Friday, September 8, 2017
I'm very pleased to announce that in two weeks' time--on September 22--I'll begin facilitating the first-ever workers' compensation symposia series at the University of Wyoming College of Law. My plan is for this year's presentations to be the prelude for creation of the first-ever Wyoming workers' compensation treatise:
WORKERS' COMPENSATION SYMPOSIA
Workers' Compensation Symposia
Hosted by the College of Law, The Workers' Compensation Symposia consists of a series of presentations exploring Workers' Compensation laws and issues relating specifically to Wyoming.
The Conference will take place at the University of Wyoming College of Law | Room 178 | 1:00 - 2:30 PM
Friday, September 22, 2017
Friday, November 10, 2017
Friday, February 9, 2018
Friday, April 13, 2018
Live-Streaming Option Available
Michael C. Duff
Wednesday, September 6, 2017
I've been a bit distracted of late as the fall semester has gotten underway at the University of Wyoming College of Law. I'm teaching first year Torts and an upper division course in Labor Law. Despite my distraction, a piece over at the Workplace Prof Blog caught my eye, so I'm taking the liberty of reblogging:
Tequila Brooks has just posted an essay over at Intlawgrrls on Making the human rights case for including compensation for workplace injuries in free trade agreements. Here's an excerpt:
For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported. Although public policy and extensive case law in the U.S. guarantee workers’ compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities.
Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers’ compensation or protection of migrant workers – but they should. Labor provisions in FTAs contain mechanisms that can enhance member states’ ability to protect human rights. While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues. They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind – and act accordingly to ensure that workers’ compensation is included among the labor rights protected in any re-negotiated agreement.
Michael C. Duff
Monday, August 28, 2017
Veteran Longshore Act practitioners have authored a new article which provides us with a crash course on the history and legislative/judicial highlights of the law. See Kathleen K. Charvet, Heather W. Angelico, & Michael T. Amy, Gilding the Lily: The Genesis of the Longshoremen’s and Harbor Workers’ Compensation Act in 1927, the 1972 Amendments, the 1984 Amendments, and the Extension Acts, 91 Tulane Law Review 881 (May 2017), available (for $5.00), at https://tlsstore.law.tulane.edu/Product/gilding-the-lily-the-genesis-of-the-longshoremens-and-harbor-workers-compensation-act-in-1927-th.
The authors explain how the law was first enacted in 1926 in the wake of intransigent problems in making the new state workers’ compensation laws fit cases of injuries sustained by longshoremen and similar occupations. They further explain that the law has been interpreted several times over the decades. As they set forth their explanation, they highlight the key U.S. Supreme Court decisions that have interpreted the law.
Of note is the authors’ observation that, originally, the law was intended even to cover seamen. However, organized maritime labor opposed any bill that would eliminate the possibility of damages for negligence, so that plan was dropped. And, of course, in the modern day such claims are governed by the FELA-like Jones’ Act.
Reflecting on the many jurisdictional complexities that have existed over the years, the authors conclude their much-appreciated lecture by positing, “In light of Supreme Court decisions regarding status and situs and the various diverse federal statutes incorporating the LHWCA, it may be time to consider if principles of federalism and uniformity might be advanced by a single comprehensive federal workers’ compensation system for all maritime, offshore, and overseas employees….”
Some things never seem to change.
One of those is the determination of Congress to keep lawyers away from representing injured federal workers who are seeking benefits under the Federal Employees Compensation Act (FECA).
In a new article, a Chicago lawyer who represents such workers briefs us on how that goal is achieved. See Michael P. McCready, Why do so Few Lawyers Handle Federal Workers’ Compensation Cases?, 77-June Oregon State Bar Bulletin 34 (June 2017).
Before setting forth a helpful briefing on the law and procedure of initial FECA claims, McCready proceeds through the four principal means: First, contingent fees are disallowed. Second, and as a result, the lawyer must charge a retainer, which most injured workers find laughable as a request. Third, even if the claim is successful, the injured worker must still approve the bill. Fourth, the compensation owed is sent directly to the injured worker (without deduction of any fees), hampering collection efforts from one’s own client.
The federal government voices reasons for this paternalistic approach, but the author, characterizing FECA as a sad system, asserts that “what they have done is essentially cut lawyers out of the federal system and deprived federal workers the ability to have legal representation for their injuries.”
In his conclusion, the author asserts, “In our practice only 1 in 10 injured federal employees who contact our office retain us for representation. If federal compensation lawyers were able to charge a contingency fee and have the check mailed to their office, that number would be closer to 9 in 10.”
Monday, August 14, 2017
Workers’ compensation commentators have again been discussing the possible (or probable) revival of workers’ compensation opt-out, a development that I predicted in 2016 (more accurately, I have argued there is no reason to believe that national supporters of opt-out would be permanently deterred by a single “loss” on narrow Oklahoma state constitutional grounds).
The current discussion appears to center on the revival of opt-out without an exclusive remedy provision. That, of course, would simply mark a return to the predominant workers’ compensation model from 1911 to 1917. Most systems were “elective.” (see here at page 93). Employers were permitted to decline participation, but in event of declination were liable in negligence and unable to avail themselves of the affirmative defenses contributory negligence, assumption of the risk, and the fellow servant rule.
The actual national legal problem with “opt-out” was not resolved in the Oklahoma constitutional case. The original elective systems—like the current Texas system—were “opt-in.” Employers were presumptively “out” unless they wanted to be “in.” The defunct Oklahoma system was “opt out.” Employers were presumptively “in” unless they wanted to be “out.” The problem was that in telling employers how to be “out” the Oklahoma “opt out” statute created a hybrid workers’ compensation/employee benefits regime that creates a very difficult ERISA preemption problem. With due respect to the Oklahoma Supreme Court, I continue to think that it never properly had jurisdiction of the case (my Fed Courts professor would be proud of me for sticking to my guns!). In any event, future challengers of opt-out on ERISA grounds are very likely to utilize declaratory judgment mechanisms rather than a sloppy removal and remand process (think of the Airline Deregulation cases). Such challengers would have a much cleaner appeal of a federal court’s determination that an opt-out law was just a plain old workers’ compensation law (and therefore not covered by ERISA). I realize that federal district judges don’t want to hear workers’ compensation cases, but the decision about ERISA coverage will be made over their heads.
