Editorial Response
 by Chris Archer

I read the article drafted by attorney Michael H. Maguire, first published in the Southeast Missourian and reprinted in an earlier edition of this newsletter, and wish to respond to the same. I hope the writing of that article was therapeutic for Mr. Maguire as it contained little factual information.

First, the suggestion that the passing of SB1 and 130 somehow breaks the promise made between business and workers with the introduction of the workers’ compensation system or that the “workers got the shaft,” is a bit hard to swallow. The intent of the legislature was certainly to return the system to one of common sense. The best example of this are the three court decisions that were chosen to be abrogated in section 287.020.10. Kasl, Drewes, and Bennett were all decisions that had extended liability to situations that were not contemplated by most practitioners, let alone the legislature, as being compensable cases. Bennett itself was denied by ALJ Dierkes and that denial was affirmed by Acting Chairman Madigan. You can certainly ask attorney Truman Allan who represented Ms. Bennett for his thoughts on the case and he’ll tell you the Western District was correct; but he can’t do it without smiling.

The statistics from both NCCI from 2004 and the audit performed by the WCRI point to a few glaring problems that were attempted to be fixed by SB1 and 130. We have one of the highest permanent partial total costs of the region. The average severity of injuries is higher even if you take into account the higher maximum PPD rate. Certainly part of this can be explained by the older average workforce that is a fact nationwide.

Missouri also has by far the highest average frequency of PPD claims. It is double some of our neighbors and twice the country wide average. If you file a claim for compensation for a compensable accident in Missouri, you will receive an award or settlement for permanent partial disability. The system, by custom, awards disability as if it is a right not a matter of true proof.

The cost of medical continues to climb at an average annual rate of 8%. Missouri is in a declining minority of states that don’t regulate with a fee schedule. Unfortunately, nothing in the bill addressed this problem.

The good news is that Missouri is enjoying a second year of job growth. Frequency of work related injuries has been trending down as well. Safety programs and a shift from manufacturing to a service economy also helped to reduce frequency.

Attorney representation is the highest in the region with the St. Louis area being the highest in the state. The suggestion made by attorney Maguire that the provision dealing with attorney’s fees is at all unfair is laughable. I’d suggest he read the passed version. There is no limit contained in the section as to attorney’s fees that was originally in the bill. Is there anyone out there who wants to argue that attorney’s fees should not be fair and reasonable?

There are certainly some changes that still need to be made with the Act as modified by SB1 and 130. The notice provision for occupational diseases that requires notice within thirty days of diagnosis appears harsh as some claimants may not realize that their work is a factor at all in their diagnosed condition. This section in 287.420 is inconsistent with section 287.127 that spells out the warning required to be posted by Employers. There are certainly other examples as well.

I personally have several regrets with SB1 and 130. I am saddened at the loss of some good people who have served as Legal Advisors. Although I have battled some of them on their recommendations, most of these attorneys have served with honor. The ALJ accountability language, that was thankfully watered down to a great extent in the last days, is still of concern for its potential in making the system more rather than less political. Although ALJs are certainly in the executive branch of state government, they oversee and approve millions of dollars each year in the form of compensation for injured workers making them more judicial and more influential than judges in the judiciary. These attorneys all took these positions over other opportunities, perhaps for the security of a lifetime appointment, not to mention the pension that was also changed.

I harbor no ill will toward Mr. Maguire and will volunteer my counseling skills if he has a need. I have honed them with my colleagues in St. Louis with similar views who spout similar cries of unfairness, fearing the unknown and change. May I suggest, Mr. Maguire, a deep breath and a certain fine St. Louis beverage?