district court against the employer remain viable. Another subject of reform in the early years of the current cen tury regarded the rigid rule that allowed compensability of a men tal injury only when accompanied by a physical injury. Occasionally, the rule resulted in a harsh deci sion. In Fenwick v. Oklahoma State Penitentiary, 23 benefits were denied to an employee of the state prison who was held hostage during a disturbance. He was released without physical injury but sus tained a serious psychiatric injury. All agreed he was disabled, but the Supreme Court followed the statute. After other similar deci sions, the Legislature eventually made an exception for mental-only injuries when an injury resulted from a rape or another crime of violence that arose out of and in the course of employment. 24

After 55 years of the confusing “hazardous employment” requirement for workers’ compensation, 1975 Gov. David L. Boren, pictured above, put together a committee to reform the law. In 1977, the Workers’ Compensation Act was passed. Courtesy Oklahoma Historical Society.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL