Wrongful Death, Without Recourse

Saturday, April 21, 2007 | 0

By John Brummett

A 19-year-old Danville man choked to death in 2004 after his shirt got caught in a Deltic Timber wood chipper that the federal Occupational Safety and Health Administration later determined to have been unsafe.

Jeremy Foster's survivors got nothing in workers' compensation benefits.

A bill at the Legislature to address that circumstance will almost assuredly fail. As Sen. Shane Broadway of Bryant, the sponsor, readily admits, it's hard to pass a workers' compensation bill when management and labor don't agree.

In this case, management doesn't.

To begin to understand, one needs the context of what the workers' compensation system is all about. It is to keep employers and employees out of court, where both sides would incur high costs and face great risks.

An injured worker shouldn't have to go into court. He should be spared that time and expense. After all, he's hurt and not working.

An employer ought to be able to insure himself against the costs of compensating his employees who get hurt on the job. If able to secure affordable insurance based on a reasonable safety record, the employer ought not to be at risk of bankruptcy from an unpredictably massive jury verdict.

A state law sets the workers' compensation procedure and outlines the rules. A quasi-judicial commission with labor and management representation hears contested matters and issues rulings, subject to review by the intermediate Arkansas Court of Appeals. Benefits are insured by pools comprising employer premiums.

But this is a political institution created and modified by the Legislature, thus imperfect. Naturally, the rules tilt to the advantage of employers in states like Arkansas that are desperate for jobs and afraid of offending those who provide them.

If you look on the Web site of the Greater Little Rock Chamber of Commerce, you'll find an invitation to do business that boasts, "Arkansas has one of the most progressive workers' compensation programs in the nation."

What does the chamber mean by that?

It isn't that workers can expect to be generously compensated for injuries.

Oh, no.

It's this: "Since July 1, 1992, the state has not experienced a rate increase, and premiums have decreased overall by 38%."

The message: Come on down. Our people won't cost you too much if they get hurt.

Young Jeremy Foster actually was affiliated with an employment agency in Texarkana, Texas. Through that association, he got fateful work loading Deltic's wood chipper at Ola. As it happened, Deltic had recently modified the apparatus in a way that had the tragically unintended effect of impairing Foster's ability to extricate himself. He was hanged by his shirt.

Deltic sent flowers and paid an OSHA fine.

The thing was that Foster had no surviving dependents, meaning no wife and no kids. The Arkansas workers' compensation system provides payments only to injured workers or surviving dependents. Some states provide payments to nondependent survivors.

The young man's parents and brothers and sisters couldn't go to court. The point of the workers' comp system is to foreclose suing an employer for an on-the-job injury.

Broadway's bill would permit a $50,000 lump sum benefit in such cases.

As it turns out, the Arkansas State Chamber of Commerce and the Arkansas AFL-CIO were unable this year -- for the first time since 1995 -- to agree pre-emptively on workers' compensation bills for the legislative session. The breakdown had to do with management's concern about the soundness of a couple of trust funds and its desire to limit claims.

Beyond that, Ken Hall of the Chamber of Commerce says a new benefit of $50,000 is something that needs study.

Broadway says he may try the bill next week in the Senate Public Health, Welfare and Labor Committee, but that the two-thirds majority required to amend workers compensation law is almost certainly beyond reach. The committee meets the same time as the Senate Education Committee, on which Broadway sits. He might get more accomplished by staying there, sad to say.

John Brummett is a columnist for the Arkansas News Bureau in Little Rock. This first appeared on the Web site http://www.arkansasnews.com.

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