GILLETTE - Although a jury decided that injured coal miner Les Butts and his family are entitled to $22 million in damages, a judgment will be made for only $9.46 million.

A seven-member jury found that Thunder Basin Coal Co. was 57 percent responsible for the 2002 highwall accident that injured Butts, but the company won't have to pay its supposed $12.5 million share of the damages.

Under state law, companies that pay into the state's workers' compensation program are immune to such liability - even if they are found to be grossly negligent. It's part of the deal struck with Wyoming workers' compensation. If a company pays into the program, the program is supposed to cover medical care and lost wages for injured employees.

In return, companies cannot be sued for the same expenses.

So instead of going after Thunder Basin Coal Co., Butts brought suit against Kevin Hampleman, mine manager at the time, and Michael Hannifan, a safety manager. Those individuals allegedly ignored conditions known to be unsafe and failed to provide a safe work environment, according to the plaintiff's arguments.

"Most people are not aware that you cannot sue your employer in Wyoming," said Jim Fitzgerald, an attorney who helped argue Butts' case in Campbell County District Court.

House Bill 46, "Workers' Compensation Co-employee Immunity," is an attempt to extend the same immunity that Wyoming employers enjoy to supervisors, managers and other co-employees. The measure was introduced at the beginning of the current legislative session, but no action was taken.

The bill will likely go back to the Legislature's Labor, Health and Social Services Committee and could be reintroduced during the next legislative session.

Marion Loomis, executive director of the Wyoming Mining Association, recently told the Star-Tribune that extending immunity to co-employees is extremely important to all Wyoming industries.

"It is an extremely emotional and controversial issue," Loomis said.

Loomis said the intent of granting immunity to either employer or co-employee is to avoid gratuitous jury awards. As long as an employer pays into the workers' compensation program and is in good standing, then injured employees are supposed to receive reasonable compensation for lost wages and medical expenses.

In turn, Wyoming workers give up their rights to sue their employers.

But Wyoming's workers' compensation program has long been criticized for not adequately addressing the needs of injured workers. Even the defendants' own attorneys chastised Wyoming workers' compensation program in its handling of Butts' case.

In closing arguments Wednesday, defense attorney Ken Lyman said the agency's handling of Butts' case was "appalling, and it's inexcusable."

Butts' attorneys said he sought monetary damages because he wants to be able to make his own medical care decisions and not rely on workers' compensation. To date, the workers' compensation program has paid for more than $500,000 of Butts' medical and rehabilitation expenses. Butts would be required to pay back a portion of the compensation.

Concerns over vagaries of co-worker liability were expressed in the defense attorney's closing arguments on Wednesday. Lyman listed more than a dozen names of managers and supervisors at Thunder Basin Coal Co. who could conceivably share some responsibility for Butts' accident, based on the plaintiff's arguments.

"It's the entire company that should be held accountable," Lyman told jurors. "It's simply not fair and in accordance with the law to lay all the legal blame on these two individuals."

After the verdict was handed down Wednesday night, plaintiff's attorney Jim Fitzgerald told the Star-Tribune that extending immunity to co-workers would mean that the buck stops nowhere in cases of gross negligence and wantonly reckless disregard for safety in the workplace.

The workers' compensation program doesn't take those factors into account.

Energy reporter Dustin Bleizeffer can be reached at (307) 682-3388 or dustin.bleizeffer@casperstartribune.net.