The face of tort reform, past, present and future can be found in Workers Compensation.

Some of the younger lawyers (and many of the corporate executives, insurance lawyers, and corporate counsel) may have forgotten that once upon a time the workers compensation program was implemented as a tort reform measure.  The basic purpose was to reasonably compensate injured workers for work-related accidents without consideration of fault. 

The workers compensation system would take care of medicals and wages in a reasonably adequate manner.  Essentially the workers gave up certain elements of damages but no longer had to show a co-worker or employer was negligent or at fault for the injuries.  If it happened on the job, you got taken care of.

Consequently, the adequacy of this compensation and the procedures employed by the employers to "take care" of their own employees and their families should be held to the highest standard of care.   

The value of a  life lost at work has proven to have much less than the value of that life lost on a highway or from corporate negligence to a consumer.  There is compensation for dependents, and there is compensation in a lump sum of $50,000 should death occur within 4 years of injury (the amount has increased some due to inflation).  Click here for statute.

Therefore, it is disturbing to watch and witness a system of supportive examiners who ignore the workers' injuries and push them back to work.

It is disturbing to see a system, where the worker is injured in a car accident and deprived of the ease of receiving reparations benefits for his medical treatment by selecting his own physicians and treatment options (rather than the managed care of the workers compensation system) because workers compensation is primary.

It is disturbing to see where the employer can violate safety rules and be grossly negligent but nonetheless be immune from suit by the employee and the violation of state safety regulations only permits a small multiplier of the damages.

I know of one case where an employer at the airport lost his life when he was inadequately trained in the proper procedures of removing tires from split rims.  Air remaining in the rim could cause the rim to explode like a bomb making the rim an flying projectile.  In this case, the worker sustained a crushing chest wound, and suffered immensely over the next hour until he died.

At the heart of the employer's negligence (or gross negligence) was a desire to save the tires and thus a few dollars by recycling the tires.  Rather than drill a large hole in the tire before changing, they opted for another less destructive method in violation of manufacturer's standards.  Air remained in the tire, and it blew up in his face.

The employee's family was entitled to a recovery, but since his children were adults and he had no wife, there were no benefits to be paid to the survivors other than the lump sum death benefits which were nominal.  Worse  yet, the employer's insurance company disputed the safety violation multiplier requiring the worker's estate to file and an administrative law judge awarding the multiplier.  And the story gets even worse, the administrative fine for the safety violation was minimal.

Now that's a sad face behind tort reform in the face of deny, delay, and don't pay.

That is why the bill making it easier to hold the employer accountable for their grossly negligent acts needs to be passed.  Industrial accidents prompted by corporate malfeasance and greed are not accidents but something less than criminal in the eyes of the law but not the eyes of the surviving families.

The piece of legislation that needs to change is found in KRS 342.690.

The exemption from liability given an employer by this section shall also extend to such employer's carrier and to all employees, officers or directors of such employer or carrier, provided the exemption from liability given an employee, officer or director or an employer or carrier shall not apply in any case where the injury or death is proximately caused by the intentional acts, violation of a safety regulation, or gross negligence willful and unprovoked physical aggression of such employer, employee, officer or director.

If the actions of the employer would entitle the injured worker to punitive damages, except for the fact, he or she was in the scope of employment, then the employer should be liable. 

With that said, it is unfortunate that HB 398  which had been offered by Rep. J.R. Gray, D, Benton has now been taken off the legislative table this session.  HR 398 would have allowed for a cause of action outside Worker’s Compensation if the act causing the employee's injury was the result of the violation of safety standards or laws, recklessness or gross negligence.  Under current law, an employer must intend to kill an employee before they can be held accountable outside the worker’s comp system.  Thisd bill would have alleviated that obstacle and require employers to maintain safe workplaces. 

Although HB 398 was passed out of committee last week, the business community raised concerns about it, and the bill was recommitted to Labor & Industry Committee.  I understand  Rep. Gray has pledged to study the issue during the interim.

If you wish to contact your legislators about any concerns, please call (502) 564-8100 to contact them. 

You may also leave a message on the message line at 1-800-372-7181. 

The Session only has eight days left (including the two set aside to deal with gubernatorial vetoes).      

Comments

[Scott Scheynost]

Any attorney that represents injured workers in KY knows that everything in ths artcle is sadly true. But, the legislature seems more interested in lowering costs for insurance carriers, than making the system fair for injured workers.