Tag Archives: law

POW…ell: Another Substantive Declaration

I complained about the Oklahoma Supreme Court issuing an opinion declaring the standard of review a “substantive right” without explanation here. The Court recently came out with another Workers’ Compensation opinion which declares a different provision substantive, but it does offer a little bit more explanation: 

“We find that 85 O.S. 2011 § 329(B), which allows the trial court to appoint an IME at any time, is a substantive change in the law that only applies to injuries occurring on or after August 26, 2011, the effective date of the statute….


[T]he only question before this Court is whether the statute affects the substantive rights of the parties. That is, does the statute increase or diminish the amount of recoverable compensation or alter the elements of the claim or defense by imposition of new conditions? Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 15, 78 P.3d 542, 548. If the answer to that question is yes, then our case law mandates prospective application of the law regardless of the statutory language. Ellis, 2006 OK 81, ¶ 13, 148 P.3d at 877 (citing Cole, 2003 OK 81, ¶ 8, 78 P.3d at 546).


In Ellis, 2006 OK 81, ¶ 1, 148 P.3d at 875, the 2001 amendment at issue imposed liability on the last of successive employers to expose a claimant to cumulative trauma. Id. ¶ 7, 148 P.3d at 876. Before the 2001 amendment, the law allowed apportionment of liability between successive insurers in cumulative trauma cases. Id. In that case we held that the right to compensation and the obligation to pay such benefits became vested and fixed by law at the time of the claimant’s injury and such rights could not be affected by after-enacted legislation. Id. ¶ 14, 148 P.3d at 877.


Like in Ellis, the language in § 329 substantively alters the rights of the parties because it requires employers to pay for medical services in circumstances not previously recognized, namely, before compensability has been determined. 85 O.S. 2011 § 329(B) only applies to injuries occurring on or after August 26, 2011, the statute’s effective date, even though the statutory language directs otherwise. See Williams Co. v. Dunkelgod, 2012 OK 96, ¶ 18, ___P.3d___ (determining that the Legislature’s use of the language “regardless of the date of injury” is meaningless if such language substantively alters the rights of one or both parties).”

Hillcrest Medical Center v. Powell, 2013 OK 1, prgs. 0, 8-10. So, one possible standard for substantive changes is whether the new statute requires the employer to “pay for medical services in circumstances not previously recognized, namely before compensability is determined.” It is my experience that employers and insurance companies have always frequently paid for Independent Medical Examiners prior to compensability determination, sometimes by agreement and sometimes by Order of the Court. But, my experience is limited, and I have not done any research on that point…I could be mistaken. At least now we know a little bit more about the Court’s view on the procedural/substantive distinction.



This is the first of what I hope will be a growing number of posts on this site: brief analysis on current points of law. The topic in question here is the retrospective application of newly enacted statutes to cases begun prior to the effective date of those statutes. The jurisdiction is Oklahoma.

The Supreme Court of Oklahoma, in an as-yet-unpublished opinion (Williams Companies Inc. v. Dunkelgood, 2012 OK 96), held that applying 85 O.S. sec. 340(D) (eff. 8/26/11) to a case accruing before the effective date “would allow the unconstitutional abrogation of an accrued right.” Williams Companies Inc., 2012 OK 96, par. 18. The accrued right at issue is the standard of review. The Court explained that “[g]enerally, a statute or its amendments will have only prospective effect unless it clearly provides otherwise.” Id. But the Court ignores the explicit language in 85 O.S. sec. 340(D), which renders the provision applicable “regardless of the date of injury.” If that language does not “clearly provide otherwise,” I’m not sure what does.

The Court explains “the standard of review…is determined as of the date of injury and is a substantive right which remains unaffected by later-enacted legislation, despite statutory language to the contrary.” Williams Companies Inc., 2012 OK 96, par. 18. The Court proclaims the standard of review a substantive right without explaining why this might be so. Moreover, the Court appears to have ignored relevant case law on this account: “Because section 3.6(C) is an amendment ‘in the nature of a directive’ to the appellate courts rather than an amendment affecting ‘the substance’ of a workers’ compensation claim, we find it is a change in the ‘mode of procedure’ subject to retrospective application.'” Mobile Mini, Inc. v. Dugger, 2011 OK CIV APP 31, par. 25. Mobile Mini is a Court of Appeals case and is not bindingly precedential, but it is persuasive and directly on point.  It is also directly contradicted by the Williams Companies opinion and to my mind WiIliams Companies ought to explicitly overrule it.

Could it be that no one brought Mobile Mini to the Court’s attention? It seems doubtful, but Williams Companies cites plenary other case law on the subject of retrospective application of workers’ compensation statutes (in Oklahoma we reform workers’ compensation a lot–something like five comprehensive overhauls in ten years). Why leave Mobile Mini out?

The procedural/substantive distinction is extremely significant in my line of work, where I argue for or against retrospective application of the most current statute every other day. I wish the Supreme Court of Oklahoma hadn’t played so fast and loose with declaring the standard of review “substantive.” I am virtually certain to be haunted by the lack of explanation here in the near future. I also wish the Supreme Court had tied up the loose end of Mobile Mini. It simply isn’t very persuasive to argue that a case has been overruled by not being mentioned when directly on point–but if it hasn’t been overruled, what is its status?

Career (first)

I’m an attorney. As of this writing, I’ve been licensed approximately a year and a half. Law is my passion and finding my career path will be a big part of this category. It will include posts about my struggles as well as my successes and probably more than a few mistakes as well. I hope that posting about the hard parts will help me improve professionally and keep my perspective healthy. Obviously no confidential information will be included.

While I sometimes feel like the only lawyer I know that actually wants to be one, law is not my only passion. I also love writing, in particular persuasive and/or analytical essays and poetry. Getting published is a goal and I hope these writings will spur me toward it.