When workers' compensation acts to shield an employer from egregious conduct, then the premise of the system needs to be reconsidered.
In Nebraska, a worker was asphyxiated in a grain bin, 58 feet tall and was 21.5 feet across, after his supervisor asked him to go into a grain bin and shovel grain into the center of the bin's conical base to facilitate the removal of the grain.
The employer was slapped on the hands by OSHA for several safety violations including: no lifeline or any other equipment that could prevent the worker from being buried; keeping an auger running in the bin while the worker was within it; failure to maintain communication with the worker while he was within the bin (the supervisor walked away and didn't return until the worker was already dead).
For this, the Nebraska appellate court said ... "too bad worker's family, but Nebraska state law would rather reward employers for bad behavior than compensate families adequately for the loss of a bread-winner or penalize employers for knowing violation of simple, effective, safety parameters."
[The court didn't really say that - I put it in quotes for sarcasm.]
The court DID say that, "knowingly ordering employees to perform an extremely dangerous job, willfully failing to furnish a safe place to work, willfully violating a safety statute, or withholding information about worksite hazards, still falls short of the kind of actual intention to injure that robs the injury of accidental character."
The court went on to uphold the constitutional validity of the act, explaining that the Legislature had a rational basis for electing to differentiate between intentional tort victims who are employees and intentional tort victims who are not employees.
This is not the bargain that was negotiated 100 years ago.
I understand that "the law" is "the law" and that workers' compensation is an exclusive remedy. I get that.
At the same time there also must be an appropriate remedy when an employer willfully (as noted by the court) ignores basic safety practices and knowingly endangers its employees beyond an OSHA wrist slap.
Last week I wrote a column on personal responsibility.
Chuck Holliday wrote in response:
"If you want to talk about personal responsibility, let's talk about corporations taking personal responsibility for their actions. You seem to forget that in many states, the WC system is a 'bargain,' if you can call it that, in which the employee has given up the right to sue his or her employer in tort in return for a no-fault system. Many employees would gladly give up the pittance they receive in no-fault benefits for the ability to sue their employer for its negligence in creating and maintaining an unsafe work environment. [In this Nebraska case, I might add, knowingly and willfully - this was intentional behavior as noted by the court.]
"I think we could turn back the clock on the 'wussification' of America a lot if we required companies to take personal responsibility for their actions and bear the full cost for the injuries they cause. Let's get rid of arbitrary caps on damages, forced arbitration, and administrative appeals of WC decisions. Anyone familiar with WC has to agree that workers continue to get shafted more under each new edition of the AMA Guides. Every year the number of injuries that qualify as WC injuries decreases, which it sounds like the new edition of the DSM will do, too.
"The real 'wussification' of this country is the trend to protect 'persons' whose names end in 'inc' or 'LLC' from taking responsibility for their actions."
In particular with regard to this Nebraska appellate court opinion, I couldn't agree more with Mr. Holliday.
The workers' compensation system fails employees, and their families, when it (and weak OSHA penalties) allows an employer to get off cheap in the death of another human being.
Every insurance category denies coverage to the policy holder where the damage is caused intentionally by the beneficiary.
That this case is even considered "accidental" is not just a miscarriage of justice, but shows callous disregard for the value of human life.
To read the court's opinion in Estate of Teague v. Crossroads Cooperative Association, No. S-12-702, 05/31/2013, click here.
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