The opinion
KAUGER, J.,
with whom WATT, C.J., HODGES and EDMONDSON, J.J. join, dissenting:
T 1 The majority's failure to honor without overruling jurisprudence clearly signaling to the Legislature and employees that injured workers may reasonably expect fair dealing and putting workers' compensation insurers on notice that acting in bad faith may subject the insurer to tort damages is disingenuous. One can only assume that the majority's "general observation" concerning the status of this Court's jurisprudence as "obiter dictum" is itself in the category of language failing to constitute "a judicial decision or holding". I dissent for the reasons expressed in Kuykendall v. Gulfstream Aerospace Tech., 2002 OK 96 , 66 P.3d 374, 379-89 .
[ 2 The concurree's suggestion on a reconsideration of attorney fees is nothing new nor is it an explanation for vacillation. Although the alteration in vote in today's cause is described as a "reconsideration" following Kuykendall, supra, it is at best a perilous shift which recognizes that the remedies for post-award misconduct or delay are "imper-feet" 1 -but fails to acknowledge that, in practicality, they may be non-existent because of the price of instituting recovery. The best example of this occurs in the facts of Kuykendall, supra, which the dissenting opinion set forth:
"Under the facts presented, the majority has effectively left the employee with no *1092 satisfaction. The employee did attempt to get the employer's self-insured status suspended or revoked. The record is unclear why the request was denied, but it is undisputed that it was. Also, with only $1,317.89 left unpaid, it is doubtful that the employee could even afford to hire an attorney to pursue enforcement of the judgment-to do so would most certainly cost more than the benefits and interest he might eventually be awarded. There is absolutely no reason to believe that the employer would be any more likely to respond to the district court's order than he is to those of the Workers' Compensation Court. Even with an enforceable judgment, the employee would most likely come away empty handed and with an attorneys' fee to pay." 2
The remedies available to the employee are the same under the facts of this cause as those faced by the employee in Kuykendall, supra-nothing has changed.
18 The dissenting opinion in Kuykendall, supra, recognized that the Legislature had not acted to expressly eliminate the possibility of a post-award bad faith action in the workers' compensation setting despite the benefit of numerous rulings of this Court indicating that such a cause of action might well lie in post-award situations. 3
4 The concurree's suggestion that recognition of a post-award bad faith cause of action would "disrupt the delicate balance of created employer and employee interests now embodied" in the Workers' Compensation Act is likewise unconvincing. It is no more appropriate today for us to engage in judicial legislation than it was when Kuyken-dall, supra, was under consideration. This Court has specifically recognized, that in the area of workers' compensation law, we may not interfere with the wisdom or the policy of legislation. 4 In addition, we leave to the Legislature, the consideration of a statute's propriety, desirability, wisdom or practicability. 5 Finally, this Court lacks the power to act as a super-legislature by re-writing legislative enactments to conform with its views of public policy 6 -a power the majority and concurring opinion take on themselves-a function I would leave within the auspices of the Legislature.
. DeAnda v. AIU Ins. & AIG Claim Servs., Inc., 2004 OK 54, ¶ 6 , 98 P.3d 1080 (Boudreau, J. concurring.).
. Kuykendall v. Gulfstream Aerospace Techs., 2002 OK 96, 136 , 66 P.3d 374 (Kauger, J., with whom Watt, V.C.J., Hodges and Boudreau, JJ., joined, dissenting.).
. Kuykendall v. Gulfstream Aerospace Techs., see note 2 at 142, supra (Kauger, J., with whom Wait, V.C.J., Hodges and Boudreau, JJ., joined, dissenting.).
. Rivas v. Parkland Manor, 2000 OK 68, ¶ 15 , 12 P.3d 452 (Boudreau, J. for the majority.).
. In re Harris, 2002 OK 35, ¶ 23 , 49 P.3d 710 (Boudreau, J. for the majority.).
. Comer v. Preferred Risk Mut. Ins. Co., 1999 OK 86, ¶ 12 , 991 P.2d 1006 ; City of Hugo v. State ex rel. Public Employees Relations Bd., 1994 OK 134, ¶ 23 , 886 P.2d 485 ; Toxic Waste Impact Group, Inc. v. Leavitt, 1988 OK. 20, 110, 755 P.2d 626 .