Opinion:Tasso v. Lucky Star Casino, 2022 OK CIV APP 15
Subject Matter:Worker’s Compensation
Date Decided:April 22, 2022
Trial Court:Workers’ Compensation Commision
Route to this Court:Claimant sought review of an order of the Workers’ Compensation Commission affirming a decision of an administrative law judge to dismiss his claim for lack of jurisdiction by the Commission.
Facts:In this case, a worker twisted his knee while backing into a restroom stall and filed a CC-Form-3. The employer was Lucky Star Casino, who had AMERIND as its insurer which had Berkley Risk as its third party administrator of Tribal Workers’ Compensation claims. Lucky Star filed a motion to dismiss on grounds that it is owned by the Cheyenne and Arapaho Tribes and enjoys sovereign immunity, as does AMERIND. Claimant sought to bring Berkley Risk into the litigation because it is a member of W.R. Berkley Corporation, a Fortune 500 holding company. Berkley filed a motion to dismiss asserting the Workers’ Compensation Commission lacks personal jurisdiction over it for lack of minimum contacts with Oklahoma and it does not take premiums for workers’ compensation insurance.

The Administrative Law Judge (ALJ) found that Lucky Star has sovereign immunity because of its tribal ownership and that AMERIND is a federally chartered corporation under section 17 of the Indian Reorganization Act of 1934 and that AMERIND is the entity that receives workers’ compensation premiums. AMERIND has a policy called the Tribal Worker’s Compensation Benefit Endorsement that replaces any and all rights and remedies an employee may have against the Tribes for any injury applicable under federal, state, or tribal law. Berkley administrates workers’ compensation claims according to the Endorsement and that Waltrip v. Osage Million Dollar Elm Casino, 2012 OK 65 is distinguishable enough that it is not controlling in this case because of AMERIND’s status as a federally chartered corporation, and thus a tribal enterprise that had sovereign immunity. Berkley did have minimum contacts because it was licensed as a third party administrator in Oklahoma. However, there is no language in the Administrative Workers’ Compensation Act that says a third party administrator is interchangeable with the employer or the insurer. Claimant appealed the Workers’ Compensation Commission’s decision that he had no legally cognizable claim against Berkley Risk.
Standard of Review:Whether the Commission had jurisdiction is a question of law and its decision will be reviewed de novo. See Pales v. Cherokee Nation Enters., 20009 OK CIV APP 65, ¶ 4.
Analysis:The primary issue before the Court was determining whether the Workers’ Compensation Commission (WCC) had jurisdiction over Lucky Star Casino, AMERIND, and Berkley Risk in the Claimant’s workers’ compensation claim. First, Claimant argued that 25 U.S.C.A. § 5118 prohibited Lucky Star Casino (owned by the Cheyenne and Arapaho Tribes) from obtaining workers’ compensation coverage from AMERIND, which is a federally chartered corporation. Tribes are able to form businesses together under 25 U.S.C.A. § 5124 (Indian Reorganization Act or IRA) and maintain their sovereign immunity. Claimant argued that Tribes are not allowed to avoid section 5118’s exclusion by associating with a tribal corporation formed under section 5124. However, this argument failed because the Oklahoma Indian Welfare Act, 25 U.S.C.A. § 5203 (Oklahoma Indian Welfare Act or OIWA) expanded the IRA to include Indian tribes in Oklahoma. Thus, tribal corporations formed under either of the statutes receive sovereign immunity. This was confirmed by the Oklahoma Supreme Court in State ex rel. Oklahoma Tax Comm’n v. Thlopthlocca Town of Oklahoma, 1992 OK 127, ¶ 8.

Claimant sought to bring his claim against Berkley as Lucky Star’s third-party administrator. His argument relied on Waltrip v. Osage Million Dollar Elm Casino, 2012 OK 65, based on the phrase, “Regardless of the tribes’ sovereign immunity, the Oklahoma Workers’ Compensation Court may exercise jurisdiction over Insurer, which is a Delaware corporation, and its third party administrator.” This argument failed because the facts in Waltrip did not align with the facts of this case, primarily in that the insurer in Waltrip was a Delaware corporation, and AMERIND is a tribal corporation vested with sovereign immunity. Berkley as the administrator of workers’ compensation claims for AMERIND could not fall under the WCC’s jurisdiction because Berkley does not fall under 85A O.S. Supp. 2020 § 2(2)’s definition of employer or insurance carrier. Thus the Claimant failed to show that he was able to bring his claim to Berkley Risk despite Lucky Star and AMERIND’s immunity.

Because of AMERIND’s sovereign immunity, the Court could not review its policy terms and 25 U.S.C.A. § 5124 was not read in as restrictive of a manner as Claimant asserted, and AMERIND is permitted to provide workers’ compensation coverage to other tribal businesses. Therefore, the WCC did not have jurisdiction over Lucky Star and AMERIND and Claimant could not bring his claims to the third-party workers’ compensation administrator.
Vote:3-0. Rapp, J., Blackwell, J., and Wiseman, P.J. (author) concur.
Other:In concurring specially, Judge Blackwell emphasized that the Cheyenne and Arapaho’s admittance to form a federally-chartered corporation under section 5124 (section 17 of the IRA) is merely peripheral to the more importance of whether AMERIND, as a federally-chartered corporation under the same act, was entitled to sovereign immunity. Because the Court concluded that AMERIND did have sovereign immunity, he concurred.