Tort reform at the turn of the century was the concept of workers compensation in which employees who were hurt on the job received compensation regardless of fault or negligence. The price they paid was giving up their rights to sue their employers and co-workers for negligence and intentional acts that caused them injury and harm.
Well, many have forgotten the purpose of the workers compensation movement as a progressive move; and the sad state of affairs of the price paid and inadequate compensation received is shown in this Courier-Journal story by Andrew Wolfson.
We previously posted a story on this subject and proposed legislation on March 6, 2007 entitled The face of tort reform, past, present and future can be found in Workers Compensation. Mr. Wolfson's story put a human face to the law.
Workers' comp left amputee tough choice [click on heading for entire story at cj]William D. "Billy" Parker lost both arms in a drywall shredder. Now he wonders if he should take the meager benefits [available from workers compensation which] available or sue. * * *
Now, four months after William D. "Billy" Parker lost both his arms in a drywall shredder at a Jeffersontown machine manufacturing company, he says the thing he misses most is his sense of touch – the ability to feel his son Cody when he gives him a hug.
Parker, 39, has learned to use a prosthetic left arm to feed himself and put on his clothes. He uses his feet to open doors and to change channels on an oversized remote control he keeps on his living room floor.* * *Parker also faces a vexing dilemma in deciding what path to pursue for compensation for his catastrophic injuries -- money he says he needs to raise Cody and pay for a house adapted to his needs.Should he take the meager benefits available from workers' compensation -- possibly as little as $546 a week, or two-thirds of his pay? Those payments would never rise with inflation and would be cut off when he is eligible for Social Security.Or should he risk getting nothing at all by rejecting workers' comp and suing his employer ...?
Under Kentucky workers' comp law, an employee can only successfully sue his employer for a workplace injury if he can prove his company deliberately intended for him to be harmed.And experts on workers' compensation say no employee has ever been able to meet that burden, which has been described as harder than proving intentional murder.In fact, several specialists say, in Kentucky, an employer probably would have to shoot a worker for the employee to recover damages against the company in court.* * *Parker and the company blame each other and offer completely different accounts of what occurred.
* * *Law on lawsuits
About 1.7 million employees and 80,000 employers are covered under Kentucky's workers' comp law, which is designed to quickly provide injured employees with lost wages and medical care, even if they were at fault.In exchange for modest benefits, employees give up their right to sue. Employers are shielded from litigation that might drive them out of business.A dozen states allow injured workers to sue their employer if there is a "substantial certainty" or similar evidence that the employer required them to do a task knowing it would harm them, according to the authoritative book on the subject, Larson's Workers' Compensation.But in Kentucky, the law is so strict, the Kentucky Supreme Court held in 2004, that knowingly putting an employee in harm's way isn't enough to win a lawsuit, even if the employer knew it might kill the worker.Ruling 4-3, the court affirmed the dismissal of a $2.7 million jury verdict returned in Hopkins County for the estate of a 21-year-old construction worker who suffocated when he was buried alive in a trench cave-in.The evidence showed that his employer knew that both the collapse -- and death -- were probable but decided not to properly shore the trench so it could avoid costly penalties for finishing the project late.Dissenting from the decision, Chief Justice Joseph Lambert said the company had "purposely" placed its worker in a "manifestly unsafe environment" and that the court's decision had in effect "immunized" employers for egregious conduct.Lawyers for insurance carriers say Kentucky law now allows companies to be punished for intentionally violating OSHA rules -- and that the law is skewed toward employees: If a company breaks the rules, the worker's award is increased 30 percent, but if an employee does, his award is only reduced by 15 percent.But advocates for workers, such as state Rep. J.R. Gray, D-Benton, who sponsored an unsuccessful bill this year to ease the rules on suing employers, said there needs to be more of a deterrent against outrageous workplace practices."Employers who have total disregard for employees," Gray said, "should have to pay the price for it in civil courts."