When Workers Comp Gets Complicated The Texas Supreme Court may take the unusual step of reconsidering one of its decisions. It involves a workers' compensation case. The resolution of the case has enraged the plaintiff's lawyers, defense lawyers, Republicans and Democrats.
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When Workers Comp Gets Complicated

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When Workers Comp Gets Complicated


And to a legal and political controversy in Texas over a state Supreme Court ruling there. The ruling strips workers who are injured on the job of their right to sue negligent employers.


That decision has sparked a lot of protests from both Republicans and Democrats and attorneys on both sides. In fact, the outcry has been so strong that the Texas Supreme Court, in a highly unusual move, may rethink its decision. NPR's Wade Goodwyn reports.

WADE GOODWYN: It was an overcast day in late February when contract worker Jose Herrera climbed into his harness, ascended a scaffold, and began to work on a crude vacuum unit at the CITGO refinery in Corpus Christi. The unit was about to be shut down for maintenance, but Herrera was instructed to jumpstart the process. He began connecting hoses to inject steam and cleaning chemicals. While he was wrenching the manifold, one of the pipes ruptured. With the unit still in operation and pressure in the pipes, Herrera's face, head, and hands were sprayed with 550-degree crude oil.

Mr. JOSE HERRERA (Contract Worker): You know I just got stuck on top. I was like 65 feet up in the air and had no way to do anything because the oil, as soon as it hit, you know, the outside, they get hard and they get into my harness, and there's nothing I can do about it.

GOODWYN: In critical condition, Herrera was rushed to the burn unit at the Brook Army Medical Center in San Antonio. He is badly burned. He may never be able to work again, and he's suing the refinery for negligence. Although CITGO declined to comment for this story, the company has denied there was any negligence on its part.

Covered in bandages, Herrera has traveled to Austin to testify before the legislature from his wheelchair. His case has become a bloody flag for those who believe that tort reform has gone too far in Texas because, after the controversial Texas Supreme Court ruling, there is a good chance that a jury will never be allowed to hear the facts of Mr. Herrera's case. Byron Buchanan is his lawyer.

Mr. BYRON BUCHANAN (Mr. Herrera's Attorney); Whether or not CITGO will ultimately be liable for his injuries, even if we can prove negligence, is in limbo.

GOODWYN: Jose Herrera made $100,000 a year as a refinery worker. Workers' compensation insurance will pay him about $37,000 a year for two years, then no more after that. But in a negligence lawsuit, he might recover his full wages over the course of his lifetime. If a jury were to decide the refinery was guilty of gross negligence, Herrera could receive punitive damages on top of the salary and medical reimbursement. But in Texas, the trend over the last decade has been to pass laws that stop pleas for relief before those lawsuits ever get to a jury.

Mr. BUCHANAN: My level of confidence that the supreme court of Texas is going to do anything to help workers is very low.

GOODWYN: Buchanan's skepticism arises from a Texas Supreme Court ruling entitled Entergy versus Summers, a case involving a different refinery and contract worker injured on the job. The ruling essentially changed the refinery owner's legal responsibilities by reclassifying the owners as contractors. For the last 20 years, petrochemical companies have outsourced much of their maintenance work to independent contractors.

For the refinery owners, it was a tradeoff. Contract labor was cheaper, but if those workers were killed or maimed as a result of refinery negligence, then Texas law allowed them to sue for damages. The nine Republican Supreme Court justices changed that. The court ruled that the state legislature had actually changed Texas law nearly two decades before. Legislators on both sides of the aisle say the court is simply wrong on this point. Jeff Wentworth is a Republican state senator from San Antonio.

State Senator JEFF WENTWORTH (Republican, San Antonio, Texas): The court, most everyone of whom has run on a basis of being a strict constructionist and not legislating from the bench, in my judgment, in that case, did exactly that. They legislated from the bench without any reference or deference to the legislative branch of Texas state government.

GOODWYN: Wentworth has been joined by other Republicans and Democrats from the Texas House and Senate in an amicus brief protesting the court's logic. They contend the legislature does not now and has never intended to grant negligent premise owners this kind of legal immunity. And Wentworth scoffs at the court's contention that the legislature actually changed the law back in 1989, and it went largely unnoticed until this ruling. But that theory does have its supporters.

Mr. LEE PARSLEY (Lead Counsel, Texans for Lawsuit Reform): The Texas Supreme Court doesn't set its own agenda. It takes cases when they get there.

GOODWYN: Lee Parsley is the lead council for the group Texans for Lawsuit Reform, which supports the court ruling on behalf of premise owners.

Mr. PARSLEY: It is self-evident to me that at least one company believed that the law allowed it to be both a general contractor and a property owner.

GOODWYN: Parsley says that, if owners pay the contractor the cost of the employees' workers' compensation insurance, they should rightfully assume a contractor's legal status, too.

Mr. PARSLEY: What you have is, a property owner would provide compensation insurance and would be entitled to the benefit of the Workers' Compensation Act. That is to say, they would not be subject to a lawsuit for on-the-job injuries.

GOODWYN: It speaks to just how far the Lone Star state has traveled down the path of tort reform, that not only are the trial lawyers who represent injured parties opposed to this ruling, but so are defense lawyers - and they represent premise owners. Why would defense lawyers protest? Because, if it ends up that almost nobody has standing to sue in Texas, it's not just the plaintiff's lawyers who will go hungry. The opposition to Entergy versus Summers has been so widespread that, although the ruling was unanimous, the Texas Supreme Court is now considering rehearing the case. A decision is expected after the election. Wade Goodwyn, NPR News, Dallas.

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