December 1, 2005

Labor groups challenge Missouri's new workers compensation law

This past July, Missouri's Governor Blunt signed legislation overhauling the state's workers compensation statute, swinging the pendulum much more heavily in favor of the employer. (In a prior post, my colleague Jon Coppelman commented on some of these changes while they were still under review.) Yesterday, more than 70 labor groups filed suit to challenge the constitutionality of the new law. The suit charges that:

"The workers' compensation system was created as a way to resolve injury claims through administrative proceedings rather than the courts. But the lawsuit contends the "drastically altered" law diminishes workers' rights to the point that the administrative system no longer is an adequate substitute for suing in court.

It alleges multiple due process violations of the state and federal constitutions, as well as equal rights violations for allegedly discriminating against older workers and others. The lawsuit claims that new drug testing policies violate rights against unreasonable searches. And it claims new legislative and executive branch control over administrative law judges who hear workers' compensation cases violates the constitutional separation of powers."

Major provisions of the new law
The new law involves many changes. Some of the most significant changes tighten the definition of compensable injuries. An injured worker must now demonstrate that work was the prevailing factor or primary cause of an injury. Previously, the standard was that the work had to be a substantial factor; also, the new law redefines an accident to be "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and caused by a "specific event' during a 'single work shift,' " notably striking the words "with or without human fault."

The law adds a mechanism allowing for a 25% to 50% reduction in benefits if the injured worker failed to use a safety device or was not following safety rules. Significantly, this failure does not have to be willful. We find it troubling that coupled with this change is the provision that employers now only need to make a "reasonable effort" rather than the previous "diligent effort" to get employees to use safety devices and to follow safety rules. This effectively shifts the burden of safety from the employer to the employee. It's hard to understand what the thinking was behind any provision that would weaken safety standards in any way.

There are many other changes - for a more in-depth view, Administrative law judge Carl Mueller produced a 20 page review of the new Missouri law (pdf) comparing it to the old law; or see The Employer's Guide to Understanding the New Missouri Workers' Compensation Statues (pdf) by J. Scott Gordon of Long, Luder & Gordon.

Be careful what you wish for?
We wouldn't venture any predictions about whether this particular challenge by labor will succeed or fail, but we would lay money on the fact that if it fails, the matter won't be put to bed. While reform may have been needed, some provisions in the new law mark an overall shift away from the no-fault pact that has been at the very core of exclusive remedy. Any significant erosion of that pact will inevitably lead to an increase in court challenges. To succeed, workers compensation needs to be a delicate balancing act between the rights and responsibilities of both the employer and the employee. Any swing of the pendulum that shifts the balance too heavily in favor of the employer will drive aggrieved workers to the courts, the very thing that workers compensation laws were designed to protect employers from. Time and the courts will tell whether Governor Blunt's reform will prove to be too blunt an instrument.



This appears to eliminate repetitive traumas entirely. This is interesting because I think the exclusive remedy provision of the law would likely then be interpreted as not prohibiting suits vs the employer for repetitive trauma injuries (i.e., comp can't be your exclusive remedy for an injury when that injury is specifically excluded from compensability).

This law does substantially improve the employers position, but they have gone a bit overboard because the abuse has been wide spread.

My comments focus soley on the duty for employees to operate within safety procedures or to be penalized.
Currently in many jursdictions, no consequences exist to promote safe practices by placing any burden upon employees. If the insured raises this defence, they should have to prove that the safe practice was known or should have been known by the employee, and that the disregard for that procedure caused the injury. Disregard for a peripheral procedure should not be penalized, if the safety feature ignored was not the proximate cause of the injury, it can not be adefense. Nor should lackluster "safety programs" that are nothing more than folder fodder be used as an aegis to justice. If an employer has trained the employee, documents it, and an injury results due to the employees disregard, then I believe that a safeguard should be in place for the employer.
This could also promote safety, training by the employer, and increased use in safety devices.


Submit your email to be notified when this site is updated

Need help with your workers' comp program?

Monthly Archives

About this Entry

This page contains a single entry by Julie Ferguson published on December 1, 2005 10:39 AM.

Pom Poms for Drug Sales was the previous entry in this blog.

Obese Trucker = Public Safety Hazard? is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.

OpenID accepted here Learn more about OpenID