I Walked Out Into West, Texas

I Walked Out Into West, Texas

  By Stephen C. Embry, Esq.

On April 17, 2013 an explosion at the West Chemical and Fertilizer Co., registering 2.1 on the Richter scale, leveled the plant and much of the surrounding town of West, Texas. The explosion was so powerful and destructive that it created a cloud of confusion as well as a swath of death and destruction. Initial reports indicate that at least 14 people were killed and hundreds injured. Many of the dead included firemen and medical personnel, who had rushed to the scene to control the fire just before the explosion. The actual toll may rise as searchers sift though the destruction.

The blast appears to have originated in dangerous masses of ammonium nitrate stored at the site. The West Chemical plant was supposed to have stored less than 400 pounds of the explosive material, and to have informed the Department of Homeland Security if the store exceeded that amount. In fact, reports indicate that the plant had as much as 270 tons of the explosives in place. Rep. Bennie Thompson (D. Ms.) reportedly indicated that the Department of Homeland Security did not even know of the existence of the plant.

 The explosion eerily echoed other blasts involving anhydrous ammonia occurring 66 years to the day after the Texas City explosion that killed hundreds when a ship carrying the substance destroyed much of Texas City, and two days short of the anniversary of the April 19, 1995 Oklahoma City terrorist blast that killed 168 people which involved a fertilizer bomb.

The explosion and destruction highlights the risks and costs of the deregulation movement, and the inadequacies of state workers’ compensation systems.

There are a number of state and federal agencies created during the 1970’s charged with preventing such disasters which have been crippled by deregulation efforts and budget cut backs. The Occupational Safety and Health Administration has long been a target of the deregulators and subject to significant budget cuts. In 2010 it was a target for those who wanted to end “job killing regulations”, and the budget was reduced by 20% in 2011. The AFL-CIO in its 2012 report on the State of Workers’ Health and Safety reported that it would take 137 years for OSHA to inspect all Texas work sites. Records indicate that OSHA had last inspected the West Texas Chemical and Fertilizer Plant on February 13, 1985, likely before some of the victims of the explosion were born.  In 1985 OSHA found five serious violations involving improper storage of anhydrous ammonia, and inadequate respiratory protection for workers. A crippling fine of $30.00 was leviedfor the serious violations at the plant.

The plant was also fined $2,300.00 in 2006 by the Environmental Protection Agency for failure to have a proper risk management plan in effect. As previously noted the Department of Homeland Security reportedly was not even aware of the existence of the plant, let alone the cache of explosives stored in the mid Texas city, which far exceeded the reporting requirements of the Chemical Facility Anti-Terrorism Act.

The disaster is also likely to have a lasting impact on the many injured due to the inadequate nature of the Texas Workers’ Compensation system. Texas was at the time of the explosion the only state where workers’ compensation coverage was not mandatory; it has since been joined by Oklahoma.

Under the Texas Labor Code an employer can become a “non-subscriber”, and opt out of providing workers’ compensation for injured workers. Some employers provide an alternative insurance plan, which is often inferior to even Texas’s meager benefits. Reports indicate that West Chemical and Fertilizer Company had recently opted out of the Texas Workers’ Compensation Act.

Even if the plant had not “non-subscribed” to the Texas Workers’ Compensation system, the benefits provided under Texas law would likely be inadequate.

Under the Texas opt out scheme the employer may forfeit the exclusive remedy shield which protects the company for tort suits, however, that may not provide much solace for those killed or injured by the blast since the West Fertilizer Co. reportedly only had a million dollars in insurance coverage.

In 1972 the National Commission on State Workmen’s Compensation Laws surveyed the state-based systems and found them to be seriously inadequate. The Workers’ Injury Law and Advocacy Group held a symposium in Chicago last summer that confirmed that, if anything, benefits systems have become less adequate over the last 40 years.

Many states such as Florida have caps on coverage and medical care, and death benefits. Many states have carve outs from coverage for entire classes of workers such as agricultural workers. Wage loss benefits have increasingly been replaced with impairment awards based on the American Medical Association Guides to the Evaluation of Permanent Impairment, which itself has been deformed by drastic reductions in evaluations of impairment in the sixth edition.

Texas includes many of these deforms which attack America’s wealth producers following industrial injuries. Texas caps total disability benefits for injured workers both by time and money. The maximum weekly benefit for an injury that renders a worker totally disabled is $818.00 per week, regardless of how much the breadwinner produced before the injury.

However, even those miserly benefits end after a short time. These total disability benefits end when the doctor concludes that the worker will never recover from his injury, or 104 weeks, whichever occurs first. Consequently, after the earlier of 2 years of total disability or the date the medical profession gives up hope of recovery, the worker’s benefits are markedly limited by time and amount. From that time the workers benefits are generally limited to an impairment rating based on the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Edition, and the Texas system will pay three weeks of partial benefits for each week of impairment as measured by the AMA Guides.  Thus, a permanent injury rated at 5% is limited to 15 weeks.

What others may find strange is that these partial disability benefits caps apply even if the injury is so severe that the worker is rendered totally unemployable. Equally strange is that the Doctor’s conclusion that the condition is permanent may result in the benefits ending or in a lower weekly benefit currently capped at $541.00 per week.

These failures of the regulatory and compensation system are not accidental, but instead part of the movement to return the United States to the McKinley era.

Governor Rick Perry, whose Presidential hopes collapsed, when he could only remember two of the three Federal Departments he wanted to eliminate, this year has been engaged in an aggressive campaign to encourage employers in other states to move to Texas to enjoy the lax regulatory climate and low workers’ compensation rates.

Governor Perry recently returned from Illinois, where he spent $80.000 urging Illinois employers to move to Texas where workers would have fewer rights and lower benefits.  The new state motto may be “Deregulation may kill you, but we don’t care.”