(dissenting).
There is no question that had the claimant in this case been employed by a company with an insurance carrier, instead of a self-insured, the estoppel provisions of the Act would apply and claimant would be entitled to compensation. And, in my opinion, this is what the legislature intended.
Title 85 O.S.1971 § 3(9) specifically defines a self-insured employer as an “Insurance Carrier.” It is inconceivable to me that the legislature would classify an own risk employer for all purposes of workmen’s compensation except for the estoppel act as determined by the majority opinion. Such a distinction would serve no useful purpose and would discriminate against persons of the same class in violation of their constitutional rights.
Traditionally, in cases involving equal protection of law, a classification will not be disturbed unless determined to be without rational basis. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). But, where a classification is based upon suspect criteria or impinges fundamental interests, the inquiry involves strict judicial examination. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). Thus, on review, a classification will be declared invalid unless found justified by compelling state interest. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1968).
There is no rational basis for differentiation between employees of the same class because one employer pays premiums for coverage while another elects to be a self-insurer. By statutory declaration the self-insurer is as much an insurance carrier as private insurers named in § 3(9) of the Act. No inequity results from applying the estoppel act uniformly to employees of the same class who are scheduled by either insurer. Whether an employer insures with a private carrier or elects to be a self-insurer is of no consequence. Under either insurance program the insurer has the unequivocal right to declare any employee engaged in nonhazardous employment may, or may not be, included for compensation coverage.
Prior decisions mandate a different treatment for scheduled employees of self-insurers than is accorded employees insured by carriers who collect premiums for additional risks. Neither legislative history nor evidentiary basis supports the argument this classification bears fair relationship to any legislative objective or accords equal treatment to employees of the same class. I am unimpressed by the conclusion claimant is not denied equal protection of law simply because the right remains to pursue a common law remedy. This argument begs the question. The right of election rests basically with the self-insurer. The employee is relegated to relief by common law action, subject to all defenses the employer cannot otherwise assert, when the self-insurer relies upon estoppel.
Earlier decisions of Baker & Witt to consider the issue of equality between employees of the same class and gave no recognition to other applicable statutes. Judicial construction by the majority opinion has evolved an arbitrary and discriminatory classification between employees *1336of the same class, without reasonable relationship to legitimate state interest. An employee accidentally injured during work not defined as hazardous may rely upon the estoppel act if his employer paid a premium to an insurer who issued a policy covering the employee’s job. The same employee under an employer who elects to be self-insured cannot rely upon the estoppel act although scheduled in the own risk application. The arbitrary classification rests entirely upon the employer’s election over which the employee has no control.
The majority suggests there is rational basis for this classification as the estoppel act implements legislative policy to prevent inequity. Self-insurers receive no premiums for coverage, while private insurers collect premiums for expanded risk. Thus inequity of allowing private insurers to collect premiums and then contest coverage is eliminated, whereas no comparable rationale applies to self-insurers.
If considered on equitable principles, clearly greater inequity results from present construction of meaning and intent of the estoppel act.
Our statutes relating to insurance require casualty insurers’ compliance with provisions of Workmen’s Compensation Act. 36 O.S.1971 §§ 608, 707. Every insurer must secure permit, pay license fees, make annual reports and be subject to license revocation, § 615. Under § 625 every insurer must pay four percent (4%) annual tax on all yearly premiums.
Self-insurers are not bound by these requirements, pay no premium taxes, avoid all obligations laid upon private insurers, and escape charges for any administrative expense of the Act. Demonstrably, self-insurers maintain a favored position and derive direct financial benefit from tax free status. Although an insurance carrier by statutory definition, all employees are scheduled for coverage without obligations since accorded the privilege of asserting estoppel act upon the theory no premiums are paid and received and no benefits accrue from self-insured status. What legitimate state interest, or rational basis for differentiation in classification are to be found in this judicially created favored status? The resulting inequity is apparent.
Reconsideration of the estoppel act upon the basis of legislative intent and relationship to other statutes, 85 O.S.1971 §§ 3(9), 65.2 requires recognition that the decisions in Sears, Roebuck & Company v. Baker, and Cities Service Gas Co. v. Witt, supra, were in error.
I am authorized to state that Justice SIMMS and Justice DOOLIN concur in the views herein expressed.