When Mr. Gibby sought permanent partial disability, Hobby Lobby asserted that the workers' compensation law's forfeiture provision, Section 57 of the Administrative Worker's Compensation Act (“AWCA”), found at Title 85A of the Oklahoma Statutes, prohibited Mr. Gibby from receiving any further workers' compensation benefits because he had missed two or more scheduled medical appointments without a valid excuse or notice to his employer.

A trial was held at which Mr. Gibby attempted to demonstrate extraordinary circumstances for missing three scheduled medical appointments. The administrative law judge found none and denied his request for permanent partial disability.

The Workers' Compensation Commission affirmed, and the issue of the constitutionality of the forfeiture provision reached the Oklahoma Supreme Court.

The Oklahoma Constitution 

Article II, Section 6, of the Oklahoma Constitution provides:

The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.

Oklahoma Law

Section 57 of the AWCA provides:

A. If an injured employee misses two or more scheduled appointments for treatment, he or she shall no longer be eligible to receive benefits under this act, unless his or her absence was:

1. Caused by extraordinary circumstances beyond the employee's control as determined by the Commission; or

2. The employee gave the employer at least two (2) hours prior notice of the absence and had a valid excuse.

B. Inability to get transportation to or from the appointment shall not be considered extraordinary circumstances nor a valid excuse for the absence.

Section 50(H)(12) of the AWCA provides:

If an employee fails to appear for a scheduled appointment with a physician, the employer or insurance company shall pay to the physician a reasonable charge, to be determined by the Commission, for the missed appointment. In the absence of a good-faith reason for missing the appointment, the Commission shall order the employee to reimburse the employer or insurance company for the charge.

The Oklahoma Supreme Court's Decision

The court reversed.

In its decision, the court ruled that Section 57 operated to “forfeit existing vested rights to workers' compensation benefits” and failed to provide an adequate substitute remedy to injured workers as required by the constitutional mandate of Article II, Section 6. In the court's opinion, Section 57 reinstated the concept of “fault into a no-fault system” and resulted in a “forfeiture of benefits” by the injured employee.

Section 57 of Title 85A, the court held, was “unconstitutional” and therefore it was “stricken in its entirety.”

The court concluded, therefore, that Section 50(H)(12) of the AWCA was the controlling provision of law concerning missed physician appointments.

The case is Gibby v. Hobby Lobby Stores, Inc., No. 114065 (Okla. Oct. 3, 2017). Attorneys involved include: Bob Burke, Gary Prochaska, Oklahoma City, Oklahoma, for Petitioner. James C. Ferguson, Bruce V. Winston, Walker, Ferguson & Ferguson, Oklahoma City, Oklahoma, for Respondents. Sarah A. Greenwalt, Assistant Solicitor General, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma. V. Glen Coffee, Denise K. Davick, Glen Coffee & Associates, Oklahoma City, Oklahoma, for amicus curiae, State Chamber of Commerce. Mark E. Schell, Andrew E. Harding, Tulsa, Oklahoma, for amicus curiae, Unit Corporation.