The Existential Texas Roofer: Employer Responsibilities in Workers' Comp and Those Pesky Specific Hypotheticals

The topic of workers' compensation and employer responsibility has found its way into the Texas Governors race, and it presents some interesting philosophical questions for our industry. The Texas Tribune reported Attorney General Greg Abbott, who is running for governor, has indicated he wants to maintain the current ability of employers to opt-out of workers' comp if elected. Texas is the only state that doesn’t require private employers to carry insurance for workplace injuries and fatalities.

Oklahoma, which has enacted opt-out legislation this year, differs from Texas in that employers must offer alternative protections for their workers. Texas employers may go "naked", and offer no such protections. According to a Tribune study, it is estimated as many as 500,000 workers' in Texas are employed without any direct injury coverage or protections.

Despite being an option for almost 100 years, some are calling to reform or repeal the voluntary workers’ compensation law. Abbott credits the ability of private employers "to decide what’s best for them" for making the Texas economy the most robust in the nation.

Critics contend that the tort system, which is often the only option for these workers, is not adequate in many cases. Abbott was presented an example of one such case, that of Austin roofer Angel Hurtado. Hurtado was on the job when he fell to his death in 2004. His employer had no workers' compensation insurance. His family tried to sue, but the contractor vanished after the accident, and they could not find an attorney to take the case. The family said they spoke to seven lawyers, all of whom declined.

Abbott's response was awkward, to say the least. He called that situation a "specific hypothetical" to which he could not respond, and indicated he could counter with examples that were "opposite of what [the questioner] said". He said "a lot of times there are people to sue".

Yes, but what about the times there are not?

There is nothing hypothetical about a specific example, and it brings into question just what employers are responsible for when it comes to the safety and health of workers on the job. Do we have a fundamental obligation to protect at a basic level those who work for our benefit?

Regular readers know I am a red state, small government, slightly to the right of Attila the Hun fiscal Conservative. I believe strongly in the concept of self dependence and responsibility. Still, I think we have fundamental responsibilities to those who exist on our payrolls. I also recognize that the comp system is far from perfect.

It is true that over the years, we have seen what I call “responsibility creep” within the workers’ compensation industry. We are now paying for things that are not our doing. As an employer it is not my fault you got old on the job. I am not to blame for your getting fat while under my employ. Still, “responsibility creep” means employers everywhere are paying for those conditions. We are doing so both through direct claims for injuries caused by age and weight, as well as co-morbidities that must be treated before the actual injury can be addressed. This has represented a general expansion of expenses, and is a common driver for employers to opt out when they have the opportunity.

Still, Angel Hurtado was not an existential roofer. He was not a “specific hypothetical”. He was an actual human being who lost his life while working for someone, and the system let both him and his dependents down.

While Abbott may be able to say that “a lot of times there are people to sue”, there were not in Hurtado’s case.  I submit that employers, no matter what the mechanism, have basic responsibilities toward the safety of the people who toil at their behest.

One “specific hypothetical” is one too many. If it cannot be addressed with a specifically non-hypothetical response, there is something wrong with the system.

A non-hypothetical change may be in order.

Original Source

Contact Neil O'Toole and John Sbarbaro

at the Law Office of O'Toole & Sbarbaro, P.C.

Phone: 303-595-4777

Located in the Denver Metro area.

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