Has the Bargain in Workers’ Compensation Been Lost?

Today’s post was shared by The Jernigan Law Firm and comes from www.jernlaw.com

Today’s post comes from Leonard T. Jernigan, Jr. at the Jernigan Law Firm.

In creating the workers’ compensation system a grand bargain was created between the employer and the employee. In exchange for a no-fault system that paid limited but speedy benefits to the employee, the employer got complete immunity from civil lawsuits. Some argue that over the past few decades the bargain has shifted too much in favor of the employer, to the detriment of the employee. See Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla. 2016) (Supreme Court of Florida declared 104-week limitation on temporary total disability benefits to be unconstitutional).

Each state has been creating more and more limitations on the rights and remedies of the employee, but the employer has kept his civil immunity rock solid. In one case, that immunity was extended to claims adjusters and potential outrageous conduct in how they handle claims. See Bowden v. Young, 768 S.E.2d 622 (N.C. App. 2015) (even if intentional conduct is shown in processing and handling a claim, there is no civil action outside the exclusive jurisdiction of the Industrial Commission). In another example, in North Carolina if a 35 year old worker becomes totally disabled, benefits will cease after 500 weeks [9.6 years], even though the on the job injury continues to cause disability on all future employment. So what happens when this employee reaches age 45? The inevitable outcome is that the cost of this injury shifts…

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