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Bills jeopardize workers' compensation law

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By MARTIN DYCKMAN, Times Associate Editor

© St. Petersburg Times
published March 3, 2002

TALLAHASSEE -- A New York judge once wrote that "No man's life, liberty or property are safe when the legislature is in session." Here, at the moment, everyone's property is perfectly safe and few new criminal laws are hatching. It's your life that's in danger, if you work for the sort of employer who wouldn't mind taking his chances with it.

The big business and insurance lobbies have joined forces again -- it's always bad news for the public when that happens -- to push an 80-page bill overhauling the workers' compensation law. Most of the provisions intend less money to be spent on workers who are injured or killed on the job. A few are good, but the bad in this batch hugely outweighs them.

Here's the worst of it: Unless your employer "actually intended" your injury or death, you could no longer sue for anything more than the limited benefits that workers' compensation prescribes. "Proof of intent," according to the bill, "includes only evidence of a deliberate and knowing intent to harm. . . ."

Imagine trying to prove that.

This stinker is the consequence of a chemical plant explosion that killed one worker, Paul Turner, and horribly injured another, James Creighton, at a Gainesville chemical plant in November 1991. Turner left a son whose compensation would have been capped at $100,000. Creighton would have been paid two-thirds his wages plus medical expenses.

The victims sued for more. They got thrown out of court. Workers' compensation, the original no-fault law, normally shields an employer who is insured from being sued for wrongful death or injury. In exchange, the worker gets the advantage of "strict liability and the rapid recovery of benefits," as our Supreme Court has put it. (The liability is no longer strict and the recovery is hardly rapid, but we're getting ahead of the story.)

However, the law also allows conventional tort lawsuits when an employer has been grossly careless.

The case of Turner, et al, vs. PCR, Inc., became one of those. The Supreme Court ruled 7-0 that there was sufficient evidence to show the chemical company had the men process a dangerously explosive chemical in violation of its own established safety procedures. The evidence, said the court, could show that "by putting the concern for profits first, PCR ignored the safety risks" and attempted to satisfy a large contract "by using an unsuited existing reaction facility that lacked the proper safety instruments."

The "reaction facility" was a common propane tank without a pressure valve. At the Supreme Court hearing, Gainesville lawyer Jack Fine said Turner had been instructed to shake the tank manually.

It was, he said, "like sending someone in to shake a vial of nitroglycerine."

The court sent the case back for trial. The company settled for undisclosed damages.

Justice Harry Anstead's decision, a slam-dunk for fairness and common sense, reaffirmed "the existence of an intentional tort exception to an employer's immunity . . . in circumstances where injury or death is objectively "substantially certain' to occur.

"To hold otherwise would virtually encourage a practice of "willful blindness' on the part of employers who could ignore conditions that under an objective test would be found to be dangerous, and later claim lack of subjective knowledge or intent to harm an employee."

This humane ruling is what the House Insurance Committee, dancing to the strings of its campaign contributors, has already voted to set aside.

To be sued, an employer would have to be as malicious a killer as Ted Bundy was.

"You're giving an employer a license to do whatever the hell they want, with immunity," says Dorothy Sims, a workers' compensation attorney who represented Creighton. "I can't for the life of me understand why anybody would want to encourage behavior that's substantially likely to cause harm. We had one employer tell a six-buck an hour employee to put his hand in a moving concrete mixer, to pull out a rock. He lost part of a hand over two extra seconds . . ."

Space prohibits listing everything that's wrong with this industry-driven legislation. The next worst would limit a worker's attorney's fees to $1,500 (HB 1947) or $5,000 (SB 2304) no matter how often or how long the insurance carrier refuses or stalls claims for medical care and lost wages. This is a big issue, too. The longer the time between the payment of a premium and the payment of a claim, the more profit the insurance company makes from investing the money. Best of all is when the poor injured wretches just give up, which will happen more often once it isn't worth a lawyer's time to keep trying.

Sims tells me a really stubborn company can force a lawyer to put in $20,000 worth of work. So if fees are capped, only the most altruistic insurance company -- assuming there is such a thing -- will approve claims swiftly.

Both bills face major committee hearings Monday. Sen. Jack Latvala, R-Palm Harbor, the Senate sponsor, promises that the Banking and Insurance Committee will make a better bill of it than the version sponsored by House Insurance Chair Leslie Waters, R-Largo. A much, much better bill, one would hope.

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