Thursday, January 18, 2018

The Death Gap: How Inequality Kills (2017): A Physician’s Impassioned Plea for the Poor … and a Challenge to the Workers’ Compensation Community

                In adjudicating workers’ compensation cases, I have long been impressed that a major constituency of our field is the working poor.  Many, if not most, live paycheck to paycheck – just as they did in 1915, when the great crisis of uncompensated injuries and deaths led to the creation of the system.  Many others have no group or other private insurance to pay for medical care during a dispute.  True, a good number of injured workers are under Medicaid plans even before they are injured, a telling sign itself, but it is common for workers to tell me that they could not afford insurance and had not purchased any Affordable Care Act plan.

               Dr. David Ansell, a physician at Chicago’s Rush University Medical Center, addresses the experience of the working poor in his book The Death Gap: How Inequality Kills (University of Chicago Press 2017).  He asserts, and seeks to prove, via epidemiological studies, that poverty translates directly into significantly abbreviated lifespans. This assertion was certainly familiar to me: one of our judges, now retired, had grown up in straitened circumstances, and he always marveled at the long lives the parents of his mostly middle-class colleagues (like mine) enjoyed – living comfortably into their 80s and even 90s.  That wasn’t typical at all, he insisted, among the highly-leverage inhabitants of his North Philadelphia neighborhood.  

               A principal aspect of Ansell’s critique is that lack of healthcare insurance, and consequent lack of good medical care, is responsible in material aspect for this “death gap.” This is an intuitive, common-sense argument, but it is enlightening to hear a physician in the trenches of patient care tell us exactly why.  Good care, for example, can be hard to come by in poor neighborhoods, and even when patients are able to gain access to hospitals they are denied needed specialty services.  In one gun violence-ridden area of Chicago, meanwhile, no trauma center existed, and at least one gunshot victim died during his extended ambulance ride to a hospital on the other side of town.  That’s an obvious example, but harder-to-measure health hazards, leading to lower life expectancy, also exist, via the chronic stress of living in poverty. 

                Ansell, in any event, rejects the proposition that all answers about illness and mortality can be answered by the “biomedical model of disease,” which posits that “diseases [simply] arise from biological defects or imbalances in the body.” Nor, he insists, can the answer be reduced to lack of personal responsibility on the part of the prematurely diseased and deceased.  Environments generated by the structure of our society matter.  

                Ansell’s book is one of advocacy, always poised in tone but, in the end, damning of the societal forces that have helped to shorten the lives of poor African-Americans – individuals he and his colleagues treat in their practices.  These forces he collapses into the construct of “structural violence,” which he defines as “the corrosive combination of poverty and racism,” a synthesis, he charges, which has “killed millions of Americans over multiple generations in neighborhoods of concentrated poverty.”      

                Ansell provides stories of how individuals and leaders have fought back against such violence in their own lives and by way community activism.  In these chapters, the book largely centers on the Chicago with which the author is so intimate, but he could be describing several American cities. 

                One of the solutions Ansell advocates is single-payer insurance, specifically a Medicare-for-All program.  This advocacy was not surprising to me – after all, the book is a denunciation of inequality. And, indeed, a significant force towards promoting equality in precisely the realm about which Ansell writes is providing equal access to healthcare for all Americans.

                Our workers’ compensation industry has largely been hostile to a single-payer system.  Most of the arguments reflect what I consider system players worried about intrusions onto their financial and occupational turf – with the only constructive critique being that the return-to-work focus of disability and medical management (with which I have sympathy) would be disrupted.  This hostility has always been disappointing, since those of us in the field are the lead witnesses with regard to how much waste is involved in disputes over medical treatment, to wit, often endless litigation over causal connection and reasonableness and necessity of care; and amount of payment for the same.  Make no mistake – though we are said to be only a small part of the medical insurance universe, the waste involved in our system is appalling.

                Ansell doesn’t touch on workers’ compensation medical insurance, but his criticism of similar transaction costs, set forth in the context of accounts of actual patient suffering, rings true, and it buttresses the case for Medicare-for-All. 

                As to the return-to-work concern, we should also remember that European countries provide broad citizen access to medical coverage, yet still maintain workers’ compensation systems as well. These programs, notably, often focus on rehabilitation and return to work.  European plans have recently been discussed in the invaluable survey book, Ken Oliphant & Gerhard Wagner (Editors), Employers’ Liability and Workers’ Compensation (De Gruyter/European Centre of Tort & Ins. Law 2012). (I have summarized each chapter in successive issues of the Pennsylvania Bar Association workers’ compensation quarterly.)

                Dr. Ansell’s passionate work (one reviewer has called it a polemic*) presents, among other things, a thesis which is a challenge to the workers’ compensation community. The issue is whether protection of one’s own financial interests takes precedence over equal healthcare access for all citizens – and in our case, most notably, the working poor.

* See the review by Clare Bambra (7.15.2017), available at https://www.timeshighereducation.com/books/review-the-death-gap-david-ansell-university-of-chicago-press.

January 18, 2018 | Permalink | Comments (0)

Sunday, January 14, 2018

The "Ending Forced Arbitration of Sexual Harassment Act" and Workers’ Compensation

The only thing preventing workers’ compensation cases from being systematically subject to mandatory arbitration is the current preference, the whim, of employers. Any state law purporting to forbid employers and employees from entering into mandatory arbitration agreements is almost certainly preempted. Mandatory arbitration of workers’ compensation cases would be terrible for injured workers. Major studies of arbitration awards demonstrate workers fare significantly worse in arbitral forums. Moreover, under the Federal Arbitration Act there is no substantive appeal from the award of a private arbitrator.

Fortunately, there is a glimmer of hope on the horizon. As was widely reported early last month, a bipartisan group of lawmakers, including Senators Gillibrand of New York and Graham of South Carolina, introduced legislation on December 6, titled the Ending Forced Arbitration of Sexual Harassment Act, to prevent employers from enforcing mandatory arbitration agreements in instances where their employees allege workplace sexual harassment or gender bias. The legislation was prompted by a tsunami of recent, well-publicized workplace sexual harassment allegations. It has become clear that many of the claims that might have been litigable in civil lawsuits could never be brought where an employee had signed an arbitration agreement. The likelihood for underdeterrence of sexually unlawful conduct seems high where, as is the case in a private arbitral forum, damages are significantly lower, employers have typically unilaterally devised the adjudicatory structure of proceedings, and arbitrators and employers are often together “repeat players” in arbitration (not to mention that arbitrators are often directly compensated by employers).

Why is the Ending Forced Arbitration Act so significant? The premises of the Act are obviously that arbitration is not adequate to vindicate the policy of compensating individuals for sexual harassment; and that the policy objectives of sexual harassment law exceed those of the more abstract (and some like me would say dubious) policy supporting compulsory arbitration of employment (or even tort) claims. Once this kind of questioning has begun—and it will begin, either here or elsewhere—it will likely be infectious. The era of blind application of the FAA to nearly all labor and employment claims – a freight Congress obviously never meant for the FAA to carry – may be underway. The only plausible legal justification for the absurd expansion of the FAA has been that Congress has remained silent in its wake. Once Congress speaks through establishment of an exception, however, it will be forced to explain, and to make currently absent analytical distinctions. Why should sexual harassment claims be exempted from the FAA and not racial harassment claims? Why should a federal arbitration statute from the 1920s trump 21st century state tort law?

And it is the federalism question in the final line of the last paragraph that gives me most hope for workers’ compensation. If there is an area of civil law that so firmly evinces the historical state police power than workers’ compensation law, I am unaware of it. It is for this very reason that the most aggressive federal employment statute, in terms of preemption—the Employee Retirement Income and Security Act of 1974 (ERISA)—explicitly carves out workers’ compensation plans from its coverage. Let us hope that Congress is finally coming to its collective senses. The answer to putatively overcrowded dockets and allegedly overzealous plaintiffs was never practical elimination of the rule of law.    

Michael C. Duff 

January 14, 2018 | Permalink | Comments (0)

Thursday, January 4, 2018

Portable Benefits: Carrying Less to a Vanishing Point?

The problem with the idea of portable benefits – employee benefits (including workers’ compensation) provided across employers to putatively, radically different workers in the “gig” economy – is pretty simple. Seen in its best light, the idea is a half-measure crafted because we lack the political will to provide explicitly adequate benefits in changing social circumstances. Seen in a worse light, the idea represents naked acquiescence to well-heeled employers who have decided, unilaterally, that Section 220 of the Restatement Second of Agency, which contains the traditional common law test for whether an individual is an employee or an independent contractor, is too hard to apply and leads to inconsistent findings of employee status, rendering business planning unpredictable. Seen in its worst light, the idea is just another way station—with opt-out and compulsory arbitration—along a road to poverty, paved with illusions of absolute employer liberty, to the ineluctable detriment of working people.  

A long time ago, someone told me, in only slightly more polite language, that it was folly to give a former Teamster (like me) a Harvard Law degree. Time will tell. I do confess to a proclivity for asking inconvenient questions. Like these. Is the goal behind portable benefits the provision of a standard of living adequate to sustain life? Or is the goal simply to provide a vehicle for employers to pay employees the least possible benefit that our present society can, in remotely good conscience, countenance?

I am a great fan of the late William James, the famous pragmatic philosopher. James assessed truths by preliminarily assessing the “cash value” of seeking them. Some questions may not be worth asking, nor their answers worth knowing. But I think that with respect to workers’ compensation—or any of its proposed substitutes—the two questions possessing the greatest “cash value” are 1) Can we agree on the definition of an adequate benefit? How much does an injured worker adequately need to eat and have lodging? (we can start there); and 2) Once we have the answer to 1), are we willing, as a society, to provide that amount?

I am deeply suspicious that we purposefully avoid answering the first question (either procedurally or substantively) because we fear how the more powerful elements in society may answer the second.

So, to proponents of “portable benefits,” I ask, first, how much, precisely, will the package pay to injured workers in terms of indemnity and medical payments? (In fact, I would ask the same question as it relates to any manner of being injured at work, including being sexually or racially harassed or discriminated against). Saying that you do not know is unacceptable, since we now have a system which, though inadequate, is fairly well understood in terms of what must be fixed. Portable benefits advocates must also answer a second question. How do you prevent “non-portable” employers from masquerading as "portable" employers in an all-too-familiar race to the bottom? Put another way, how would you prevent regular employees from being misclassified as "gig" employees. We are presently experiencing a contagion of misclassification in the current employment law regime and I am not confident that a "gig" regime will be any less resistant to moral hazard. 

Inconvenient questions, I know. But this Teamster will not give up on benefits floors before having the answers. 

Michael C. Duff   

January 4, 2018 | Permalink | Comments (0)

Friday, December 8, 2017

The Fickle Nature of Open Courts Challenges: Developments in Utah and Florida

The Utah Supreme Court recently rejected two constitutional challenges to the Utah workers' compensation statute that were each advanced under that state’s “open access” (often known as an “open courts”) provision.  The Florida Supreme Court, on the other hand, recently upheld an open courts provision challenge under its state constitution in a medical malpractice case. Because workers’ compensation legal battles are likely to be primarily waged for the foreseeable future as state constitutional challenges, and because open courts theories are a common form of state constitutional challenge, it can be instructive to follow these kinds of cases closely.

The essence of an open courts challenge is not difficult to understand: a preexisting right is statutorily, substantively modified—arguably to the point of elimination—and a party harmed by the alteration/elimination argues that, under the circumstances, the court has effectively been “closed” to that party. The claim is usually not ignored because state open courts provisions date to John Adams’ 1780, Massachusetts Constitution, which in turn derived its open courts language directly from the Magna Carta.

One major conceptual question in these challenges is what a state believes is meant by the term “open courts” under its state constitution. A narrow reading of the phrase holds that it means no more than that courthouse doors should not be locked or filing fees set too high. (That is, it is merely procedural). A more generous interpretation views the phrase as requiring substantive legal remedies adequate to render access to the courts meaningful. I speak at length about these different interpretations here at pp. 162-172

Open courts challenges are closely related to the concept of “quid pro quo” and center on three possible approaches to evaluating legislatures’ modification or elimination of remedies: a historically tied approach, a “reasonable alternative” public policy approach, and a legislative power approach. The historically tied approach holds that the [open courts and remedies] clauses protect only common law causes of action that existed at the time of the adoption of the constitutional clause, which are to be preserved unless the legislature substitutes another adequate remedy or “quid pro quo” for the affected litigants. The public policy approach permits the legislature to limit any cause of action and remedy if it creates a reasonable alternative, but, even without creating a substitute, it may alter former rights if it acts for a very important reason or is responding to an overwhelming public need. The third theory allows legislatures broad latitude to alter or eliminate common law rights and remedies by redefining the notion of legal injury. This is often seen as a form of legislative supremacy. (More after the fold)

Continue reading

December 8, 2017 | Permalink | Comments (0)

Monday, December 4, 2017

Skillful Law Review Writer Focuses on the Heavy Burden on Plaintiff under Florida's Intentional Injury Exception

             In a new article, the author gives a short history of the workers’ compensation program -- and then sets forth a criticism of such systems when they unfairly restrict workers’ injury rights.  See Mary Haupt, Workers’ Compensation and the Remedial Waiver, 21 Barry Law Review 217 (2016).

            The writer, a recent graduate of Orlando’s Barry University Law School, focuses, in particular, on what she describes as Florida’s highly restrictive intentional injury exception. That law was added to the Workers’ Compensation Act in 2003.  

            In Florida, the worker, to make out an intentional tort, and hence avoid the exclusive remedy, must prove by clear and convincing evidence: (1) that the “employer’s conduct was ‘virtually certain to result in injury or death’; … (2) [that] the employee was not aware of the risk; [and (3), that] the employer either ‘deliberately concealed or misrepresented the danger.’” Florida Statutes § 440.11(1)(b)(2). Haupt states that this statute has been afforded sharp teeth by the courts. The leading case seems to be R.L. Haines Constr., LLC v. Santamaria, 161 So.3d 528 (5th DCA 2015), review denied (Fla. 2016). There, a worker perished after his employer directed him and other employees to install immense steel columns only 44 hours after application of a special adhesive, when the manufacturer’s “curing instructions” admonished that 72 hours must elapse before such installation; as a result of employer having ignored this prescription, a column fell, causing the worker’s death. The trial court refused to dismiss the case, but the Fifth DCA reversed, concluding that defendant’s conduct did not meet the “virtual certainty” standard.    

            The court hence confirmed that the legislature, with its 2003 amendment, had imposed a heavy burden on injured workers to make out an intentional tort claim. The author notes that she has been unable to find any reported case, since Haines, where the plaintiff has been successful in gaining a foothold under the statute. Most cases, she states, affirm trial court rulings granting employer summary judgment motions, having concluded that the plaintiff cannot prove “virtual certainty.”

            Haupt, citing a 2000 article, states that Florida is following the prevailing approach among states relative to the intentional tort exception. Most states, she posits, are declining to follow, or are overthrowing, the more liberal “substantially certain to cause harm” conceptualization of “intentional.” See Michele Gorton, Intentional Disregard: Remedies for the Toxic Workplace, 30 Environmental Law 811 (2000). The author finds this trend unsatisfactory. She reviews, in this regard, theoretical ideas surrounding the rights of the injured, and asserts that the heavy burden imposed in Florida, and in most states, constitutes an injustice.            

            The author, concluding, is impressed that workers’ compensation is a worthy system, as it “facilitates outcomes that are more efficient for employees and provide a level of certainty to employers.” “Yet,” she argues, “the exclusive remedy … should not encompass intentional wrongdoings by an employer that the employer knows or is ‘substantially certain’ will result in injury or death to its employee. Because a right without a remedy is not a right at all, as Florida case law demonstrates, the exception to the system for intentional wrongdoings should be revisited.”

 

December 4, 2017 | Permalink | Comments (0)

Monday, November 27, 2017

An Account of the Lead-up to and Enactment of Workers’ Compensation in Great Britain, 1833-1906

            The leading historian of Great Britain’s experience with workers’ compensation laws (and its predecessor laws) is the scholar P.W.J. Bartrip, who authored multiple books on the subject. The texts best known to me are Bartrip & Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833-1897 (Oxford University Press 1983); and Bartrip, Workmen’s Compensation in Twentieth Century Britain (Gower Publishing Co. 1987).

            E.P. Hennock, of the University of Liverpool, however, also wrote on the subject. I have recently prepared a summary of his account of the lead-up to, and the enactment of, British workers' compensation. It is derived from his book, The Origin of the Welfare State in England and Germany, 1850-1914 (Cambridge University Press 2007). I have posted my Cliff’s Notes-style summary at www.davetorrey.info.

            Here is a top-six list of items that are truly remarkable about the British system, which is generally said to have existed from 1897 to 1948:

1.  The creation of workers’ compensation in England did not feature a compromise under which injured workers automatically gave up the right to sue in tort. No so-called “Grand Bargain” attended the creation of no-fault liability. Employer liability theoretically endured, though a worker who accepted workers’ compensation elected out of any tort remedy against the employer.

2.  Disability and death benefits only were paid – there was no medical compensation prescribed by the law.  (Employers, however, could make such payments voluntarily and often controlled medical treatment.)

3.  No agency was created devoted exclusively to ensure enforcement of the law.

4.  No insurance mandate existed.  Employers could insure through a mutual, a commercial enterprise, or self-insure.

5.  An employer could "contract-out" of the system by setting up a special fund and obliging workers, as a condition of employment, to accept benefits from the fund and waive any right to workers' compensation or damages in tort.  However, such plans were rare, as the law required such funds to provide the same level of benefits as the workers' compensation law.

6.  Litigation was robust from the outset, and disputed cases were heard in general county courts, not before an arbitral panel or other special tribunal.  

             For a present-day account of the system, in the wake of its demise in 1948, I recommend Richard Lewis, Employers’ Liability and Workers’ Compensation: England and Wales, in Ken Oliphant and Gerhard Wagner, Employers’ Liability and Workers’ Compensation (De Gruyter/European Centre of Tort & Insurance Law 2012).  Professor Lewis’ chapter of the Oliphant & Wagner book can be read online. See http://orca.cf.ac.uk/26855/

 

November 27, 2017 | Permalink | Comments (0)

Monday, November 20, 2017

Holly Folk’s, The Religion of Chiropractic: Populist Healing From the American Heartland (UNC Press 2017), Immerses the Reader in the Origins of the Field (Part 3)

            While Folk’s book concentrates on the origins of chiropractic, which are found in the late nineteenth century, the author helpfully explores, in her final chapters, the modern history of the field and how it has evolved in the decades since World War II. 

            The author, in this respect, treats the American Medical Association’s efforts to portray chiropractic as a deviant pseudoscience.  Although successful in the 1950’s, by the 1970’s, chiropractic gained important victories.  By 1974, all states licensed chiropractors, chiropractic colleges could be accredited by the Federal government, and Medicare started to pay for chiropractic treatment. In 1992, notably, chiropractors began being commissioned as military healthcare providers.  The author also notes that “the acceptance of chiropractic into American healthcare was abetted by increased dialogue between some medical doctors and chiropractors.”

            Folk also reviews a renowned Illinois case where a chiropractor in that state led a team of his colleagues in filing an anti-trust suit against the AMA.  In 1987, the chiropractors prevailed, with the federal judge “focus[ing] on the organized campaign the AMA had run against the chiropractic profession, which was in violation of anti-trust law through the Sherman Act.”  The Court of Appeals affirmed (1989) and the Supreme Court (1990) denied certiorari.

            In her conclusion, Folk seems sympathetic to the critique that few studies exist on the efficacy of chiropractic. Indeed, some assessments may be found which discredit chiropractic, including those from the Cochrane Collaboration. These studies debunk the idea that conditions like asthma, allergies, or menstrual pain can be treated via manipulation.

            The author posits, “chiropractic is now believed to have a poor track record for healing the structural damage to the spine.  Rather, the treatment seems to be most effective for self-[remedying] conditions, like most cases of lower back pain.”  She also posits, “chiropractic treatment may actually be a form of ‘condition management,’ whose real benefit is helping patients wait out the natural healing process. Such an assessment is not too different from what chiropractors claim to be doing.  A minimally invasive touch-based therapy administered in time of acute pain may affect the body’s overall stress response and improve subjective well-being:  in this respect, chiropractic is true to its claim that ‘it works.’”

            The reader of Professor Folk’s book will not be equipped with better tools to cross-examine the chiropractor as to the mechanics of treatment, the mysteries of chiropractic signs (many of which have exotic names), or challenge the doctor with regard to duration-of-disability opinions.  Yet, the reader will be superbly briefed in understanding chiropractic philosophy and where it came from.  As Folk insists, “to really understand chiropractic is to know its origins, terminology, scientific theory and therapeutic logic in the way that chiropractors themselves do.”

November 20, 2017 | Permalink | Comments (0)

Holly Folk’s, The Religion of Chiropractic: Populist Healing From the American Heartland (UNC Press 2017), Immerses the Reader in the Origins of the Field (Part 2)

            Folk’s book, full of details and historical and cultural context, provides an epiphany with every turn of the page. The reader will, in this regard, recognize many original theories and principles of chiropractic which have survived to the present.  The reader will also visit the aggressive pushback by allopathic physicians against their chiropractic competitors (lawsuits were rampant) and the similarly still-surviving antipathy (see above) between the two groups.   

            Folk persuasively asserts that the origins of chiropractic can be traced to other folk practices of the day, like magnetism.  (Indeed, D.D. Palmer, before he discovered chiropractic, was a “magnetic” healer.)  Chiropractic, like other competing alternative therapies, was a method of care embraced by many in the late 19th century who could not accept central tenets of modern medicine, particularly the idea that germs, and other pathophysiological phenomena, caused illness.  Many people, particularly in the Midwest, and in rural areas, rebelled against doctors as elitists. D.D. Palmer, indeed, “capitalized on anti-authoritarian sentiments by presenting his treatment as an alternative to those of a dangerous, elite medical establishment.”

            The Palmers, meanwhile, elevated the idea of manipulating the spine to the level of metaphysics. They asserted that a “vital force,” that is, an “autonomous, purposeful force … in the universe,” is transmuted, via manipulation, to produce curative effects relative to human illness.  Chiropractic had a resoundingly spiritual outlook, which leads Folk to make reference in her title to the “religion of chiropractic.”

            The “vital force” effect was not limited to musculoskeletal pain.  Indeed, spinal misalignment allegedly caused any number of maladies.  Folk quotes D.D. Palmer as declaring, for example, “Cancers are but the symptoms of impinged nerves….  Cancers are the result of nerves being impinged in the foramen.”   

            The reader will also learn of the traditional view, highly offensive the profession, that chiropractors are poorly educated and operating on the margins of professional respectability.  Here, Folk brings up the drama, Come Back Little Sheba, first a play, later a movie, starring Shirley Booth.  Burt Lancaster in that film plays a chiropractor who is married to Lola, the Shirley Booth character. “Doc’s” life is depicted as having been ruined by getting Lola pregnant, marrying her, and being obliged to drop out of medical school and instead become a chiropractor.  As it turns out, Lola miscarries.  His personal and professional life thus ruined, Doc turns bitter and becomes an alcoholic binger. 

            The Palmers were colorful individuals and geniuses at marketing their newfound healing practice.  Folk, in this regard, refers to the Palmers’ relentless self-promotion as undertaken in an aggressive “entrepreneurial style.”  They advertised heavily, had their own press operation, and published periodicals full of testimonials.  Some of this promotion was even reduced to playful verse:   

No drugs or poisons deadly,
With their disastrous medley,
Into your stomach should be poured;
But by manipulation deft,
Not an ache or pain is left,
And your former vigor is restored.

November 20, 2017 | Permalink | Comments (0)

Holly Folk’s, The Religion of Chiropractic: Populist Healing From the American Heartland (UNC Press 2017), Immerses the Reader in the Origins of the Field (Part 1)

            Prior to Act 44 of 1993, which brought to Pennsylvania workers’ compensation our regime of medical cost containment, chiropractors frequently testified as witnesses in workers’ compensation cases. They would most typically testify for the injured worker, as the treating physician, but a few chiropractors undertook independent medical exams (IMEs) as well.  

            As a new defense lawyer, I found it challenging to try to prepare for a principled cross-examination of a treating chiropractor.  During law school, we had been trained to go to Falk Medical Library, at the University of Pittsburgh Medical School, to undertake research.  There, we could use the hardcopy medical literature indexes to learn about unfamiliar medical issues.  By doing so, we would better equip ourselves, or our bosses, with questions for cross-examination.  When I tried to find materials at Falk about chiropractic treatment, studies about chiropractic, examination “signs,” and the like, I came up empty.  Meanwhile, I could find little easily-accessible information by traditional research methods.  

