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Labor groups file lawsuit against Nixon

A legal challenge to the new workers’ compensation law claims the law violates constitutional rights of workers.

More than 70 labor groups from across Missouri filed a lawsuit against Attorney General Jay Nixon as representative of the state on Thursday in Cole County. The law suit asks that a judge determine whether or not the state violated workers’ rights in March when the governor signed Senate Bill 1 into law.

The groups argue that the new law’s restrictions on workers’ compensation claims make it easier for employers to avoid compensating employees who are injured on the job. The lawsuit alleges that the new law unconstitutionally restricts coverage for work-related injuries without restoring common law rights to sue. The law also violates the original agreement between workers and employers that served as the foundation of workers’ compensation coverage in Missouri, according to the group’s petition for a declaratory judgment.

&#8220This also provides the employer with a number of defenses to the remaining workers’ comp claims, giving them rights that are not available to other defendants in civil litigation,” said Philip M. Hess of St. Louis, one of the attorneys for the plaintiffs. &#8220In more than one instance in this law we have statutized age discrimination.”

Gov. Matt Blunt in March signed into law Senate Bill 1 in response to employers’ complaints about the high cost of workers’ compensation insurance and their desire for stricter laws that curb fraudulent claims. The new law took effect Aug. 28.

&#8220If we didn’t do it we would continue to lose jobs in Missouri,” said State Sen. Kevin Engler, R-Farmington. &#8220We want to make sure workers are compensated for injuries incurred on the job, but the fraud was driving (employer) costs up.”

Attorney General Jay Nixon, who was named in the suit as representative of the state, has 30 days to respond. Nixon’s spokesman Scott Holste said Nixon had no comment about the suit at this time.

The lawsuit asks that a judge rule on the constitutionality of the law. Unless an agreement can be made between the two sides, they will argue their points before a judge, who will make a determination. Most likely, that decision will be challenged by the losing side and eventually the suit would go to the Missouri Supreme Court, Hess theorized.

A committee of seven Missouri attorneys are working with the lead counsel on the case, the Center for Constitutional Litigation, P.C. in Washington, D.C. The attorneys are considering a request for a restraining order that, if granted, would essentially put the law on hold until a decision was made. Attorneys are expected to decide within two weeks if they want to request the restraining order, Hess said.

The basis of our laws is &#8220common law,” which the nation’s founders brought here from Europe. Under that law, workers could sue their employers if they were injured at work. If the injury was caused by a co-worker, the injured party could sue the co-worker and the employer, said Kenneth Seufert, a Farmington attorney who handles workers’ compensation litigation.

The industrial revolution, with its increase in factories and mechanical equipment, increased the potential for employees to be injured on the job. In 1926, workers and employers came to an agreement that ended that common law right for workers in return for workman’s compensation benefits for work-related injuries.

&#8220Rather that go to court, workers wanted quick medical treatment, sick pay and compensation for disabilities,” Seufert said. &#8220They were not entitled to that under common law.”

Employees gave up their right to sue in return for the benefits. The intent was clear, Seufert and Hess said: If the injury occurred at work, it was covered.

&#8220The act contained a number of points, one being that recovery be made without determination of fault,” Hess said. &#8220The law was to be applied and interpreted on a simple summary and uncomplicated matter without regard to technical rules. That has been deleted.”

The lawsuit claims that the restrictions of the new law reduces the compensation rights of workers to the point that the current administrative system for appeals is not an adequate alternative to suing in court.

Under the new law, employers are not required to post the steps to take in order for a claim to be covered. However, if those steps are not followed precisely, the claim could be thrown out, Seufert said.

&#8220Who wants to work in a place where if they get hurt on the job, and don’t cross their T’s and dot their I’s they won’t get their benefits” he said. &#8220These are workers, not professional litigators.”

Hess contends that the new law removes a previous restriction that prevented employers from changing an employee’s status to &#8220private contractor” to remove the employer from workers’ compensation responsibility. It also reduces or removes employers from liability for work related injuries that are a result of cumulative trauma or is tied to the aging process, he said.

Spokesmen for a half dozen area companies declined to comment on the lawsuit or were unavailable for comment on Thursday. However, Paul Brockmiller, owner of Brockmiller Construction, said the law is necessary to eliminate frivolous or fraudulent compensation claims.

&#8220It forces the worker to have to adhere to safety policies that he’s been instructed in,” Brockmiller said. &#8220It puts the responsibility on the worker. The way it was before, you could do everything in the world, but if they don’t follow the safety program and get hurt, the employer still had to cover the injury.”

Rick Whaley, a paramedic for St. Francois County Ambulance District, is the local union president of the International Association of Firefighter Local 3705. He said the new law is particularly harmful for firefighters, police and other emergency workers.

&#8220We’re in a high profile, dangerous job, and we can be hurt at any time,” he said. &#8220Under the new law, if we get hurt, we can be on our own.”

State Rep. Steve Tilley, R-Perryville, believes the courts will uphold the law.

&#8220We debated the constitutionality on the House floor,” he said. &#8220We listened to legal experts and a majority of the House members felt it was constitutional.”

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