Election of Remedies Under the Administrative Workers' Compensation Act

In Oklahoma, a worker’s rights to a remedy for on-the-job injuries are governed by the Administrative Workers’ Compensation Act (AWCA). Generally know as the “exclusive remedy”, the AWCA provides the sole legal remedy when injuries are caused by mere negligence, regardless of who is at fault. But if a worker is injured due to a willful, deliberate act, or with specific intent by the employer to cause the injury the employee has an election based on an intentional tort theory of recovery. In such cases the injured worker has the option of seeking damages in the district court, thus forgoing the exclusive remedy provided by the AWCA. When an injured worker chooses to file a lawsuit in a district court, can they maintain a claim in the Workers’ Compensation Court at the same time? Per the recent decision in KPiele-Poda v. Petterson-Uti Energy, etal., the answer is “no.”

In Petterson, etal., the claimant sustained a crush injury to both legs while repairing a conveyor at a well-site, an injury which he asserts was substantially certain to occur as the conveyor continued to operate while he was repairing it. Claimant initially filed a CC-Form-3 in the Workers’ Compensation Commission (Commission), receiving both medical treatment and temporary total disability (TTD) benefits from the employer/respondent, and just two days prior to the expiration of the Statute of Limitations, he also filed a lawsuit in the Oklahoma County District Court seeking damages for his injuries. The lawsuit alleged that the at fault party, “ordered, encouraged, allowed, or otherwise caused” Plaintiff to repair the conveyor with the “knowledge that injury and/or death was substantially certain to occur, not merely foreseeable or substantially likely. The employer moved to dismiss the lawsuit arguing that the plain language of the AWCA precludes an employee from maintaining an action in the both Commission and the district court simultaneously. The Oklahoma County District Court agreed, and dismissed the intentional tort action. The claimant/plaintiff then appealed to the Oklahoma Supreme Court (Supreme Court), which addressed the question of whether both actions can be pursued at once.

In the resulting opinion, the Supreme Court cited 85A Section 5(I), which provides: “If the employer has failed to secure the payment of compensation as provided in this act or in the case of an intentional tort, the injured employee or his legal representative may maintain an action either before the commission or in the district court, but not both.” Reviewing this statutory section, the Supreme Court looked for the plain meaning of the statute, as it is “presumed that the Legislature has expressed its intent in a statute’s language and that it intended what it so expressed…[and] only where legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity, are rules of statutory interpretation employed.” Odom v. Penske Truck Leasing Co., 415 P.3d 521. Finding no ambiguity in the statutory language, the Court held that when the injured employee filed his CC-Form-3 in the Commission, he had invoked its jurisdiction and thus elected his remedy. Filing the separate action in the district court was, per the Supreme Court, violative of the plain text of Section 5(I), and he “is not entitled to maintain an action simultaneously before the Commission and in the district court.” Accordingly, the district court’s dismissal of the “substantial certainty" lawsuit was affirmed.

Justice Noma Gurich wrote a dissenting opinion which considered the majority opinion to be “too restrictive.” Noting that the intent of 85A Section 5(I) was to prevent a claimant from receiving a double recovery from the same accident, she pointed out that “[u]ntil there is a finalized recovery, however, there can be no double dipping. This is because a claimant has not received a remedy until a final order is entered. Therefore, she believes that Section 5(I) should “allow the injured employee to preserve inconsistent remedies, but not allow recovery from both.”

As a post-script, a lawsuit against the manufacturer of the conveyor device under the theory of product liability is still ongoing at this time.