If “opt-out” is addressed solely on state-law grounds, the determination of its viability on state constitutional grounds would depend heavily on the details of individual state constitutions. (see here at pp. 161-184). The lawfulness of the differential treatment of opt out versus non-opt out employers and employees will turn on the structure of states’ equal protection, due process, right to remedy, access to courts, and special laws’ constitutional provisions. There is tremendous variability with respect to these provisions, but the key point has to do with the level of scrutiny applied to an opt-out law: does the enacting state or the challenger have the burden of persuasion in justifying/challenging the statute and what level of explanation will be required by courts? For example, if a state claims that opt-out is more “efficient,” will the challenger have to demonstrate the claim is untrue, or will the state have to prove the claim is true and show that there was no better way to achieve the efficiency? If heightened constitutional scrutiny is imposed, the latter will be true.
One is still at a loss to know what “opt-out without exclusive remedy” means. If it means merely that employers have the choice not to participate in workers’ compensation without a state attempting to dictate the details of ERISA-governed plans, that will return us to 1911. Why might employers be willing to do this? I have had a continuing sense that it has a lot to do with the Federal Arbitration Act. (see here at page 3). Employers going bare in Texas can compel their employees to sign arbitration “agreements” as a condition of employment, and the evidence has become very clear how poorly employees do in such a regime. Still, opt-out without exclusive remedy in this sense could avoid many of the state constitutional problems that plagued the Oklahoma model, particularly if both employers and employees were able to elect participation (no exclusive remedy). As a matter of state law, that would leave employees with the historical common law remedy for injury. Whether this would be good for employees in the long run is a separate question. While it is true that many states have significantly weakened, or eliminated, the affirmative defenses that originally led to the Grand Bargain, it is also true that prima facie cases are not easy to establish (especially the nature of the employer’s duty of care) and court-based litigation is a long and expensive process.
It goes without saying that I continue to think that opt-out relating to employee benefit plans (with or without exclusive remedy) would be in great jeopardy of violating ERISA.
Michael C. Duff
Thursday, August 10, 2017
I am deeply indebted to my Harvard torts professor, David Rosenberg, for instilling in me early-on the notion that no legal rule has been so ineluctably established that it can't be challenged. It is in that spirit that I have questioned the coherence of the substantial evidence "regime" under which Wyoming courts review workers' compensation cases. The article is here, and the abstract follows:
In Wyoming, as in almost all states, facts in contested workers’ compensation cases are developed within an administrative agency. When agency factual findings are challenged in court, the level of judicial deference applied to the agency is important and may be outcome determinative. Wyoming courts claim to apply the “substantial evidence” standard of review, often expressed as evidence that a “reasonable mind could accept” as supporting an agency determination. The Wyoming Supreme Court, however, also sometimes upholds workers’ compensation agency decisions that are deemed “not contrary to the overwhelming weight of the evidence.” It is unclear whether this latter formulation is an odd version of the substantial evidence, or is another standard altogether.
The U.S. Supreme Court’s landmark opinion in Universal Camera stands for the proposition that the decision of an administrative agency should be supported by more than just any evidence. While most agree that courts are not authorized to substitute their judgment for the decision of administrative agencies, Universal Camera established a court should not be required to acquiesce to an agency when it cannot in good conscience agree with it. The “overwhelming weight” standard seems in significant tension with this latter principle because it has at times been applied extremely deferentially by Wyoming courts. This article demonstrates, however, that the overwhelming weight standard was mistakenly adopted by the Wyoming courts in the nineteen-seventies based to a substantial degree on an outdated administrative law encyclopedia entry. The article argues that the standard should either be abandoned or much more clearly explained, especially in light of its questionable origins. The overwhelming weight standard, the article contends, is inconsistent with a contemporary legal understanding of substantial evidence. Furthermore, the overwhelming weight standard threatens to routinely deprive injured workers of benefits. Such an outcome is especially inappropriate in Wyoming, the constitution of which ensures that labor has “just protection” under law; provides citizens a fundamental right to access courts to assert claims for personal injury; forbids laws limiting damages for injury and death; and voids any agreement by an employer with an employee waiving a right to recover damages for death or injury. The article underscores that highly deferential judicial standards of agency review shift power to the executive branch, a policy choice should be made cautiously and explicitly, not arrived at accidentally.
Michael C. Duff
Saturday, August 5, 2017
It is one thing for a federal law containing federal remedies for wrongs to preempt state law. It is quite another for a federal law containing no substantive remedies to supplant state law containing substantive remedies. ERISA preemption poses problems in the legal world precisely because so many forms of employee welfare benefit plans cannot be substantively regulated by the states. As a result of ERISA’s substantive emptiness in this respect, employee welfare benefits go substantively unregulated. ERISA preemption is one of the underappreciated reasons (except by “insiders”) for the United States’ inability to achieve modern health care regulation. But except for some esoteric scenarios – such as those in play in the Oklahoma opt-out scenario – ERISA does not cause workers’ compensation regulators too many headaches. The reason? Plans created solely for the purpose of complying with state workers’ compensation laws are not covered by ERISA, and therefore may be regulated by the states.
The Airline Deregulation Act covers air ambulance services. It emptily preempts attempts by state workers’ compensation regulators to set rates—any rates—applicable to the ambulance carriers, who are apparently under the ADA’s jurisdiction. The ADA provides that states “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier ...” 49 U.S.C. § 41713(b). (The “related to” phraseology is reminiscent of ERISA’s preemption provision). In keeping with the Airline Deregulation Act's (ADA’s) aim to achieve maximum reliance on competitive market forces, Congress sought to ensure that the states would not undo federal deregulation with regulation of their own by including a preemption provision prohibiting states from enacting or enforcing any law related to a price, route, or service of an air carrier. Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251 (2013). Thus, the ADA’s purpose is explicitly de-regulatory, while it might be argued that ERISA’s preemption of employee welfare benefit plans was less deliberately de-regulatory and motivated more by a desire to avoid conflict between regulatory regimes.
