Tuesday, May 1, 2012

Not Protected, Not Fundamental

Workers' compensation claimants are not a protected class, nor are workers' compensation benefits a fundamental right.

That's what the Colorado Court of Appeals said when a disabled veteran challenged offsets to his workers' compensation award.

Robert Zerba served in the U.S. military for 28 years, retiring from duty in 1989. After leaving the military, Zerba worked for 13 years as a receiving manager for K-Mart until the age of 62, when he began drawing Social Security benefits.

Zerba later began supplementing his income from his military retirement and Social Security with a part-time job at a King Soopers grocery store.

In April 2009, he sustained injuries to his back when a rack of milk fell on him, pinning him to the floor.

An administrative law judge determined that Zerba was permanently and totally disabled by the accident and awarded him benefits.

King Soopers did not contest the award of benefits, but asked that the amount be reduced by the amount of Social Security and military retirement benefits Zerba was receiving under the version of Colorado Revised Statutes Section 8-42-103(1)(c)(I) that existed at the time.

The judge granted the offset for Zerba's Social Security income, but not as to his military retirement benefits. The Industrial Claim Appeals Office affirmed the judge's ruling.

Zerba appealed, arguing that Section 8-42-103(1)(c)(I) violated his right to equal protection under the 14th Amendment of the U.S. Constitution. King Soopers cross-appealed the denial of an offset for Zerba's military retirement benefits, contending that the military pension was effectively the same as other payments for which offsets are allowed and should not be treated differently.

Zerba claimed that allowing an employer to reduce an injured worker's benefits based on his Social Security income disproportionately harmed elderly and poor workers by depriving them of the full sum they were receiving when they supplemented their benefits with income.

Both appellate arguments failed.

The Court said that classifications based on age do not create a suspect class, and since Zerba did not provide any evidence that he was poor he could not raise an argument on behalf of a class to which he could not prove to be a part.

Likewise, since King Soopers was not the employer providing Zerba with the military retirement benefits,  it was not entitled to an offset.

Workers' compensation has been with us now for around 100 years. It is a creature of statutory creation, having no basis in United States Constitutional fundamentals. Some state constitutions provide for this right, but those are not held to the same standard as The Constitution.

People both inside and outside the industry forget this. Workers' compensation has such an entitlement aura about it that people tend to think of the system as granting "rights" as in either property or liberty.

But workers' compensation is not about either of these. It is a system of convenience for employers and employees. 

Workers' compensation provides benefits applicable upon the occasion of an event - work injury or disease to an employee.

The system spreads the risk of work injury or disease over the broad base of the other group of beneficiaries - employers.

Many tend to think of these benefits as entitlements - and perhaps they are, upon meeting qualifying elements. And workers' compensation law does grant rights - again, upon meeting qualifying elements.

The distinction as pointed out by the Colorado Court of Appeals is that injured workers are not a suspect class and workers' compensation benefits are not a fundamental right. They are simply creatures of statutory grant that do not amount to property or liberty.

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