Workers' compensation under construction in statehouse
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Workers' compensation under construction in statehouse

Date: February 9, 2011
By: Audrey Moon
State Capitol Bureau
Links: HB 162 HB 170 HB 133 SB 8

JEFFERSON CITY - Missouri business organizations are pushing lawmakers for what might seem an unusual objective — expanding the business-financed program that provides coverage for workers injured on the job.

Workers' compensation is a state-funded program, enacted in 1925, that covers medical bills and disability payments for people injured while on the job.

Business has a financial interest in the program because it pays for the coverage. Also, when a worker gets coverage from the program, legal action against the worker's employer for potentially higher awards is restricted or prohibited.

"It is important for the business community," said Rep. Ellen Brandom, R-Sikeston. "As Missouri wants to expand our job opportunities, we want Missouri to be a great place for businesses to locate in and expand."

Enacting changes in the program has become a must-pass issue for business because of changes the legislature made in 2005, at the behest of business, that have come back to haunt them.

One of the changes involves restoring coverage for occupational diseases. 

The sponsor of the workers' compensation bill, Rep. Barney Fisher, R-Richards, said occupational diseases had been included in the state program starting 80 years ago, but in recent years judicial rulings have taken that away.

"Occupational diseases are terrible, absolutely horrible diseases," Fisher said. "And if they are job related, then compensation will be given to those people."

In the precedent-setting case against occupational diseases, Franklin v. CertainTeed Corp., two St. Louis Circuit Court judges denied workers' compensation benefits to Angelena Franklin after her family member died from asbestos exposure at a pipe plant. The case was appealed to the Eastern District Court of Appeals, which let the ruling stand. The attorney for the case, Andrew O'Brien, argued that the 2005 legislative changes to workers' compensation law made is so that only "accidents" were covered by the system, and that occupational diseases were not. 

The concern from business is that exclusion of occupational disease from workers' compensation coverage opens the door to civil lawsuits that could lead to substantially higher jury awards for disability claims.

"All this bill does is put occupational diseases back under workers' compensation," Fisher said.

Missouri's House and Senate have taken substantially different positions on one aspect of occupational diseases, such as mesothelioma, that result from exposure to toxic chemicals or substances. 

The House approved a measure that would include those diseases under workers' compensation, thus potentially barring some lawsuits by diseased workers.

The Senate, however, explicitly excluded toxic exposure from workers' compensation.

The bill's sponsor, Sen. Jack Goodman, R-Mt. Vernon, said it was to assure that a diseased worker retained the right to sue for potentially higher financial awards.

"One of the real and legitimate functions of our system of justice is not only to make recompense to those who have been wronged, but also to provide discouragement to those that would do wrong to others in advance," Goodman said during Wednesday's Senate debate on his measure.

Goodman said leaving toxic exposure open to litigation could create a financial incentive for businesses to provide a healthier workplace.

"It's rare, I think, that we stand on the floor of this chamber and handle legislation or vote on legislation or deliberate over legislation that very literally may or may not save the lives of a large number of future Missourians," he said.

Beyond occupational diseases, another issue before Missouri's legislature would specifically include an injury caused by a co-worker under workers' compensation.

That change is prompted by an August 2010 appellate court decision, Robinson v. Hooker, which held that the co-worker of an employee injured on the job can be held liable for an injury that arises from negligence.

"This is another kind of example of an unintended judicial interpretation that isn't going to help," said Fisher. "It disrupts the workplace, it makes employees and employers more unsure of the work environment, and it is expensive."

The sponsor of the House bill that would amend the court ruling, Rep. Jerry Nolte, R-Gladstone, said Robinson v. Hooker has made it more difficult for people to function in their job and will have workers constantly wondering whether or not they will be sued for an accident.

"If we don't resolve it this legislative year then I am afraid we are going to have a lot of problems as far as litigation and an additional disruption of the workplace," Nolte said.

The new bill will protect employees and employers from a kind of double-dipping of lawsuits by covering the accidents made by a co-worker.

"The effort is to sharpen the focus on what is and what is not covered," Nolte said.

Fisher said he is confident that the new legislation will pass. He said that the new bills are only revisions that are meant to clarify definitions and interpretations intended for workers' compensation.

"This isn't rocket science," Fisher said. "It is just clarifying the intent of the General Assembly for the last 80 years."