Although the recent air ambulance controversy in Texas, the Air Evac EMS matter, was temporarily grounded in state immunity questions, it underscores two pivotal points respecting all preemption litigation. The first pivotal point has to do with courts’ grappling with preemption provisions that are occasionally startlingly broad. It is interesting to observe avowed judicial textualists arguing that courts should not greet clear statutory language with an “uncritical literalism.” I thought the whole point of textualism is that text should be given its literal meaning if it can be ascertained. One may be perplexed by the phrase “related to,” but the consternation comes from knowing exactly what the words mean.
The second pivotal point has to do with the forum for the resolution of preemption questions. I think it is fair to say that one who intends to rely on preemption as a defense to the imposition of a substantive state remedy would prefer that a federal court decide the case. After all, state courts do not routinely hear preemption cases and may have great respect for their state legislatures’ policy objectives. The problem is that with very few exceptions (one of which is ERISA) preemption claims are “defensive” and may not be used offensively as a vehicle to create federal jurisdiction where none would otherwise exist. Thus, under the “well-pleaded” complaint rule, the plaintiff is master of both the complaint and the forum (federal-state) in which the controversy will be heard. Accordingly, a state court may be placed in the position of deciding (to borrow from a recent example) whether federal immigration law preempts state law. The defendant will not be surprised to hear that the state court’s answer is “no.” (Echoes of the Erie Doctrine here?). So, there is a struggle by the defendant to get into federal court and no effective, predictable way to appeal a determination that the matter must be heard in state court. (The primary exceptions to the rule are ERISA and section 301 LMRA preemption).
But what if one is not the defendant? The gambit in the Air Evac EMS case was for the plaintiff-parties to seek federal preemption by way of declaratory relief in federal court under the authority of Shaw v. Delta Airlines. Does this mean that in every case in which a party would be disallowed a federal court forum as a defendant, it could escape the outcome by becoming a plaintiff in a declaratory action? If so, I am left wondering if the same course might have been followed by Dillard’s. In any event, no doubt to the confusion of many onlookers, the preemption question in Air Evac EMS has not even been reached. There was simply resolution of a threshold jurisdictional question of whether the out-of state plaintiffs could sue state officials under the 11th Amendment. The answer is yes. To explain why will require another post, however, and I have miles to go before I sleep.
Michael C. Duff
Monday, July 31, 2017
News outlets have been reporting on the case Bailey v. City of Lewiston, decided by the Maine Supreme Judicial Court on July 20. As background, Maine uses permanent impairment ratings as a mechanism to determine caps on receipt of permanent partial disability benefits (called permanent “incapacity” benefits in Maine). When a worker’s permanent incapacity rating exceeds 15%, there is no cap on the number of weeks the worker may receive partial benefits (calculated in Maine as a percentage of the difference between pre-injury average weekly wage and post-injury earning capacity). When impairment is rated at 15% or below, a worker in Maine is limited to 260 weeks of partial incapacity benefits. (The structure is somewhat reminiscent of the Pennsylvania impairment/benefit mechanism at issue in Protz).
The employee in question, Bailey, suffered a respiratory work injury which developed into a reactive airways deficiency syndrome. By administrative award, he began to receive partial incapacity benefits in 2004. In 2007, his employer, the City of Lewiston, Maine, sought review of his award of indemnity benefits and determination of his level of permanent impairment. The administrative official denied any decrease in benefits, but also found that Bailey had reached maximum medical improvement (MMI), and had sustained permanent impairment of 32%. Because the 2007 award established permanent impairment in excess of 15%, Bailey was eligible for partial benefits without a cap. In 2013, the employer again filed a petition seeking review of Bailey's incapacity, and a second petition seeking to re-determine Bailey’s permanent impairment, introducing an updated medical examination claiming to show permanent impairment had decreased to 0%. An administrative official rejected Bailey's claims that the doctrine of res judicata precluded the employer’s petition to determine the extent of his permanent impairment, concluded that the new medical report constituted a change of circumstances warranting a new permanent impairment rating, and reduced Bailey's permanent impairment level to 0%. The effect of this determination was to immediately end Bailey’s entitlement to further indemnity benefits. Bailey appealed to Maine’s workers’ compensation appellate division, Download Bailey appellate division decision, which concluded that the 2007 determination of permanent impairment as of the date of MMI was final, and therefore that res judicata principles barred re-litigation of that issue. The division also concluded that there existed no significant change of circumstances warranting disturbing Bailey's date of MMI. The employer appealed.
The Maine Supreme Judicial Court sweepingly (perhaps too sweepingly) affirmed the appellate division. The Court stated, “[h]ere, the Appellate Division's conclusion that re-litigation of Bailey's permanent impairment level was barred by the doctrine of res judicata is supported by the statute's plain language and legislative history.” That broad issue was not what the parties were disputing, however. The precise issue below was whether a decrease in an employee’s permanent impairment, subsequent to the permanent impairment existing as of the date of MMI, may retroactively reinstate a cap on benefits. The Maine Supreme Judicial Court’s opinion may easily be read as establishing that any finding of permanent impairment is res judicata. MMI, however, means (in shorthand) that an employee’s anatomical condition is not reasonably likely to improve; it has nothing to do with whether an employee’s condition might worsen. The Court’s opinion strongly suggests that an injured worker may not petition for additional permanent impairment benefits even if a work-related injury worsens. But as claimant’s counsel, Jim MacAdam (for whom I once worked), has noted to me, such an outcome would be contrary to a long line of Maine precedent. Jim’s compelling example (an actual case) is of an injured worker suffering a work-related knee injury and undergoing a meniscus excision (3% permanent impairment), which leads to a partial knee replacement (10% permanent impairment), to a full knee replacement (15% permanent impairment), and ultimately to a leg amputation (25% permanent impairment). It is difficult to argue that permanent impairment should be based on the earlier phases of the injury. But such a limiting argument, if it is going to be made, should be addressed in the open. The appellate division found only that the date of MMI, and the degree of permanent impairment as of that date, were res judicata as applied to the cap. Nothing more. I certainly understand why the employee intends to move for reconsideration.
