Revisions to workers' compensation under consideration in Missouri statehouse

Wednesday, February 9, 2011 | 8:51 p.m. CST; updated 12:17 p.m. CST, Monday, February 28, 2011

JEFFERSON CITY — Missouri business organizations are pushing lawmakers for what might seem like 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 businesses 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 judicial rulings have taken that away in recent years.

"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 legislative changes to workers' compensation law in 2005 made it be that only "accidents" were covered by the system and that occupational diseases were not.

Businesses are concerned that excluding occupational diseases 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 occupational diseases that result from exposure to toxic chemicals or substances, such as mesothelioma.

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

The Senate's proposed bill, though, explicitly excludes toxic exposure from workers' compensation.

The bill's sponsor, Sen. Jack Goodman, R-Mt. Vernon, said those diseases were excluded to ensure 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," Fisher said. "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 is intended to prevent future court rulings similar to Robinson v. Hooker, Rep. Jerry Nolte, R-Gladstone, said the ruling has made it more difficult for people to function in their jobs 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 proposed bill would protect employees and employers from a kind of double-dipping of lawsuits by covering the accidents caused 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 proposed legislation will pass. He said the proposed 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."

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