In Summers v. Zurich Am. Ins. Co., No. 105617 (Okla. May 26, 2009) [here], the Oklahoma Supreme Court addressed confusion under state law in a establishing a bad faith claim against a workers' compensation carrier.

    Ms. Summers was injured in March 2004 while employed at Walmart.  She was an insured under a workers' compensation policy issued by Zurich.  Several orders from the Workers' Compensation Court directed that medical and wage benefits be provided to Ms. Summers.  On October 16, 2007, the Workers' Compensation Court entered an Order Authorizing Medical Treatment which repeated prior authorizations in 2004, 2005, and 2006.  Zurich did not appeal from this final order or any order of the Workers' Compensation Court. 

    Zurich, however, refused on several occasions to authorize the treatment ordered by the Workers' Compensation Court.   She sued Zurich, asserting its refusal to comply with the Court's order and provide benefits in a timely manner constituted bad faith.  Zurich moved for summary judgment, arguing Ms. Summers had failed to secure proper certification of her workers' compensation claim as a necessary statutory precondition to an allegation of bad faith.  The trial court granted Zurich's motion and the Court of Appeals affirmed.

    The Supreme Court reversed. Indeed, a claimant seeking to enforce a monetary workers' compensation award had to use the statutory mechanism and have the award certified by the Workers' Compensation Court for enforcement.  But a claimant who obtained an order certifying that non-monetary benefits had not been provided could pursue a tort claim for bad faith in the trial court without pursuing execution of a certified judgment. 

    Here, Ms. Summers alleged Zurich refused to authorize the medical treatment ordered by the Workers' Compensation Court.  The record contained an order certifying that previously awarded medical benefits had not been provided as ordered, and demonstrated no good cause for Zurich's failure to do so.  Ms. Summers could therefore choose to pursue a tort claim in the trial court for Zurich's continuing failure to pay the overdue court-ordered medical treatment.  Consequently, the trial court erred in granting summary judgment.

    Hawai`i law similarly considers a tort claim against the workers' compensation carrier to be outside and separate from the workers' compensation statutes.  See, e.g., Hough v. Pacific Ins. Co., Ltd., 83 Hawai`i 457, 927 P.2d 858 (1996); Catron v. Tokio Marine Management, Inc., 90 Hawai`i 407, 978 P.2d 845 (1999).  In our next post, we will update a bad faith claim against a workers' compensation carrier percolating its way through the trial court on the island of Kauai.