My academic interest in this case is that it continues to reveal the clunky interplay of permanent impairment and disability, two distinct concepts that resist continuing legislative efforts to bash them together.
Michael C. Duff
Friday, July 28, 2017
A staple of workers’ compensation journalism – and seminar topics – is the dramatic change that has been occurring, and will continue to occur, in our country’s job-makeup picture.
At the College of Workers’ Compensation Lawyers Symposium (Phoenix, AZ, March 2017), for example, Peter Rousmaniere showed slides demonstrating how work injuries and deaths have continually declined in number, due in part to the changing character of the national workforce. One of his slides, for example, showed that in three high-risk occupational categories, sharp reductions of the same, as part of the overall employment marketplace, had taken place between the years 1950 and 2005. Another slide demonstrated impressive evidence of our country’s continuing shift from a manufacturing economy to a service economy. Mr. Rousmaniere’s complete slides can be viewed at this URL: http://www.americanbar.org/groups/labor_law/committees/wccom/archive/2017papers.html.
In some regions, of course, even the service industry is taking a hit. The New York Times recently featured a story about how Johnstown, PA, has suffered in this regard. Rachel Abrams & Robert Gebeloff, In Towns Already Hit by Steel Mill Closings, a New Casualty: Retail Jobs (June 25, 2017), available at https://www.nytimes.com/2017/06/25/business/economy/amazon-retail-jobs-pennsylvania.html.
Perhaps the newest issue to be addressed in this discussion, meanwhile, is how artificial intelligence may render obsolete even more jobs. See, e.g., Elizabeth Kolbert, Our Automated Future: How Long Will it be Before You Lose Your Job to a Robot?, The New Yorker (Dec. 19 & 26, 2016), available at http://www.newyorker.com/magazine/2016/12/19/our-automated-future.
For the workers’ compensation field, an implication of this type of data – and stories – is that the fewer injuries which will take place, because of the changing workforce, is a smaller volume of cases for litigation and treatment by the system in general. While a country with fewer injuries is an inarguable good, of course, a reduced practice has practical implications for lawyers and agencies.
Often the message that jobs are being eliminated is delivered to workers’ compensation lawyer audiences with the provocative (and perhaps mischievous) suggestion that even our professional jobs in the field are on the way out. To me, such predictions recall the Saturday Night Live skit from 1977 where a priest, played by Dan Aykroyd, eliminated a key confessor task by having it automated via with the “Penance 1000” computer. See https://www.google.com/?gws_rd=ssl#q=saturday+night+live+penance+dan+akroyd&spf=1501273234428.) The provocateurs’ suggestion is, after all, that justice – like a holy sacrament – can at some point be administered without human involvement.
In any event, in a new Wall Street Journal article, the author, an artificial intelligence expert, portrays as exaggerated recent reports that score of workers will soon be jobless because of advances in the field. In his opinion, hype attends many of these analyses. As the subtitle of the article declares, “Smart machines will replace some jobs, but they will create many more.” Jerry Kaplan, Don’t Fear the Robots, The Wall Street Journal (July 22, 2017), available at https://www.wsj.com/articles/dont-fear-the-robots-1500646623 (subscription required).
Kaplan asserts that the alarmists are ignoring the historical record. He notes, among other things, that 57% of the jobs under taken by workers in 1960 – e.g., office clerks, secretaries, gas pumpers, bowling alley pin-setters – no longer exist today. The alarmists recognize this phenomenon, but they argue, erroneously in his view, that the “coming wave of artificially intelligent computers and robots can do virtually any job that a human can do, so everyone’s job is on the chopping block.” Kaplan believes that this anxiety is nonsense. The core of his critique is that these innovations are simply the latest “wave of automation, and like previous waves, they reduce the need for human labor. In doing so, they make the remaining workers more productive and their companies more profitable. These profits then find their way into the pockets of employees, stockholders and consumers (through lower prices.)”
It is the extra money that is created through automation that will create new jobs. People will now have more money for vacations, apparel, eating out, going to concerts, and the like. This foreshadows, Kaplan asserts, “increased demand for flight attendants, hospitality workers, tour guides, bartenders, dog walkers, tailors, chefs, ushers, yoga instructors and masseuses, even as artificial intelligence reduces the need for drivers, warehouse workers and factory operators.” Kaplan concludes, “If history is a guide, this remarkable technology won’t spell the end of work as we know it. Instead, artificial intelligence will change the way we live and work, improving our standard of living while shuffling jobs from one category to another in the familiar capitalist cycle of creation and destruction.”
Bronchetti and McInerney on Increased Access to Health Insurance Impacting Claims for Workers' Compensation
Paul Secunda of Marquette Law alerted me to an interesting new Upjohn Institute paper today recently posted on the Social Science Research Network authored by Erin Todd Bronchetti (Swarthmore) and Melissa McInerney (Tufts). The paper is titled, "Does Increased Access to Health Insurance Impact Claims for Workers' Compensation? Evidence from Massachusetts Health Care Reform." From the abstract:
We study over 20 million emergency room (ER) discharges in Massachusetts and three comparison states to estimate the impact of Massachusetts health care reform on claims for Workers’ Compensation (WC). Prior evidence on the relationship between health insurance and WC claiming behavior is mixed. We find that the reform caused a significant decrease in the number of per-capita ER discharges billed to WC. This result is driven by larger decreases in WC discharges for conditions for which there is greater scope to change the payer or the location of care. Conversely, we estimate smaller impacts for weekend versus weekday admissions and for wounds compared to musculoskeletal injuries. Our findings are consistent with the reform lowering WC medical costs for employers/insurers, primarily by inducing injured workers to seek care at less costly sites. The results suggest much smaller impacts on the propensity to bill WC for a given injury.
The findings appear to lend solid empirical support to anecdotal reports showing reductions in workers' compensation claiming when general access to health insurance is expanded. By implication, one might expect increased workers' compensation claiming when access to health insurance is restricted, but as the authors note, findings in this area have thus far been mixed.
