Why Comp Claims Place Employers Between a Rock and a Hard Place

Employers feel pinched every day.  This is not a new development, but a recent opinion from the Court of Appeals demonstrates how this pinching can actually hurt.

The Missouri Court of Appeals rendered a decision recently in the case of Stewart v. Second Injury Fund.  The facts were not in dispute:  Ms. Stewart worked at Subway for a few months, suffered a moderately-severe injury at work, and could not return to any type of employment.  She worked at Subway for only a few months. 

Here's where the story becomes interesting.  The claimant qualified for Social Security Disability in 1997 - - more than 10 years before she started working at Subway.  Her Social Security Disability was awarded based upon confirmed medical conditions including arthritis, reflex sympathetic dystrophy, degenerative joint and bone disease, carpal tunnel syndrome, and a host of other maladies.  She continued to receive Social Security Disability benefits even while she was working at Subway.

After her work injury she filed for workers compensation benefits, claiming that she was permanently and totally disability after her 2009 injury at Subway - - even though she had been receiving Social Security Disability benefits for more than 10 years BEFORE she was injured at Subway.

Was the claimant permanently and totally disabled before her 2009 injury at Subway?  Apparently not, because she was able to obtain that job and perform the necessary job duties associated with that job.  Also, in the absence of her 2009 injury, she would have presumably been able to continue working.  If this is the case, then why would she be entitled to Social Security Disability benefits if she was able to compete in the open labor market?

If she was disabled in 1997, as was decided by Social Security, then should the claimant be entitled to more benefits when she was injured at a job that should not have been able to obtain?

What if Subway would have told the claimant during her initial job interview that she could not be hired because of her multiple disabilities?  She would have sued Subway under the Americans with Disabilities Act, arguing that Subway was discriminating against her due to her disabilities as chronicled in her Social Security Disability award.  Subway, not wanting to be sued, decides to hire claimant only to then face the prospects of being liable for permanent total disability after only a few months of work.

I'm not attempting to disparage the claimant.  She sought and obtained benefits that are legally provided.  My question is this:  Is it fair to place Employers in no-win situations where the company faces litigation if the employee is not hired, yet still faces litigation even if the employee IS hired?

This situation arises because of the myriad of state and federal laws that regulate every facet of the workplace.  And yet, every Employer must wade through an alphabet soup of overlapping laws every single day (ADA, FMLA, COBRA, EFCA, EAD, ERISA, FLSA, FCRA, INA, and a host of others). 

One cannot swing the proverbial dead cat without hitting 5 politicians giving a speech focused on “creating more jobs”.  And yet, can new jobs truly be created by strangling the very companies that create these jobs?

About the Author

J. BRADLEY YOUNG is a partner with the St. Louis, Missouri law firm of Harris, Dowell, Fisher & Harris, where he is the manager of the Worker's Compensation Defense Group and represents self-insured companies and insurance carriers in the defense of workers' compensation claims in both Missouri and Illinois.  Brad is a frequent Conference Speaker and can be regularly heard on KMOX radio in St. Louis discussing a wide variety of legal topics.  You can email Brad at byoung@hdfh.com .

Share This Article: