Unconstitutional Statutes on Workers Compensation

This morning in the House Business and Labor committee, I presented a bill to revise state statutes that discriminate between claims of injury and occupational disease for workers compensation.

House Bill 589 will fix a problem with our workers compensation statute in which we unfairly discriminate between workplace injury claims and occupational disease claims.

There are people whose workers compensation claims are being denied even though the Montana Supreme Court has clearly stated a problem with the statute. We need to fix the statutes.

We used to have a Workers Compensation Act in statute, and an Occupational Disease Act in statute.

In a 2003 case before the Montana Supreme Court called Schmill v. Liberty, the Court held that state law treated people with an occupational disease differently from people who suffer workplace injuries. The court said this unequal treatment violated the equal protection clause of the state constitution.

Article II, Section 4 of the Montana Constitution provides that no person shall be denied equal protection of the laws. The equal protection clause requires that all persons be treated alike under like circumstances.

So after the finding of the Montana Supreme Court, the 2005 Legislature repealed the Occupational Disease Act and folded its provisions into the Workers Compensation Act. But it did not fix the disparity between injuries and occupational diseases. The statute left the unequal treatment of occupational disease claims intact, and even made them worse. The current law says an injury is compensable if it aggravates a pre-existing condition. But an occupational disease is compensable only if events at work are determined to be the “major contributing cause” of the disease. Thats a higher and different threshold, and its unequal. Thats in Section 39-71-407, sub (9)(b), so a person with events at his job that aggravated a pre-existing condition, but that doctors could not say were the “major contributing cause” as defined in the statute, arent covered. Theres the disparity that the court found. If a single event, an injury, had aggravated a pre-existing condition, a person would have been covered. But for events that occurred over time that aggravated a pre-existing condition, there is no coverage. That clearly goes against what the Supreme Court intended when it found that the Occupational Disease Act violated equal protection.

In a 2007 case (Oksendahl v. Liberty) in Workers Compensation Court, the judge [Judge Shea] ruled against the Liberty Northwest insurance company for proposing a reading of the issue that was similar to the 2005 Legislatures action. Heres what he said:
Before the Montana Supreme Court in Schmill struck down 39-72-706, MCA, as unconstitutional, an occupational disease claimant who established that his or her condition was less than 50 percent related to working conditions could nonetheless recover something under the Occupational Disease Act, albeit only a proportional amount. With Schmill [finding] that this statute violated an occupational disease claimants right to equal protection, however, [in this case, the] Respondent would now have this Court conclude that the end result is that an occupational disease claimant who establishes that his or her condition is less than 50 percent related to working conditions recovers nothing under the Occupational Disease Act, not even the proportional amount he could have recovered pre-Schmill. In the annals of jurisprudence, this would stand as one of the more paradoxical remedies of a constitutional violation.

This is the court decision equivalent of a smack-down. The judge says that before the decision that prompted the legislature to repeal the Occupational Disease Act, workers could be compensated a proportional amount for their occupational disease claims. But now, they cannot be compensated even that! We need to fix the statutes.

It comes down to this: the major contributing cause standard discriminates between similarly situated injury and occupational disease claimants in violation of the occupational disease claimants constitutional right to equal protection. The practical effect of this standard has been to reduce benefits available to workers experiencing occupational diseases as opposed to workers who experience injuries. The 2005 Legislature tried to fix the problem, but worsened it. We can clear this up for claimants, the courts, and we can make coverage equal and constitutional again.