Michael C. Duff
Thursday, July 27, 2017
This past May, Uber initiated what it calls a “driver injury protection program” for its drivers. As anyone who has read my posts knows, I am an “independent contractor” skeptic. I simply do not find credible most of the companies claiming to have independent contractors but no employees. While Alaska seems to find the employee/independent contractor analysis too difficult to perform, I’ll bet most of my readers do not. Section 220(2) of the Restatement 2d of Agency states:
In determining whether one acting for another is a servant (employee) or an independent contractor, the following matters of fact are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
For those keeping count, those are ten factors. Any second-year law student can do an analysis of these factors. I have written probably a hundred briefs using the factors. In most cases, one gets a pretty good idea, pretty darned quickly as to whether the employee analysis tips one way or the other.
What is really going on is that companies do not like to be told they cannot dictate to states who is, and is not, an employee. The great irony is that it was employers who insisted upon common law factor tests after courts in the 1940s, most notably the U.S. Supreme Court in NLRB v. Hearst Publications, Inc., began to apply the “economic realities” test – what I describe to my students as the “oh, give me a break” test. Courts saw very well the reality of the situation – that a “contractor” obviously was a servant of a company just looking at the reality of the situation. Business went into convulsions over the opinion, complaining loudly that common law tests (such as the one now reflected in the restatement provision set forth above) must be used instead of any “realities” test. Thus, many statutes—including the National Labor Relations Act, which was at issue in Hearst-- were amended to ensure that common law tests be used. But, you know how it goes, you like the test until it produces outcomes you do not like.
So, the Driver Injury Protection Program (which for many reasons is not workers' compensation), asks us to buy into the assumption that drivers are independent contractors, without the mess and bother of analysis. And, I suppose, if states are going to exempt Uber by fiat from workers’ compensation laws (leaving state constitutional “special laws” considerations to one side—see page 71 here), something is better than nothing. It is probably worth mentioning, however, that, sooner or later, the federal courts will get cases in which aggrieved “contractors” will argue that the Program is governed by ERISA. ERISA, of course, applies to the “welfare benefit plans” of “employees.” Guess what the federal courts apply in addressing who is, or is not, an “employee” under ERISA? The Darden factors, named after the 1992 U.S. Supreme Court case, Nationwide Mutual Insurance Co. v. Darden, in which a rather muscular version of the factor test was established for determining who is an employee under ERISA. (Given that the asset value of just ERISA-governed health plans is roughly $9 trillion dollars, it is pretty important to know who qualifies as an employee in that environment).
In the end, I admit to being morally intransigent on this issue. It is not that economic activity is emerging that simply defies application of Section 220(2), or similar tests. It is rather that arguments that should not even be taken especially seriously have been sold to willing politicians. To me, opt-out is opt-out and, in the end, the wrong party is very likely to bear the cost of injury.
Michael C. Duff
New York City attorney Harvey Mars, who works with the Associated Musicians of Greater New York, Local 802, has reported on an unusual development in workers’ compensation. Under the New York Act, musicians and other performing artists were excluded from the definition of “employee” until 1986. They were considered, instead, independent contractors. In that year, however, such workers came under the coverage of the law and were captured within the term “employee.” This development was and is considered a major advantage to this class of workers.
In the wake of a serious accident suffered by a Metropolitan Opera star, however, this advantageous status quo was threatened. During a 2011 performance of Gounod’s Faust, the mezzo-soprano Wendy White was injured when, apparently, a hinge connecting a platform to a stairway failed. The fall caused a career-ending injury to her torso which “caused nerve damage that prevents her from singing sustained high notes.” The incident was presumptively covered by workers’ compensation, but Ms. White has been pursuing a civil action against the Met so as to be potentially entitled to damages.
In the meantime, legislation to amend the law was advanced in the legislature to make workers’ compensation coverage in effect a matter of election for musicians, allowing them to opt out in advance of any injury. This legislation, vigorously opposed by organized musicians, was approved but then vetoed, in December 2016, by Governor Cuomo. (Oddly, the legislation was drafted as if retroactive in effect – it would allow Ms. White to proceed with her civil action.) Meanwhile, an appellate court refused to dismiss the case summarily, on exclusive remedy grounds, suggesting that the original inclusion of musicians in the New York Act did not apply to “stars.” (The author does not think much of that reasoning – or how it could ever possibly be applied.)
In any event, the crisis seems to have been averted by further legislation which the governor did, in fact, sign, in March 2017. The new law limits the exception “only to Ms. White’s accident…. Such legislation, known as a ‘picture bill,’ would allow Ms. White’s suit to proceed but would not otherwise disturb the broad coverage the law extends to performing artists….” Read this interesting account at http://www.harveymarsattorney.com/articles-publications/.
Wednesday, July 26, 2017
I spent some time today reading through the “New Economy Works to Guarantee Independence and Growth Act of 2017” (the NEW GIG Act of 2017), a bill introduced on July 17 by Senator John Thune, Republican of South Dakota. Senator Thune asserts, “My legislation would provide clear rules so . . . freelance-style workers can work as independent contractors with the peace of mind that their tax status will be respected by the IRS.” Senator Thune describes the bill as a measure that would “add certainty to worker classification rules.” The problem is that the bill does not by its terms even apply to freelance-style workers, it applies much more expansively to “service providers,” defined very broadly under the bill as “any qualified person who performs service for another person.” (interestingly, the term is not defined until well into the text of the bill, at amended Internal Revenue Code Section 7706(2)(j)). The bill would radically alter the classification of both “employees” and “employers,” as defined presently under the Internal Revenue Code (I.R.C.), but my focus here is on the employee definition.
In sum, under what would be new Section 7706 of the I.R.C., a “service provider” might not be an employee for many statutory reasons (see proposed amended I.R.C. Section 7706(a)(1)). There would be so many ways not to be an employee (or to be a “qualified service provider”), the “requirements” are recited for about 5 pages of text, in amended I.R.C. Section 7706(a)-(d) of the bill, that when I started to write them out for this post I abruptly stopped, fearful of losing my busy blog audience mid-paragraph. There would be so many ways not to be an employee that I would be a very poor lawyer if I could not make several colorable arguments under the text that any employee was a “qualified service provider”. I will leave it to you, through inspection of the linked text, to agree or disagree with my assessment.
One thing there was not, of course—this being a federal tax bill, was a preemption provision. Unlike some of the House tort-reform bills, passed and sent on to the Senate in recent weeks (and unusually opposed by significant contingents of states-rights minded republicans, there is no generic language instructing that the bill is to have any bearing on state law--say, for example, on workers’ compensation law. It is patently obvious, however, what kind of mischief could be generated if large numbers of “employees” for state law purposes were deemed not employees for federal tax purposes. It would be but one step from that confused sequence of events to attempts to “harmonize” federal and state law. That harmonization, if aggressively undertaken, could easily wreak havoc on all laws applicable to “employees.” Is that a good or bad thing? I suppose it depends on what you think about those laws.
Michael C. Duff
Tuesday, July 18, 2017
I am pleased to announce that the Second Edition of my law school textbook, Workers' Compensation Law, has been published by Carolina Academic Press and is available (with Teacher's Manual from Carolina Academic Press. The book is oriented to beginning law students, or anyone else looking for a legal introduction to workers' compensation. While an essentially a complete exposition, the book is not, nor does it pretend to be, a treatise. Rather, as a law teacher embarking on his 12th year of teaching this fall, I have made a number of stylistic and substantive choices that are in accord with what I have found to be most effective in a law school classroom -- and with an eye to the Carnegie Foundation's "Educating Lawyers" publication. I should also probably mention that the book is very reasonably priced, coming in at just over a third the cost of other law school textbooks.
Michael C. Duff
Sunday, July 2, 2017
In a prior post, I noted the distinction between workers’ compensation coverage of undocumented workers and difficult remedial questions emerging when considering retaliation claims under a workers’ compensation statute. In Sanchez v. Dahlke Trailer Sales, that precise issue was presented. A Minnesota trial judge granted the employer’s motion for summary judgment arguing that because the employee, Sanchez, was an undocumented worker he could not prevail on a retaliatory discharge claim as a matter of law. A Minnesota appeals court reversed the trial court, and the Minnesota Supreme Court affirmed the decision of the appeals court.
An abbreviated version of the facts is that Sanchez, a Mexican national, overstayed his visa and obtained employment with the employer, Dahlke Trailers, by using fraudulent documents, a fact Sanchez alleged Dahlke knew. Sanchez worked for Dahlke as a body shop assistant for roughly 8 years—from 2005-2013, when he allegedly suffered a work-related injury in September of 2013. He returned to work and the claim eventually settled; but according to Sanchez workplace relations thereafter became rancorous, and during the course of the workers’ compensation proceedings Sanchez admitted to his undocumented status. In response, Dahlke indicated Sanchez could not work for Dahlke anymore “because of his legal situation.” Dahlke later delivered a letter to Sanchez stating “we are sending you home on an unpaid leave of absence. Once you provide us with legitimate paperwork showing that you can legally work in the United States, you can come back to work at Dahlke Trailer Sales.”
I omit discussion here of whether Dahlke’s action was a “discharge,” an important issue in the case, but not what I want to focus upon. I am more interested in the trial judge’s rationale for granting Dahlke’s motion for summary judgment. According to the Minnesota Supreme Court opinion:
Because Sanchez acknowledged that he could return to Dahlke if he became legally authorized to work, the district court found as a matter of law that his unpaid leave was a result of his immigration status, not his workers’ compensation claim. Additionally, . . . the court reasoned that Dahlke was simply complying with federal law prohibiting employers from knowingly employing undocumented workers.
In a McDonnell-Douglas burden shifting regime, this would be a difficult case for an employee to prevail. Even if Dahlke had a mixed motive for sending Sanchez home on unpaid leave, it is clearly the case that Dahlke was legally prohibited from continuing to employ Sanchez. That justification simply could not hold up as pretext. Of course, motive is often a trial question, and it appears not to be clear as to whether McDonnell-Douglas burden-shifting even applies to this category of Minnesota cases. Ultimately, as the court stated, “there is reason to doubt that Dahlke ever intended to rehire Sanchez, regardless of any change in his work status.”
But there is a thornier problem. It is one thing for a state to cover an undocumented worker with workers’ compensation benefits. It is quite another for it to provide an antiretaliation remedy as compensation for post-discharge damages. Minnesota law provides:
a civil action for damages incurred by the employee including any diminution in workers’ compensation benefits caused by a violation of this section including costs and reasonable attorney fees, and for punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled. Damages awarded under this section shall not be offset by any workers’ compensation benefits to which the employee is entitled.
The well-known Hoffman Plastic Compounds case famously stated;
Under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA’s enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations. The [NLRB] asks that we overlook this fact and allow it to award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud. We find, however, that awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the [NLRB] has no authority to enforce or administer.
The response of the Dahlke court to the case’s underlying facts was that:
The workers’ compensation antiretaliation statute does not require that Dahlke continue to employ an employee after becoming aware that he is undocumented. Rather, it prohibits Dahlke from discharging an employee because he sought workers’ compensation benefits . . . The retaliatory discharge provision does not require employment, but instead focuses on of[sic] a particular motivation: the employer is liable only if it discharged the employee “for seeking workers’ compensation benefits.”
But this does not address the question. The Hoffman case reaffirmed the already firmly-established principle that backpay was unavailable to the undocumented worker in that case, not reinstatement (which has always, obviously, been unavailable). The problem is that any prospective remedy for the unlawful discharge of an unlawfully present worker is prohibited under federal labor law. Workers’ compensation remedies are retrospective in the sense that they compensate for an injury in fact sustained during employment. I see the two categories of remedies--workers' compensation benefits vs. anti retaliation damages--as being distinct, and although I have my problems with Hoffman Plastic, I do not see how state antiretaliation remedies fail to conflict with its interpretation of federal policy. (For my critique of Hoffman’s interpretation see here and here). In an upcoming post, I will discuss the very interesting problem of what happens when a state court gets a federal preemption question wrong, which may be the situation here.
Michael C. Duff
Saturday, July 1, 2017
In reading Judge Torrey’s insightful review of Peter Rousmaniere’s excellent work on non-claiming, I was reminded of conversations about workplace culture that I have had with my students here in Wyoming. As a former blue-collar Teamster working in a very dangerous environment on the airport tarmac (a somewhat unusual background for a law professor), I was part of a work group that valued, and even insisted upon, the reporting of workplace injuries to our employer. The culture was, in part, a product of worker solidarity—we really cared about each other—but it also had something to do with a certain self-interested, Philadelphia–laboring mindset that I have often thought was beautifully encapsulated by a passage from a labor law opinion, authored by Judge Learned Hand in the 1940s, explaining that when workers:
in a shop make common cause with a fellow workman over his separate grievance, . . . [they] know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping . . .
In short, I will support you in your grievances—including the filing of a workers’ compensation claim—if you, one day, help me in mine. Of course, this kind of sentiment is most compelling when there is a high likelihood of injury in the future. But even when that is not the case, workers may be motivated by a situation described analogously by the ADA as “direct threat”: “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If I am hurt, and cannot perform my job properly and safely, I may wind up hurting you. Much of this is common sense in a reasonably-sophisticated industrial workplace. “Bravado,” or culturally based “lawsuit-avoidance,” would make few inroads on an informed, cohesive group of employees that has been thoroughly exposed to the impacts—both medical and legal—of not reporting workplace injuries.
Even where employees are not culturally bashful about suing, the specter of retaliation is present, and I think fear of retaliation predominantly explains non-claiming. My co-workers and I (this is purely anecdotal, I realize) knew benefits existed, were not especially put off by the prospect of a legal battle, and were not involved in benefit coordination calculations. We feared being fired. As union density has eroded over the last few decades, the claim-protecting mechanism of a collective bargaining agreement has eroded with it. When I worked out on the tarmac, I could not (without cost to my employer) have been discharged for filing a workers’ compensation claim, because an arbitrator would likely have reinstated me under the just cause provision of the collective bargaining agreement regulating my workplace. Outside the confines of the Railway Labor Act, Section 7 of the National Labor Relations Act protects concerted activity in non-union workplaces. During my time as an NLRB agent, I was involved in a number of interesting cases in which employees effectively made workplace safety and injury complaints in a concerted manner, thereby gaining some anti-retaliation protection under the NLRA. In fact, the old chestnut of the non-union “concerted activity” cases, Washington Aluminum, involved workplace safety: employees who engaged in a work stoppage to protest a very cold workplace. The employees, who had been discharged for insubordination, were ordered reinstated by the Supreme Court. In short, subject to narrow exceptions, employees fired for complaining concertedly about working conditions are entitled to reinstatement and backpay under the NLRA. I suspect there are a good number of employees and even lawyers who are not aware of this principle.
I always believed as a blue-collar worker that workplace rights-claiming was an act of worker self-defense; and as a claimants’ lawyer I made the point of reminding my Maine worker-clients that they had likely been paying for their own workers’ compensation insurance for years through lower wages. That realization affected them. In the end, informed worker engagement may be the ultimate pragmatic counterweight to the business interests that Judge Torrey correctly observes are not in the business—nor would we expect them to be—of promoting claims.
Michael C. Duff
Wednesday, June 28, 2017
Intersection of Workers' Compensation and Worker's Tort Action Expertly Reviewed by Law Student in New Article
The intersection of an injured employee’s workers’ compensation and third-party tort rights – how that interface works, and how the equities are best balanced – has long been the subject of academic and practical study. Under the Pennsylvania practice, most lawyers know the essential rules by heart. In this regard, the injured worker, as is the case universally, can sue a third party alleged to have been culpable in causing the work accident. The third party, however, cannot implead the employer, even if alleged to have been negligent. Heckendorn v. Consolidated Rail Corp., 465 A.2d 609 (Pa. 1983). That same allegedly-negligent employer, however, is fully subrogated to the employee’s recovery.
In a sophisticated new article, the author (a skilled student) conducts a comprehensive survey of the issue. She identifies the various approaches that have been undertaken over the decades by various states and critiques their strengths and shortcomings. She focuses, particularly, on what she perceives to be unfair results when the employer (as in Pennsylvania), cannot be joined and fault is hence not appropriately apportioned to it in the third-party action. The author concludes her impressive review with a bold proposal of her own, which she says better balances the equities. See Margaret H. Teichmann, The Burden of the Bargain: Revisiting the Predicament of Meshing Workers’ Compensation and Tort Law in Light of Widespread Acceptance of Aligning Liability with Fault, 3 Belmont Law Review 259 (2016).
Tuesday, June 27, 2017
With the important 2016 title, The Myth of the Litigious Society: Why We Don’t Sue (Chicago 2016), Professor David Engel published a book on the widespread phenomenon of non-claiming in the sphere of personal injury. (I reviewed that book in the December 2016 edition (#128) of my Pennsylvania quarterly newsletter.) As it turns out, empirical studies show that the common wisdom is incorrect: most Americans do not sue at the drop of a hat. Indeed, the contrary is true: many individuals, even with serious injuries, do not pursue the responsible tortfeasor.
The thesis of the Engel book was foreshadowed, for purposes of our field, in 2011. In that year, the journalist Peter Rousmaniere published his essay, When Injured Workers Don’t Claim, in the IAIABC Journal. See Peter Rousmaniere, When Injured Workers Don’t Claim, 47 IAIABC Journal 65 (2011), available at https://iecdp.files.wordpress.com/2011/08/journal_fall2010_complete_publication11.pdf.
Rousmaniere’s article is a review, evaluation, and analysis of the literature on the issue. He finds that literature to be compelling and, while he states that the precise level of non-claiming is impossible to discern, he believes that this pattern of behavior is common and calls into question the integrity and perhaps even the reason for being of the system. The lack of claiming when it comes to occupational diseases is particularly troublesome. The author publicized at least two studies that have since been the topic of discussion within the community. One study showed that many workers who suffer amputations have their medical expenses sponsored by group health insurance, and another showed that many roofers who sustain nail-gun injuries, never receive care. Little ambiguity as to causation usually surrounds these types of injuries, but many, nonetheless, do not seem ever to be the subject of a comp claim.
