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Workers comp exclusive remedy challenged

Nebraska grain elevator suit could affect all industries

Workers comp exclusive remedy challenged

A case argued before Nebraska's Supreme Court last week in the death of an 18-year-old grain elevator company worker seeks to circumvent the exclusivity rule common in many states' workers compensation laws.

“It's a big deal,” because the plaintiffs in Estate of Joseph Teague vs. Crossroads Cooperative Assn. want Nebraska's Supreme Court to create an exception to the exclusivity rule when employers engage in intentional actions, said Steven W. Olsen, a partner at Simmons Olsen Law Firm P.C. in Scottsbluff, Neb.

State exclusivity laws typically bar civil litigation by making workers comp law the exclusive remedy for work-related accidents.

A ruling favoring the plaintiffs would not be limited to the case at hand, but would undermine the exclusivity rule for Nebraska employers across all industries, said Mr. Olsen, who represents the defendants in the case.

“What they want to do is to make a change in what has existed in law for years and years, which is the exclusivity provision,” Mr. Olsen said. “Their whole argument is there are certain kinds of actions that would justify somebody being able to sue.”

The case stems from the May 2007 suffocation death of Joseph Teague and comes amid a growing trend of accidents and deaths involving workers trapped in grain elevator facilities across the nation's heartland.

Grain entrapment accidents have spiked in recent years because of harvesting conditions and the increased storage and consumption of corn used to produce ethanol, according to researchers at the Agricultural Safety and Health Program at Purdue University in West Lafayette, Ind.

They found that at least 51 grain entrapment accidents occurred in 2010, the highest since researchers began tracking the accidents in 1978. Twenty-six were fatal. A common cause of death is workers entering bins to loosen clogged grain while unloading equipment is running, often without required personal safety equipment or rescue equipment.

Flowing grain acts like quicksand and pulls workers under, according to U.S. Occupational Safety and Health Administration. “Such was the case in June when three workers were killed in one week after they were buried in grain,” OSHA said in a statement.

In the case before Nebraska's Supreme Court, Mr. Teague was shoveling grain inside a bin when an auger caused the product to flow, which pulled him under and asphyxiated him, according to court records.

Sidney, Neb.-based Crossroads operated the elevator and is the defendant in the case.

In October 2007, OSHA said it cited CCA for alleged “willful violations,” including failure to disconnect and lock out machines when an employee entered a bin, not having equipment to prevent engulfment and failure to provide emergency rescue equipment.

“Willful violations are those committed with an intentional disregard of, or plain indifference to,” OSHA requirements, according to the agency.

OSHA also alleged “serious violations, which occur when there is substantial probability that death or serious harm could result from a hazard an employer knew of or should have known.”

CCA pleaded guilty to federal charges, court records show.

In 2009, Mr. Teague's estate filed a civil suit, but a trial court dismissed it. In weighing the workers comp exclusivity rule, the court found that Nebraska's Workers' Compensation Act applied in the case. It said the accident “arose out of and in the course of (Mr. Teague's) employment.”

The estate appealed, arguing that an exception to the exclusivity rule should be recognized for alleged intentional torts by an employer.

“The estate seeks to circumvent this rule by arguing that CCA engaged in intentional violation of a variety of safety regulations designed to protect employees from serious injury and death and that, as a result, either the (workers compensation) act should not be held applicable or the court should recognize an exception to the exclusivity rule,” the state appeals court said.

But the appeals court also ruled that the estate's argument had no merit and agreed with the trial court that compensation for such injuries is available exclusively under Nebraska's Workers' Compensation Act.

Now the state Supreme Court will determine, among other things, whether “employers seeking the applicability of the (Workers' Compensation) Act must be held to the same standard of conduct as employees. Otherwise, it improperly deprives an employee due process and equal protection under the law,” according to court records.

In a recording of last week's arguments before the Nebraska Supreme Court, plaintiffs argued that the Workers' Compensation Act should not apply in this case because Mr. Teague's death was not an unforeseen accident.

They argued for an exception to the exclusivity rule for intentional torts or willful safety violations, as determined by OSHA. Otherwise, employers can insure for intentional torts and that should be against public policy, argued an attorney for the plaintiffs.

An attorney for the plaintiffs did not return a telephone call seeking comment.

In recent years, OSHA has stepped up enforcement of requirements for employers operating grain facilities across the country. Since 2009, the federal agency has issued fines exceeding $100,000 after fatalities and injuries.

During 2010 and this year, OSHA also has sent out 13,000 notification letters warning grain elevator operators about necessary safety precautions. Those include prohibiting entry into grain storage facilities while grain is flowing, prohibiting employees from “walking down the grain” to get it to move, ensuring that employees enter the bin with the proper safety equipment and providing equipment that can be used to rescue workers.