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ANALYSIS: One year and waiting on Missouri workers' compensation case

Sunday, December 7, 2008 | 5:43 p.m. CST; updated 11:10 p.m. CST, Sunday, December 7, 2008

JEFFERSON CITY — It was one week after Thanksgiving — one year ago — when Missouri's seven Supreme Court judges heard arguments on the constitutionality of a law making it harder to win workers' compensation benefits.

Another Thanksgiving has passed, and the judges apparently are still pondering what to do.

Injured workers, employers and attorneys are anxiously waiting.

The one-year wait is the longest amount of time the court has spent deciding a case in recent years.

In fact, the state Supreme Court already has waited four times as long as its average span from hearing arguments to issuing opinions, according to an Associated Press analysis of 182 opinions issued by the court in 2007 and 2008.

Why is this particular case taking so long?

The Supreme Court won't say.

After listening publicly to legal arguments, the judges convene privately to discuss a case and assign someone to write an opinion. But they don't reveal the assigned author until the ruling is issued. And they don't provide updates on their deliberations.

Beth Riggert, an attorney who serves as a spokeswoman for the court, noted that the cases that come before the state high court "tend to involve particularly difficult legal issues."

"While the court strives to decide cases as expeditiously as possible, the court will take as much time as it believes it needs to give proper consideration to all the legal issues the parties raise in a case, to reach the decision the law requires, and to explain the reasons for that decision in a clear and thorough manner," Riggert said in a written response to questions about the delay in the workers' compensation case.

Missouri's workers' compensation system was created in 1926 as a way to resolve injury claims through administrative proceedings rather than the courts. The intent was to provide aid more quickly to injured employees while sparing employers from the costs and uncertainties of circuit court trials.

At issue is a 2005 law that was a priority for Republican Gov. Matt Blunt and the Republican-led legislature. They claimed the workers' compensation system had become so tilted against employers that it was hurting Missouri's economy.

Among other things, the 2005 law required workers to show a "specific event during a single work shift" to be compensated for an accident, no longer allowing a "series of events" to qualify. It also required the accident to be "the prevailing factor" in an injury, instead of the previously lesser standard of a person's employment as "a substantial factor."

During last year's arguments, labor attorney Alan Mandel of St. Louis described the law as "the most draconian statute in the country." He denounced various provisions as "egregious," ''horrendous" and "marching backwards into the 19th century."

By contrast, business attorney Marc Ellinger of Jefferson City argued that the 2005 law merely returned a proper balance between employers and employees to a system that had been gradually skewed toward employees by previous court rulings.

In separate interviews Friday, Mandel and Ellinger said they have not been asked by the judges to provide additional information, nor have they received any indication from the court as to what's taking so long.

Ellinger said he expected a ruling last spring, then last summer.

"It's the longest I've ever seen a case in my career sit in front of the Supreme Court," said Ellinger, who has practiced law since 1992.

Mandel, who expressed no problem with the delay, said he would like to believe it's due to some intense, intellectual deliberation among the judges over an extremely complex legal matter.

"Among the lawyers who do workers' compensation work in the state of Missouri, it's been the subject of a lot of speculation," Mandel said.

He said the delay has consequences for some injured Missourians who are waiting upon the state Supreme Court's ruling to help them decide whether to pursue their cases through the workers' compensation system or circuit court.

In the meantime, the attorneys have sharpened their rhetoric.

"What's at stake is where this state goes in protecting the rights of workers in terms of their injuries," Mandel said. "Do we really want to be China? Do we really want to treat the working people of this state like a disposable commodity?"

Business groups contend workers actually will be worse off if the state Supreme Court strikes down the more stringent criteria for receiving workers' compensation benefits. That's because they say the cost of workers' compensation insurance likely would rise, forcing businesses to cut payroll.

What's at stake?

"The economic viability of the workers' compensation system in Missouri and, frankly in the current economic climate, employment in Missouri," Ellinger said.

The state Supreme Court's next scheduled date to hand down opinions is Dec. 16. There is no indication, of course, whether the workers' compensation case will be decided then.


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