A Conversation With ... Shari Lockhart

Tell us about your firm.

We have five attorneys in the firm’s Springfield office and about 60 firmwide. I have been with Evans & Dixon since the Springfield office opened in 2001. Evans & Dixon is based in St. Louis. We are purely a defense firm only representing employers and insurers. We don’t represent injured employees in a case … probably about 90 percent or so of our overall practice firmwide is in workers’ compensation.

How has implementation of the new law been?

The unfortunate thing with workers’ compensation – or, I guess it could be fortunate in some ways – is that it does not move quite as quickly. Even though it’s been a year since the new legislation, there have only been a handful of cases that have made it to the trial stage. I would say about 15 cases statewide have made it that far, and none of them are final cases. So to see what the court is doing is not as clear of a picture yet.

So there are fewer workers’ compensation cases being filed as a result of the new law?

There has been a change in the number of cases being filed. Statistically, between Aug. 20, 2004, and Aug. 27, 2005, there were 22,159 formal claims filed for workers’ compensation. And there were 142,906 injuries reported by employees. Under the new statute, there were only 17,738 claims filed, about a 20 percent drop. With regard to injuries reported, there have been 134,168. The thinking of the employers, insurers and defense lawyers was that cases were being decided more on the side of the injured employees. The statute was written so that it basically, if there was a tie and the judge didn’t know who to believe, the tie was going to go to the injured employee under the old law. The intent under the new law was to make it a more even playing field – actually look at the objective facts and objective findings of the doctors and make the decision. And if there’s a tie, the judge is going to have to come down to who he finds more credible.

What are some other changes brought about by the new law?

The drug and alcohol and safety-violation penalties – before, if an employee tested positive for drugs or alcohol whenever they were injured, the employee’s benefits would be reduced by 15 percent. Under the new statute, they can be reduced 25 percent to 50 percent. There is nothing right now saying how you determine whether it’s a 25 percent … or 50 percent reduction, so it’s up to the judge to decide. The one case that has been decided by a judge thus far, split it in the middle at 37.5 percent. That was a safety violation – a case where the employee was not wearing a seatbelt, and he was in a crawler drill that slid and ended up rolling. If he had been wearing a seat belt, the injuries wouldn’t have been as bad, or possibly he wouldn’t have been injured. It was proven … that the employer had enforced the seatbelt rule, and since he was not wearing the seatbelt, the employer was entitled to the reduction in benefits.

If the reason the employee was injured was because of the drugs or alcohol, the injury can be denied completely.

What aspects of the law do you think are most confusing to employers?

Under the old statute, for an injury to be compensable, the work had to be a substantial factor that led to the medical condition. Now the work injury must be a prevailing factor that leads to the condition. So there’s no real tried-and-true definition of a prevailing factor except that it can be defined as a primary factor. If you have five factors leading to a condition and they’re all 18 percent or 19 percent and one is 20 percent the cause, is that enough to make it the prevailing factor? Does it have to be more than 51 percent?

For instance, if there’s someone who has an injury with back pain – and all of us have degeneration going on in our backs as we age – and then they lift something that causes the injury, what percentage of that is just the wear-and-tear of the aging process or a prior injury?

How should employers be prepared for workplace injuries and possible workers’ comp claims?

Get a history from employees. Get a good description of what the employee was doing, and a good description of their job duties. Have a good set of rules in place with regard to safety and make sure employees are aware of any safety devices and whatever rules they want to enforce. Have a rule against drugs and alcohol in your system at work.