New law breaks promises made when workers' comp began

Wednesday, March 23, 2005

By the time you read this, the governor will probably have signed the workers' compensation bill. His signature will mark the betrayal of working people in Missouri who were made a promise nearly 80 years ago that they would be treated fairly if they agreed to accept workers' compensation.

Keep in mind this is not a needed change. The statistics from our Division of Workers' Compensation show that insurance companies are making record returns on their premiums, which means they are not having to pay out much.

It is also not an attempt to be friendly to employers, as the Missouri Chamber of Commerce and Industry argues, although any time the chamber speaks up when you are talking about people's rights -- look out. If that were the case, this change could have been handled like it has since I started practicing law in Missouri in 1986: by getting the two sides together and coming up with a solution. For the last three years, those representing employees have tried to get insurance companies and employers to work on their complaints. They refused to do anything meaningful, biding their time until they had control of the legislature and the governor.

A little history is worth remembering. When the workers' comp system was set up -- in exchange for having a required mechanism that would provide medical care if you were hurt doing your job, provide some money if you could not work and provide payments if you had some disability as a result of your injuries -- workers gave up certain rights:

1. They lost their right to sue their employers in regular court.

2. They lost the right to pick the doctor who would treat them -- as the employer (read that to mean insurance company) gets to pick.

3. Artificial caps were placed on the amounts a worker could receive for weekly benefits and for permanency benefits.

4. Employees could not be awarded any damages for just pain and suffering, although someone who loses a hand or a leg or suffers any kind of work injury will readily tell you it hurts like hell.

Part of the promise made so many years ago was a presumption in favor of the employee, meaning that if all things were equal, meaning it was a tie on the proof, that the decision should go to the worker. Employers knew that and signed off on that when they set up this system. Now because of this manufactured business-unfriendly crisis, that presumption is gone. The burden of proof for a worker has been changed from the work being a substantial factor of the injury to the prevailing factor.

Administrative law judges have faithfully followed the promise and interpreted the law, and because businesses don't like what that means, they are putting politics into the process. Those judges will now be reviewed every two years, and if they don't come up to standards, which will be determined by -- guess who -- pro-employer types, then they are out of a job.

Never mind that employers have two bites of the apple if they don't like a decision of the judge. They get to appeal to the Labor and Industrial Relations Commission. And if that does not work, they can appeal to the Court of Appeals. I consider this provision alone character assassination of the fine men and women who routinely handle thousands of cases as judges and legal advisors with great intelligence and diligence.

Part of what this cadre has done is to change lawyers' fees. Yes, I am an lawyer. And, yes, I handle cases of employees. I admit I will be looking at cases more closely, because the new law says if the company makes an offer and it is rejected, then my fee can only be a percentage of the amount I recover above that offer. If I take a case and it takes little or no work, I have no problem with that theory. However, if the usual case occurs and the employer makes the case go on for months, requiring extra work and I have to try the case, then it is not fair to me or to the employee to limit that award.

I believe, and always have, that the law is supposed to be fair -- not too much for one side or the other. I know the employers and their cronies in the legislature have not given back to employees their rights they gave up when they created workers' comp. The promise has been broken, and the owners get all the benefits. The workers get the shaft.

Don't be surprised after all these changes go into effect that nothing happens to the premiums paid by employees. I have said all along that the cyclical nature of insurance companies investing premiums in the stock market has more to do with higher premiums than any $6-an-hour line worker filing a claim for carpal tunnel syndrome.

If you think this is wrong and unfair to the working man and woman, let the governor and our local senator and representatives and the lieutenant governor know, because they all supported this promise breaking.

Michael H. Maguire of Cape Girardeau is a lawyer.

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