Tort Reform, Past, Present and Future Found in Workers' Compensation

Saturday, March 10, 2007 | 0

By Michael Stevens

Some of the younger lawyers (and many of the corporate executives, insurance lawyers, and corporate counsel) may have forgotten that once upon a time the workers' compensation program was implemented as a tort reform measure. The basic purpose was to reasonably compensate injured workers for work-related accidents without consideration of fault.

The workers' compensation system would take care of medicals and wages in a reasonably adequate manner. Essentially the workers gave up certain elements of damages but no longer had to show a co-worker or employer was negligent or at fault for the injuries. If it happened on the job, you got taken care of.

Consequently, the adequacy of this compensation and the procedures employed by the employers to "take care" of their own employees and their families should be held to the highest standard of care.

The value of a life lost at work has proven to have much less than the value of that life lost on a highway or from corporate negligence to a consumer. There is compensation for dependents, and there is compensation in a lump sum of $50,000 should death occur within 4 years of injury (the amount has increased some due to inflation).

Therefore, it is disturbing to watch and witness a system of supportive examiners who ignore the workers' injuries and push them back to work.

It is disturbing to see a system, where the worker is injured in a car accident and deprived of the ease of receiving reparations benefits for his medical treatment by selecting his own physicians and treatment options (rather than the managed care of the workers compensation system) because workers compensation is primary.

It is disturbing to see where the employer can violate safety rules and be grossly negligent but nonetheless be immune from suit by the employee and the violation of state safety regulations only permits a small multiplier of the damages.

I know of one case where an employer at the airport lost his life when he was inadequately trained in the proper procedures of removing tires from split rims. Air remaining in the rim could cause the rim to explode like a bomb making the rim an flying projectile. In this case, the worker sustained a crushing chest wound, and suffered immensely over the next hour until he died.

At the heart of the employer's negligence (or gross negligence) was a desire to save the tires and thus a few dollars by recycling the tires. Rather than drill a large hole in the tire before changing, they opted for another less destructive method in violation of manufacturer's standards. Air remained in the tire, and it blew up in his face.

The employee's family was entitled to a recovery, but since his children were adults and he had no wife, there were no benefits to be paid to the survivors other than the lump sum death benefits which were nominal. Worse yet, the employer's insurance company disputed the safety violation multiplier requiring the worker's estate to file and an administrative law judge awarding the multiplier. And the story gets even worse, the administrative fine for the safety violation was minimal.

Now that's a sad face behind tort reform in the face of deny, delay, and don't pay.

That is why the bill making it easier to hold the employer accountable for their grossly negligent acts needs to be passed. Industrial accidents prompted by corporate malfeasance and greed are not accidents but something less than criminal in the eyes of the law but not the eyes of the surviving families.

The piece of legislation that needs to change is found in KRS 342.690.

If the actions of the employer would entitle the injured worker to punitive damages, except for the fact, he or she was in the scope of employment, then the employer should be liable.

With that said, it is unfortunate that HB 398 which had been offered by Rep. J.R. Gray, D, Benton has now been taken off the legislative table this session. HR 398 would have allowed for a cause of action outside Workers Compensation if the act causing the employee's injury was the result of the violation of safety standards or laws, recklessness or gross negligence. Under current law, an employer must intend to kill an employee before they can be held accountable outside the workers comp system. This bill would have alleviated that obstacle and require employers to maintain safe workplaces.

This column was first posted as a blog on the Web site, Kentucky Law Review, on March 6. The Web site can be read at http://www.kentuckylawblog.com/.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.