Wishing For Comp

It always is interesting how business complains so much about workers' compensation, but how employers clamber to invoke its exclusive remedy characteristics when they feel the heat of civil litigation.

It's even more interesting when a business wants to deflect liability to other companies on the grounds that the injured were the other companies' employees.

A U.S. district court judge in Texas denied a motion by BP Products North America for partial summary judgment in a case stemming from an alleged chemical release over a number of days at a Texas City BP refinery in November 2011.

315 of the workers were contractors and subcontractors at the BP refinery at the time of the chemical release. They’re part of a group of more than 500 plaintiffs who have brought various tort claims against BP in the case of Samuel Charles Boyd, et al. v. BP Products North America.

The ruling said that BP carried the burden of proof on all elements of a workers’ compensation defense; it would have to prove that each contractor plaintiff had workers’ compensation insurance coverage and that the injuries sustained were work-related. Proving that the injuries were work-related was where BP’s motion failed, the judge wrote.

“Defendant’s Motion for Partial Summary Judgment included extensive evidence that the Contractor Plaintiffs were covered by workers’ compensation insurance,” the ruling states. “However, Defendant provided the Court with no evidence that the Contractor Plaintiffs’ alleged injuries were work-related.”

Texas City BP refinery explosion aftermath.

The suit against BP generally divides the plaintiffs into two groups: workers, who were either employed at the BP refinery or a nearby Dow Chemical plant; and “community members” who lived near the plant. According to reports, the plaintiffs in the case are seeking more than $1 billion in damages. In February 2013, BP completed the sale of the Texas City plant to Marathon Petroleum.

In Texas workers' compensation insurance is elective.

Mid last year, the Texas Tribune ran a series, "Hurting to Work." The series used vignettes and anecdotes to demonstrate how the lack of a workers' compensation mandate victimized the state's workers, and in particular those most vulnerable: low wage, manual labor workers.

That series drew a lot of criticism from the business community because, they said, statistics were either incorrect or were misinterpreted. Labor generally praised the series for drawing attention to a sad aspect of the Texas economy.

What the series really did was to highlight how workers' compensation can be an effective social safety net for injured workers and can adequately spread the risk of damaging liability.

And the bottom line is that business can't have the proverbial cake and eat it too - there is an election in Texas that can't be taken lightly: be insured for work comp, or don't. And if not insured then prepare to face the longer term liability of paying for a defense and potentially still losing and having to pay damages.

In the meantime there's a broad swath of the workforce that is left without any expedient remedy (regardless of adequacy).

The BP case illustrates this conflict brilliantly - facing a huge liability the company wished the matter was the exclusive province of workers' compensation, or at least that its contractors and subcontractors were thusly responsible.

In the meantime the victims, workers and other people in the community that incurred injuries or illnesses from the spill, are left to cope on their own and probably won't ever recover physically or financially from the disaster.