The issue of non-claiming has always been present in the Pennsylvania workers’ compensation system. As a lawyer, I encountered many instances of volunteer firefighters failing to prosecute even obvious trauma cases. They failed to do so largely because of ignorance of the law, the availability of collateral insurance, and a desire to not rock the boat. In addition, many such workers would obsequiously roll over as soon as the insurance denial was issued, regardless of whether the denial was legally cognizable.
As a defense lawyer I would also, in general, strategize on occasion with adjusters in ambiguous factual and legal situations to deny the claim and place in the injured worker’s court the decision on whether to seek legal counsel and pursue the claim. Presumably, this practice, which is in fact universal, eliminates many claims from ever being pressed beyond the reporting stage.
As a judge, meanwhile, I see many cases where the claimant was going to walk away from an obvious injury cases (like from trauma, or poisoning) and “eat” the time lost, but then is leveraged to pursue claim petition litigation because of medical bills. Many a compensation claim would never have been pressed were it not for the remorseless demands of providers (the E.R., the MRI vendor, the PT folk), that their often-considerable bills be satisfied.
Finally, both as a lawyer and a judge I have always been impressed that some workers walk away from injuries sustained in fault situations, like horseplay, unable to conceive that they are entitled to insurance benefits when they have culpability in the injury. Indeed, on occasion I see “fighting,” “horseplay,” “employee did not follow procedure” as the grounds – all non-cognizable – for a denial. I am seeing these denials, of course, because the worker then lawyered up and pursued the issue. Yet, I sense that for every tenacious litigant there is another poor devil of a workman who acquiesced in the denial and decided not to press his claim further.
Rousmaniere, for his part, identifies a number of major reasons that he believes injured workers do not claim. He notes that in academic literature these factors are referred to as “filters.” In any event, they include:
(1) The sophisticated worker’s belief that collateral benefits, like group health, sick leave, and long term disability, will be superior to workers’ compensation.
(2) Peer influence at the worksite not to claim, due to pressure to meet a management-imposed incentive program, or due to good old-fashioned “bravado.”
(3) Fear of retaliation by management.
(4) Worry about being driven into “an exhausting and potentially contentious process, as workers’ compensation is often and with some justification portrayed.”
(5) Ignorance surrounding the availability of benefits.
(6) Late manifestation of injury or disease, which makes it impractical to press a claim.
Rousmaniere recommends that state agencies be proactive in studying the issue of non-claiming, and he voices frustration that no interest has been shown by such state officials. That frustration may have to endure: the business interests that have a voice in the overall regulatory process hardly desire workers’ compensation agencies to be promoting claims. In any event, Rousmaniere’s observations and advocacy are essential to those who desire the system to work.
Monday, June 26, 2017
The editor/updater of the Larson treatise has set forth a summary and commentary on the Protz case here:
He points out, among other things, that several other states feature a "most recent edition"-type phraseology in their state workers' compensation laws (and he lists them). And, of course, while Protz is not authority in other states, "the argument put forth by Justice Wecht could, nevertheless, be persuasive in any future litigation" in those other jurisdictions.
For his part, he finds sympathy with the Protz critique: "Setting procedures and standards is hard work; many legislators would prefer to kick the can toward some other group who would make the decision. The Pennsylvania Supreme Court has signaled that the state legislature may not just give up its proxy to others."
Saturday, June 24, 2017
In the 1970’s, when liberalizing comp reforms brought, often for the first time, injured worker freedom of choice of physician, that development was seen as a significant victory. No longer would the worker be stuck with the “company doctor,” that is, the plant physician, whose credentials were not always the best and who, perhaps more importantly, was inherently conflicted.
With freedom of choice, a working class individual could receive the same type of medical services as did his middle-class neighbors a few blocks over.
As the sociologist Elaine Draper noted in her book, The Company Doctor: Risk, Responsibility, and Corporate Professionalism (Russell Sage Foundation 2003), these doubts about the quality of the company doctor (the “negative reputation” they often enjoyed), were longstanding. Draper also points out that the subject of the company doctor has been treated in literature and film.
She doesn’t mention, however, Philip Roth’s first novel, Letting Go, published in 1962. In that book (as I recently learned), the company doctor received what is surely its most negative depiction in literature.
Roth’s long novel depicts the travails of the early adulthood of three highly dysfunctional Jewish young people (a young married couple, Paul and Libby; and Gabe, a former infantry officer), in the years immediately after World War II. Among the many summits and valleys of their road towards stability is the supremely unstable Libby’s unplanned pregnancy. This development forces the pair to drop out of graduate school and sentences Paul to a place on the assembly line in a Chevrolet plant. There, distracted by his ruminations from his tasks of bolting car trunks, he suffers a serious gash to his wrist and is dispatched to the plant infirmary. There, the physician, Dr. Esposito, stitches the wound.
And gives Paul the name of an abortionist.
This theretofore non-considered option launches the couple into a (well-considered) tumult of emotion and decision-making. The preliminary trip to the office of the abortionist (Dr. Smith, a D.O. – a type of physician that also gets bad play), is horrifying (the doctor is a cold corporate executive type and his nurse anesthesist is obese and smelly). The fee, meanwhile, is $450 and will ruin their savings. Worse, an officious neighbor discovers the plan and threatens to report them to the police. In the end, the couple decide, ill-advisedly, to go through with the procedure. The rest of the book portrays the already neurotic Libby suffering the consequences of their mistake.
But in the short term, there's Paul’s follow-up visit to the company doctor: “Had everything worked out? Wife all right? Satisfied? Fine. He did not mean to pry. Only one had to check on Smitty. He fed the osteopath patients – almost one a month – but still it was wise to keep an eye on the fellow. Every once in a while Doctor Tom seemed to forget about slipping Dr. Esposito his few bucks. You know what I mean? Not an entirely professional group, osteopaths. And how’s the wrist?”
A contemporary review can be found at http://www.nytimes.com/books/97/04/20/reviews/roth-letting.html. See also generally https://www.loa.org/books/231-novels-and-stories-1959-1962.