MEEKS v. GUARANTEE INSURANCE COMPANY

WINCHESTER, J.,

dissenting:'

¶ 1 The administrative law judge used the appropriate statutory power to assure the insurer/employer paid what the WCC ordered. Without question the insurer/employer is required to pay that amount. As in this ease, the judge assessed a penalty and the amount ordered was paid, including the penalty. I would reinforce the principle that the judge has the contempt power to insure compliance with the judge’s orders. I depart from the majority in expanding “bad faith” to workers’ compensation proceedings.

¶2 I continue to hold my view as expressed in the dissent attached to Sizemore v. Continental Casualty Co., 2006 OK 36 , 142 P.3d 47 . In that ease I stated that I would hold consistently to the principal found in both Kuykendall v. Gulfstream Aerospace Technologies, 2002 OK 96 , 66 P.3d 374 , and Deanda v. AIU Insurance, 2004 OK 54 , 98 P.3d 1080 . Title 85 G.S.2001, § 42 1 provided the remedy for failure to pay under the terms of the award to the claimant. The exclusive remedies for wrongful delay in payment or refusal to pay, which is provided by the Workers’ Compensation statutes exclude common-law remedies.

*289 ¶ 3 The majority opinion continues to allow the providers of Workers Compensation benefits to be sued for bad faith.

In one of the two concurring opinions in Deanda , Justice Boudreau wrote:

“The Oklahoma Legislature designed our workers’ compensation system as a fast, efficient way to compensate employees for accidental on the job injuries. The workers’ compensation system is a comprehensive statutory scheme to fix compensation for, and provide medical care to, covered employees. Caffey v. Soloray, 2002 OK 82 , 57 P.3d 870, 874 . It is a quid pro quo between the employer/carrier and the employee. The employee gives up the right to sue in tort, gaining a certain remedy irrespective of fault. Id. In exchange, the employer avoids the high cost of litigation and possible excessive judgments. Upton v. State ex. rel. Dept. of Corrections, 2000 OK 46 , 9 P.3d 84, 87 .

“To implement this bargain, the Legislature established the workers’ compensation system as the exclusive remedy for employees who suffer accidental on the job injuries. Under the exclusive remedy doctrine, compensation benefits replace employers/carriers’ tort liability for work-related accidental injuries.”

Deanda, 2004 OK 54, ¶¶ 2-3 , 98 P.3d at 1090 (Boudreau, J. concurring).

¶ 4 In the other concurring opinion found in Deanda , Justice Opala opined:

“The very reason an employer’s and an insurer’s status-based and contract-based immunity from tort liability are coterminous stems, in part, from the equity’s principle of subrogation. Insurers, who are bound by an agreement that calls for the indemnification of the insured, agree to stand in the insured’s shoes and assume the sum total of the latter’s compensation responsibility. To hold that a workers’ compensation insurer’s immunity from tort liability is not coterminous with that of an insured employer’s own immunity would indeed abrogate the latter’s protection by removing the bargain’s very pedestal and toppling the essence of the tradeoff.” [Footnotes omitted.]

Deanda, 2004 OK 54, ¶ 5 , 98 P.3d at 1087 (Opala, J. concurring).

¶ 5 Justice Opala continued in a footnote with this observation:

“Exposing workers’ compensation carriers to delictual liability for bad faith would force insurers to hire lawyers to defend against a new class of litigation. Carriers would also have to assume the risk of losing eases and satisfying potentially large verdicts. This uncontemplated liability would be passed on to employers in the form of increased insurance premiums. The added costs to employers would in turn disrupt the equilibrium of costs and benefits that the Workers Compensation Act promised to maintain.”

Deanda, 2004 OK 54, n.11 , 98 P.3d at 1087, n. 11 (Opala, J, concurring).

¶ 6 The administrative law judge has been given the power of citing a carrier for contempt for noncompliance with a final judgment of the Commission when the carrier refuses to pay an uncontroverted medical or related expense. The Administrative Workers’ Compensation Act, Section 73 2 provides in pertinent part:

“If any person or party attending any proceeding before the Commission ... refuses to comply with any final judgment of an administrative law judge or the Commission or willfully refuses to pay an uncon-troverted medical or related expense within forty-five (45) days after the respondent has received the statement, the person or party, at the discretion of the administrative law judge or the Commission, may be found to be in contempt of the Commission and may be subject to a fine not to exceed Ten Thousand Dollars ($ 10,000.00).”

¶ 7 While I would encourage administrative law judges to use their contempt powers consistent with this statute, I would not find that the district court in the cause now before this Court erred in granting the insurer’s motion to dismiss. But “crafty gamesmanship” in willfully refusing to pay compensation as ordered by the administra- *290 five law judge can be remedied, not only by the penalty interest found in the workers’ compensation statutes, but also by a fine for contempt of up to $ 10,000.00.

¶ 8 Accordingly, I respectfully dissent.

. Title 85 O.S. 2001 , § 42(A), provided in pertinent part: "If payment of compensation or an installment payment of compensation due under the terms of an award ... is not made within ten (10) days after the same is due by the employer or insurance carrier liable therefor, the Court may order a certified copy of the aw.ard to be filed in the office of the court clerk of any county, which award whether accumulative or lump sum shall have the same force and be subject to the same law as judgments of the district court. Any compensation awarded and all payments thereof directed to be made by order of the Court, except in the case of an appeal of an award.... shall bear interest at the rate of eighteen percent (18%) per year from the date ordered paid by the Court until the date of satisfaction ... Upon the filing of the certified copy of the Court's award a writ of execution shall issue and process shall be executed and the cost thereof taxed, as in the case of writs of execution, on judgments of courts of record, as provided by Title 12 of the Oklahoma Statutes; provided, however, the provisions of this section relating to execution and process for the enforcement of awards shall be and are cumulative to other provisions now existing or which may hereafter be adopted relating to liens or enforcement of awards or claims for compensation.

. 2013 Okla.Sess.Laws, c. 208, § 73, eff. February 1, 2014.