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.