With Minick’s help, they drafted legislation in 2005 that allowed waivers so long as there was a cooling off period of 10 days after the injury. Following the success of that measure, Minick helped chamber members form a new group for employers with opt-out plans. They called it the Texas Alliance of Nonsubscribers and hired the chamber’s longtime lobbyist, Richard Evans, who had been deputy legislative affairs director for George W. Bush when he was governor.
For the first time, Minick became his clients’ political partner, guiding their ambitions to shape legislation and the future of workplace injury benefits.
Recognizing the growth potential, the global insurance brokerage Arthur J. Gallagher & Co. acquired PartnerSource in 2009 in a deal that left Minick in charge. The financial terms weren’t disclosed, but documents filed with securities regulators in 2012 reveal that Minick and his partners, which included two charities, received $7 million in Gallagher shares as a bonus payment.
Minick would soon begin justifying the investment. Spurred by Texas clients eager to opt out in other states, PartnerSource started looking at opportunities elsewhere.
Their first target was due north: Oklahoma.
Sweepin’ Down the Plain
Year after year, Oklahoma’s legislature had tried to overhaul its workers’ comp system to lower insurance rates, which were higher than those in surrounding states. But the changes only brought modest drops.
In 2011, Minick brought a group of his frustrated clients together in the Oklahoma Injury Benefit Coalition, led by Hobby Lobby and the Unit Corp. drilling company. The group recruited Steve Edwards, the former state Republican Party chairman, as its lobbyist.
“Our claims process in Texas was a lot quicker and resolved a lot faster than anything we ever had in Oklahoma,” said Mark Schell, Unit’s senior vice president and general counsel. “We’ve had claims in other states including Oklahoma that are two to three years old because we can’t get them resolved. You have no control over them and they just drag on and on.” (Unit recently opted back in in Texas after a spate of serious injuries during the oil boom increased their legal costs. But Schell said he still believes in opt out.)
The group’s first effort to pass an opt-out bill was narrowly defeated in 2012. But they returned in 2013 with a new partner, the State Chamber of Oklahoma, and a more ambitious plan — not only to pass an opt-out option, but to rewrite the entire Oklahoma workers’ comp law.
The bill differed from Texas’ version in two ways. Employers would have to provide a minimum level of benefits matching state law. And, unlike Texas, employers would get to keep their immunity from lawsuits.
A chamber lobbyist and a Unit lawyer wrote the bill, incorporating language from various interests, including Minick. “I was one of the primary drafters,” Minick said.
“Is there a potential conflict of interest between our desire to see workers’ comp options adopted in other states and our firm’s revenue model? Yes,” he said. “But the conflicts of interest are only a problem when they’re not disclosed.”
One thing not disclosed: the Oklahoma bill copied language nearly verbatim from PartnerSource plans — making the definition of “accident” more restrictive than it was in traditional workers’ comp.
Walmart’s Plan Vs. Oklahoma Law
Oklahoma’s opt-out law is remarkably similar to PartnerSource plans when it comes to the definition of "accident."
Walmart’s 2012 Plan
"Accident" means an event involving factors external to the Participant which:
(a) was unforeseen, unplanned, and unexpected;
(b) occurred at a specifically identifiable time and place;
(c) occurred by chance or from unknown causes; and
(d) resulted in physical injury (or mental or emotional injury, in the event of a Violent Crime) to the Participant;
Oklahoma’s 2013 Law
An "accident" means an event involving factors external to the employee that:
(1) was unintended, unanticipated, unforeseen, unplanned and unexpected,
(2) occurred at a specifically identifiable time and place,
(3) occurred by chance or from unknown causes, and
(4) was independent of sickness, mental incapacity, bodily infirmity or any other cause.
Walmart’s Texas plan, which Minick wrote the year before, defines “accident” as “an event involving factors external to the participant which was unforeseen, unplanned and unexpected,” that “occurred at a specifically identifiable time and place,” and “occurred by chance or from unknown causes.”
The Oklahoma bill defined it as “an event involving factors external to the employee that was unintended, unanticipated, unforeseen, unplanned and unexpected,” that “occurred at a specifically identifiable time and place,” and “occurred by chance or from unknown causes.”
Gillespie, of the insurance association, said the wording could be used to deny almost any claim because nearly every injury has a cause.
Since the law took effect last year, 59 companies, covering an estimated 22,500 workers, have opted out, ranging from small home health care agencies to national brands likeMacy’s and Swift Transportation. Fifty-three have plans that were written by PartnerSource.
On paper, the benefits look similar to — or even better than — state workers’ comp. Both replace at least 70 percent of workers’ wages. Some plans pay 90 or even 100 percent of wages.
But there’s one big difference. Benefits under opt-out plans are subject to income and payroll taxes; under workers’ comp, they’re not. As a result, 80 percent of the plans actually provide lower benefits, ProPublica and NPR’s analysis found.
Minick said that the analysis missed a key point: Because the plans that offer benefits above the minimum are larger employers, the majority of workers under opt-out plans receive equal or higher benefits. In addition, he said, those companies start benefits on the first day of the injury instead of waiting three days, like workers’ comp does.
And their plans don’t have wage limits. As part of the 2013 law, the Oklahoma legislature capped benefit payments under workers’ comp at $561 a week. In March, ProPublica and NPR profiled an injured Goodyear Tire worker whose family was evicted from their home when his income dropped so much they could no longer afford the rent.
But the Oklahoma plans incorporate many of the rigid rules from Texas. As opt-out got underway, injured workers, lawyers and even the insurance commissioner quickly learned what that meant.
Learning the Hard Way
Last March, Rachel Jenkins was working as a job coach and personal care aide for ResCare, the nation’s largest private provider of services for the physically and mentally disabled, when a man attacked her client at an Oklahoma City facility.
While trying to pull the assailant off her client, she was thrown to the ground, injuring her shoulder. ResCare told her to bring her client home, and after finishing her shift, Jenkins went to the emergency room. The doctor prescribed pain medication, which knocked her out, she said.
The next day, ResCare sent Jenkins to its doctor, where she called the company’s claims hotline. The adjuster told her the injury wouldn’t be covered because she called 27 hours after it happened — instead of the required 24.
“They told me that I should have called the next morning at 10 o’clock. But I was asleep. I was on meds,” said Jenkins, a single mother with four kids, ages 1 through 12.
Jenkins’ supervisor, who witnessed the incident, complained to the corporate office, and a week later, ResCare reversed its decision.
To ResCare and Minick, who wrote the company’s plan, Jenkins’ case illustrates the discretion that companies have, in this case to accept claims even when they’re not reported on time.
“The system worked and took care of her and fully paid her benefits,” Minick said.
Not so, said Jenkins. Her shoulder remains in constant pain, she said, preventing her from returning to work fulltime.
In May, the company sent her for an MRI of her shoulder. Reading it, the doctor ResCare sent her to — an ear-nose-and-throat doctor at an urgent care clinic — noted inflammation and recommended that she see an orthopedic specialist, medical records show.
But ResCare’s adjuster wouldn’t authorize it. Instead, the company scheduled an independent medical exam with a doctor flown in from Arizona to review her case.
