Under the provisions of 85 O.S.Supp.2005, § 44(b), applicable on the date the deceased worker, a resident of Oklahoma, was killed in a work-related accident while working in Texas, neither the employer nor the carrier had the right of subrogation to recover money paid for death claims or death benefits under the state’s Workers’ Compensation Act. In Texas, the employer and/or the carrier enjoy such subrogation rights. Construing that statute, the Supreme Court of Oklahoma, in a split decision, recently held that the subrogation prohibition applied where the deceased employee’s contract of employment was entered into in Oklahoma in spite of the fact that the widow’s workers’ compensation death benefits claim, as well as a third party tort claim against a responsible defendant, were filed in Texas and the issues otherwise determined according to Texas law. The majority of the high court held that at the time the employment contract was created, the right to receive death benefits free from any right of subrogation on the part of employer or insurer became vested and fixed by law. The obligation and right were established “irrespective of where [the] accident resulting in injury may occur.” The state legislature had evinced no intent to make this element of the death benefit obligation and right dependent upon (1) the amount of the death benefit, (2) the forum in which the death benefits were determined, or (3) the jurisdiction in which a widow or other dependent might seek compensation from third parties.
Reported by Thomas A. Robinson, J.D.
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See Holley v. Ace American Ins. Co., 2013 Okla. LEXIS 120 (Oct. 22, 2013) [2013 Okla. LEXIS 120 (Oct. 22, 2013)]
See generally Larson’s Workers’ Compensation Law, § 117.01 [117.01]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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