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High Court Looks at MO Work Comp Changes

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Missouri Supreme Court Building, Jefferson City.

By Steve Bell

http://stream.publicbroadcasting.net/production/mp3/kcur/local-kcur-655257.mp3

Kansas City, MO –
Prior to 1926 in an injured Missouri worker had two choices - depend on the benevolence of his or her employer or take that employer to court for negligence, which many did. So, says Attorney John Boyd, Missouri passed a Workers' Compensation law to protect employers from lawsuits.

Boyd commented: "In exchange for giving up their right to sue, employees were promised that we will provide you with medical treatment, we will promise you with lost income replacement, and if you have a lasting disability you will be paid for that - without regard for fault."

The law allowed claimants to appeal to Missouri courts if they believed that they had not been fairly compensated. And Mike Grote of the Missouri Chamber of Commerce and Industry says the courts expanded the workers' comp law far beyond the original intent.

Grote says businesses are frustrated with a system in which individuals were getting injured while not on the job or were getting injured while under the influence of drugs and alcohol or while not observing the safety policy, and were receiving compensation. While the system grew, workers' comp insurance premiums also got larger. Grote says it was simply time to overhaul the system.

For years, Democrats blocked attempts to replace the old law with a more frugal one, but in 2005, with the Republican party in control of both houses and the governor's office, the Missouri legislature passed a totally new work comp law.

Attorney Boyd, who led the law team leading the Supreme Court Challenge, says 4 out of 5 injuries that were covered in the past will be ineligible, He says that is because the new law only covers injuries that produce disability, while 80 percent of successful claimants in the past received medical expenses only, and were not disabled.

Boyd says the new law makes over 40 changes that undermine the purpose of the 1926 statute. Among them, it reduces compensation amounts for older workers, and reduces benefits by 50 percent unless a specific work event was the "predominant" cause of a condition.

Dan Manley of the firefighters union says one his members suffered a heart attack on the job and was told that under the new law he was not entitled to work comp. That fireman used his sick leave with the department to be able cover one-month recovery. But he had to pick up the difference between the medical bills and what his health insurance paid. Manley believes that should have been a "duty-related" expense.

Manley also says reduction of benefits if safety rules were ignored could discourage first responders from taking risks to save lives and he says the "no lost time no benefits" rule will make first responders responsible for their own medical expenses if they contract HIV, Hepatitis-B or some other disease in the line of duty.

Benefits for hospital workers could be affected too. Patsie Cunningham contracted active tuberculosis on her job as a hospital food technician. She says health care system workers are often exposed unknowingly because patients have not been fully diagnosed yet or because someone slipped up in making sure a patient with something contagious wasn't properly isolated. She says, "You've been in and out of this room, and several days later, there's 'isolation' signs on the door."

Cunningham's case went through the work comp system while the old law was in effect. She missed no work, but her medical treatment was covered. She also challenged the first ruling that an annual chest x-ray her doctor prescribed would not be covered. She could do that because the 1926 law had a provision for claimants who didn't believe the work comp system had lived up to its purpose to go to court and let the judge decide.

Arguments presented to the state Supreme Court November 29 by attorney Alan Mandel centered on the absence of that provision in the 2005 version. In his opening remarks to the judges, Mandel said:

"In 2005 in the most Draconian statute in this country, the legislature said, 'You know what? we're gonna cut you out of this workers comp system. We're gonna give you all kinds of false based defenses, and we're gonna cut large amounts of people out this system. But you know what? We're gonna keep that line here that keeps you from going to court for a remedy.'"

Mandel told the court that absence of remedy violates the open courts and due process requirements of the Missouri and US constitutions and dooms the entire 2005 law.

Speaking for the State, the attorney for the Associated Industries of Missouri, Alana Barragan-Scott, called the due process claim far-fetched:

"There's no fundamental right in play here. And to be very clear, the due process statute that applies is widely very deferential. The legislature must be deferred to unless it has enacted a statute that has no rational basis and no rational relationship to a legitimate state interest."

Barrigan-Scott maintained that the state has no obligation to provide a no-fault compensation system, and since it has gone beyond its responsibility in doing so, has no obligation to include an appeal process. She says an injured worker can always sue the employer. Opponents of the law note that to successfully do that, the worker has to prove negligence.

The Missouri Supreme Court is studying the matter, and will release a written. The next scheduled "hand-down" date for opinions is December 18th.

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