Salt Lake Tribune April 3, 2006

Job site safety advocates say HB150 is anti-worker Contractor sponsored bill: The law stops lawsuits over construction accidents By Elizabeth Neff The Salt Lake Tribune Click Here to Read Article

Kimberly Guinther, with a memorial to her son, Jessie Gainsforth, who was killed in an industrial accident. (Steve Griffin/The Salt Lake Tribune) Kimberly Guinther says it sickens her to think the death of her 31-year-old son, Jessie Gainsforth, on a construction site in July was preventable.    But Guinther, a veteran of construction work, believes it was. Her attorneys are investigating the job's general contractor, which has been cited for violating federal safety standards.    "I want to make sure they remember my son isn't just another statistic," she says. "It's about time somebody sticks up for those workers."    The 2006 Legislature, however, has made it more difficult to sue general contractors. HB150 immunized contractors who purchase workers' compensation insurance policies that cover subcontractors on the job site and develop and enforce a safety plan of their choosing.    The bill's sponsor: Rep. Michael Morley, a general contractor.    Angering some trial lawyers and victims of job-site accidents, the law has also set the stage for a potential separation-of-powers showdown between the Legislature and the judiciary.    Morley, R-Spanish Fork, says the new law creates an incentive for contractors to maintain safe job sites. He points to support from the Labor Commission and Workers' Compensation Rep. Michael Morley (R) speaks during a House Law Enforcement and Criminal Justice Standing Committee. They were discussing HB64, Driver License Qualification Amendments and HB179, Utah Employment Act. Chris Detrick/Salt Lake Tribune Advisory Council, a multidisciplinary council of representatives from both employment and labor.    That rings hollow to Brian Kelm, an attorney who represents injured workers and their families on the council, who says the first time members saw the complex bill was at the Jan. 26 meeting they voted on it.    "[Morley] sold it to [the council] and gave us the little snippet that this part of the bill is to encourage general contractors to have safety meetings and that everyone on the job site would be covered . . . when the effect of the bill was to insulate general contractors," Kelm says. "Everything about the bill is just a continuing chipping away at the rights of injured workers and their families."    Some, including lawyer David Parker, who has handled hundreds of workers' compensation claims, argue it does little to increase safety standards and will be devastating for injured workers who stand to recover less from negligent contractors.    Federal laws already require safety measures. HB150 provides general guidelines but allows employers to choose how their safety plans will be enforced.    Parker contends the law only serves to increase sales for the Workers Compensation Fund.     "A person injured on the job is made whole by workers' comp," he says. "That does not adequately pay someone who is injured."     Morley says his law benefits both workers and contractors, allowing his company and ethical contractors to compete against unethical companies that don't make sure their subcontractors are insured or that hire illegal workers.    He knows he and other contractors who are members of the Utah House committee who voted in favor of the bill will be able to reap benefits from it. He points to other lawmakers that run legislation in their industries.    "Anything I can do as a contractor to raise the bar and make the industry better is something I'm interested in doing," he says.    Dennis Lloyd, senior vice president of the Workers Compensation Fund, which helped write the bill, denied it would benefit the fund. Most companies are required by state law to carry workers' compensation coverage - with or without HB150.    It is one of hundreds of workers' compensation providers serving Utah, he says, though it has the largest market share.    HB150 also makes clear lawmakers think the burden of proof rests with injured workers who go before the Labor Commission, says Morley.     In reversing a Labor Commission ruling in the case of Enrique Martinez last year, the Utah Court of Appeals said the language of the current statute and good public policy urge that employees should not bear the entire burden of proof. The matter is now before the Utah Supreme Court.    Alan Hennebold, deputy commissioner of the Labor Commission, says the ruling was a bad one that "sets on its ear 10 years of practice." Richard Burke, who represents Martinez, disagrees.     "Of course they have been laboring under a misconception because these appeals take so long," he says. "Most injured workers get starved out and have to settle for a fraction of their claims because they can't withstand the financial circumstances of an appeal."    Burke has asked the justices to look at HB150 as violating the Constitution's separation of powers doctrine.    Martinez - who was working as an extra on the set of "A Life Less Ordinary" when he fell down twice on a rainy set with no signs posted and bright lights in his eyes - says he only wants a way to better his life.     "They should compensate me for my injuries, but they just don't want to," he says. "Here I am, still waiting."    A third portion of the new law routes all medical-claim disputes through the Labor Commission - another provision some attorneys fear will mean larger delays for disabled clients.    Sen. Ed Mayne, D-West Valley City, a longtime labor advocate, sponsored HB150 on the Senate floor and says this week he believed the final version of the bill was a good one.    Guinther isn't convinced. She wonders what value the general contractor put on her son's life.    Gainsforth had only been filling in for someone else that day, and Guinther says she thinks he never would have fallen some 17 feet from the lift he was operating had the general contractor made sure a spotter to help him see hadn't left as he worked.    "I don't want another mother to go through what I'm going through," she says. "It was an unnecessary fatality. I want to make a difference."     eneff@sltrib.com     ---    Tribune reporter Lesley Mitchell contributed to this story.