Glasco v. State ex rel. Oklahoma Department of Corrections

OPALA, J.,

dissenting.

11 The critical subject for our inquiry today is whether the terms of 74 O.8.Supp. 2002 § 840-2.21(D), 1 which remove state employees from the Workers' Compensation Act's (WCA) protection from discharge pending temporary total disability (TTD), 2 conform to the state fundamental law's interdiction of disuniform laws on prohibited sub-jects. 3 I would answer this question in the negative.

I

THE LEGISLATURE HAS IMPERMISSI-BLY DICHOTOMIZED INTO SUBCLASSES A SINGLE CLASS OF WORKERS COVERED BY THE WCA AND HAS VARIED THE LEGAL EFFECT OF TTD AWARDS DUE ONE OF THE PROTECTED SUBCLASSES IN VIOLATION OF STATE FUNDAMENTAL LAW

A.

Art. 5 § 46, Okl. Const. Analysis

1 2 Nonuniform laws that vary the enforcement of or effect upon judgments are plainly, absolutely and unequivocally interdicted by *191 the command of Art. 5 § 46, Okl. Const. 4 An order of the Workers' Compensation Court is a judgment within the meaning of § 46 because by specific legislative prescription the order is enforceable as a judgment. 5 Legislation that creates differences in the enforceement or effect of a compensation award violates the § 46 uniformity mandate.

B.

The Terms Of 74 O.8.Supp.2002 § 840-2.21(D) Violate The Constitutional Proscription Against Special Laws That Vary The Enforcement Or Legal Effect Of Judgments

T3 The terms of 85 0.8.S8upp.2005 § 5(B) protect all employees from discharge while receiving TTD benefits. 6 In Upton v. State ex rel. Oklahoma Dept. Of Corrections 7 the court harmonized the provisions of § 5(B) with the conflicting provisions of § 840-221(D) 8 of the Oklahoma Personnel Act. The latter allowed the discharge of state employees whose period of TTD extends beyond one year. By Upton state employees were afforded the same protection from discharge that is accorded other employees receiving TTD benefits under the WCA. 9

T4 The statute with whose infirmity we must deal here is the post-Upton amendment of § 840-2.21(D) 10 which explicitly makes the impact of a TTD award different in its legal effect upon state employees from that which it has upon TTD orders made in favor of other workers' compensation claimants. The amendment impermissibly dichotomizes a single class of workers' compensation claimants by dividing them into subclasses-one that is comprised of state employees who stand without the WCA's protection from discharge pending collection of TTD and the other subclass which is comprised of all other claimants receiving TTD benefits. The Legislature clearly has the power to exclude classes of employees from coverage by the WCA. 11 But as to all those employees who stand covered by the WCA, the Legislature is without power to vary the effect of a TTD award by excluding one group of claimants from the benefits that stand accorded other TTD recipients.

T5 In the case now before us a state correctional employee had been placed on leave without pay while receiving TTD benefits under an order of the Workers' Compensation Court. When his absence from work had exceeded one year his employment came to be terminated under the authority granted by 74 0.8.Supp.2002 $ 840-2.21(D), the provision that is patently fraught with a constitutional infirmity. The benefit of law that came to be withheld from the state employee injured on the job was that which would have preserved his employment status during the entire TTD period. In short, the statute which gives state employees reduced protection of their employment status while on TTD clearly offends the § 46 prohibition against special laws that deal with the enforcement of WCA judgments.

*192 SsUMMARY

T6 In sum, the terms of § 804-2.21(D), as amended in 2002, violate the § 46 mandated norms of uniformity. They target for disparate treatment less than a whole class which stands embraced within one of that section's prohibited subjects. This is so because the provisions vary the impact of a TTD award by giving persons other than state employees much greater job protection while drawing TTD benefits than that which is accorded in like cireumstances to claimants who are state employees.

17 I hence dissent from the court's pronouncement.

. The terms of 74 O0.S.Supp.2002 § $40-2.21(D) of the Oklahoma Personnel Act provide in pertinent part:

D. An employee on leave without pay pursuant to the provisions of this section shall have the right to be returned to his or her original position in accordance with rules promulgated by the Office of Personnel Management. If it is found necessary for the good of the state to fill the position during the period the employee is on leave without pay the employee filling the position shall vacate the position upon the return of the employee on leave without pay, subject to layoff, transfer or demotion rights earned under the Oklahoma Personnel Act and rules of the Office of Personnel Management. The right to return to the original position shall expire one (1) year from the date of the start of leave without pay. Notwithstanding the provisions of Section 1 et seq. of Title 85 of the Oklahoma Statutes, the employee may be separated in accordance with the Oklahoma Personnel Act and Merit Rules if the employee has not returned to the original position of the employee or some other position within the agency within one (1) year from the date of the start of leave without pay.

(emphasis added).

. The terms of 85 0.S.Supp.2005 § 5(B) provide:

B. No person, firm, partnership, corporation, or other entity may discharge any employee during a period of temporary total disability solely on the basis of absence from work.

. The terms of Art. 5 § 46, Okl. Const., provide in pertinent part:

The Legislature shall not ... special law ... pass any ...

*ot ik

... providing or changing the methods for ... the enforcement of judgments

(emphasis added).

. A subject that is listed in Art. 5 § 46, OkL Const., may not be disuniformly dealt with by any enactment. Reynolds v. Porter, 1988 OK 88 , 760 P.2d 816, 822 .

. 85 0.$.2001 § 42; Kuykendall v. Gulfstream Aerospace Technologies, 2002 OK 96 , 66 P.3d 374 ; Lee Way Motor Freight, Inc. v. Welch, 1988 OK 121 , 1 9, 764 P.2d 191, 195 .

. For the terms of 85 0.$.Supp.2005 § 5(B) see supra note 2; Upton v. State ex rel. Oklahoma Dept. of Corrections, 2000 OK 46, ¶ 8 , 9 P.3d 84, 87 .

. Upton v. State ex rel. Oklahoma Dept of Corrections, supra note 6 , 9 P.3d at 88 , at 1 12.

. The then-applicable version of the Oklahoma Personnel Act (74 0.S.8upp.1999 § 840-2.21(D)) provided that if a state employee has not returned to his/her original (or some other) agency position within a year from the commencement of leave without pay, the employee may be separated from employment in accordance with the Oklahoma Personnel Act and rules of the Office of Personnel Management. Its terms made no reference to the contrary provisions of the WCA, 85 0.$.2001 § 5(B).

. Upton v. State ex rel. Oklahoma Dept of Corrections, supra note 6 , at 1 12.

. For the pertinent text of the 2002 amendment see the highlighted portion of 74 0.$.Supp.2002 § 840-2.21(D), supra note 1.

. See e.g. the provisions of 85 0.$.2001 §§ 2.1-2.6, which exclude certain classes of persons from the purview of the WCA.