Post-Termination Injury Claims, Round 2

As discussed in a previous posting, the 2005 legislature added a provision for limiting "post-termination injury claim[s]" to a six-month statute of limitation instead of the two years applied to all other injuries. 85 O.S. §43(A) states: "Post-termination injury claims shall be filed within six (6) months of termination of employment,. . ."

Jackie Wilkinson worked as a computer keyboardist and alleged she sustained cumulative trauma injuries through the date of her last employment on December 18, 2005. She filed her Form 3 claim eight months later on August 18, 2006. Employer asserted that she had failed to file her claim within the six-month period, and it was therefore barred.

Claimant argued that the language applied to persons who were injured after termination, e.g. cleaning out her desk or returning to collect a final paycheck. Under Oklahoma law both types of claims, if proven, would be compensable. Despite the employer's argument that the language of the statute is clear, unambiguous and applicable to all workers whether injured before or after termination of employment, the COCA found the phrase "post-termination injury claim" to be ambiguous and reconciled the ambiguity by adopting claimant's analysis. It concluded that the legislature intended the language to curtail retaliatory discharge claims and therefore limited claims arising after the employee has been fired. Ponca Iron & Metal v. Wilkinson, __ OK CIV APP __, __ P.3d __.

Since the issue of the case was decided by rules of statutory construction, the COCA found that it was unnecessary to address the constitutionality of the provision. This issue will be tested under this rationale only when an after-termination-injured worker (e.g., while cleaning out her desk) appeals the denial of her claim due to expiration of the six-month statute of limitations. More on this question is discussed on my website.