            I knew, of course, the basics: chiropractic had been subject to discrimination in the past, including under the Pennsylvania workers’ compensation laws.  Yet, in the early 1980’s, our Supreme Court had directed that such care was to be compensated and included on employer lists of approved physicians.  I also knew of the familiar difference between “straights and mixers.”  Straights devoted themselves almost exclusively to manipulation, while mixers tended to integrate their care with other modalities, such as counseling about diet and the use of vitamins.  And, of course, I knew of the great hostility that existed for decades between general physicians (allopathic doctors) and chiropractors.

            Since I have been a judge, I observed that hostility articulated dramatically by a neurosurgeon who carries on a minor side business in IMEs.  Challenged by claimant’s counsel that his opinions were far different than the treating chiropractor, the doctor declared, in his deposition, “Please, do not degrade the institution of American medicine, and its great achievements, by using, in the same sentence as ‘doctor,’ the word ‘chiropractor.’”

            For the last two decades, a phenomenon has occurred – at least in my region, chiropractors rarely testify anymore.  A major reason is that the 1993 introduction of utilization review seemingly ended what many carriers viewed as overtreatment by chiropractors.  In this regard, it was not uncommon, before 1993, for such providers to prescribe, for a back-pain sufferer, three to five adjustments per week. Such prescriptions could never survive utilization review.  In addition, at least at the time, it was said that chiropractors felt that, for the treatments that they were able to provide, the Pennsylvania fee schedule (paying at 113% of Medicare), compensated them fairly.   

            Of course, other reasons exist for why chiropractic involvement in litigated cases is rare. Litigation itself has diminished in the wake of compromise settlements (authorized in 1996).  Further, top-notch physiatrists, orthopedic surgeons, and neurosurgeons now hang out IME shingles.  Injured worker lawyers want, and need, experts with similar punching power.

            As a new lawyer desiring more information about chiropractic, I would have benefited from Holly Folk’s new book, The Religion of Chiropractic: Populist Healing From the American Heartland (2017).  Folk, who teaches liberal studies at Western Washington University, concentrates on the historical origins of chiropractic and the profession which, a little more than a century ago, soon blossomed around it.  Folk’s study is largely an account of chiropractic’s founders, D.D. Palmer and his son, B.J. Palmer, of Davenport, Iowa.  Veterans of the field will, of course, recognize Palmer as the school usually associated, in the modern day, with the better-educated chiropractic professionals.  It was none other than these two creators of the field that founded the school. 

November 20, 2017 | Permalink | Comments (0)

Monday, November 13, 2017

Injured Worker Became Involved in Virginia Politics in Wake of Uncompensated Injury

            In the late 1960’s and early 1970’s, workers’ compensation reformers advocated for a uniform extraterritoriality provision for state workers’ compensation laws. Their goal was to ensure (1) that no worker who sustained an injury would ever be denied a forum in which to prosecute his or her case, and (2) that games-playing would not defeat the effort. In the end, unfortunately, only a few states adopted the law, including Pennsylvania, Delaware, Kentucky, Alabama, and New Mexico. Unfortunately because in Pennsylvania the law has been a success, and it defines the reach of the law with certainty.   

            Many states have extraterritoriality provisos other than that of the model law but, surprisingly, New York and New Jersey keep their rules in the court precedents.

            Extraterritorial jurisdiction, in any event, does indeed have its vagaries. A worker’s frustration with the same has now made a remarkable headline. See Daniel Marans, How A Literal Shock Inspired A Former Marine To Run For Office As A Democratic Socialist: A workplace injury and its aftermath were a political wake-up call for Virginia state delegate-elect Lee Carter, Huffington Post (Nov. 12, 2017), https://www.huffingtonpost.com/entry/lee-carter-delegate-democratic-socialist_us_5a074548e4b05673aa5997fd.

            As reported in the Huffington Post, the newly elected Manassas, VA, state delegate, Lee Carter, first became interested in politics after his back injury claim (caused by an electric shock) was dismissed by the Virginia Commission for lack of jurisdiction. Carter, an ex-Marine in his late 20’s, prevailed last week in his run as a Democratic Socialist, unseating a conservative Republican.

            Carter, whose residence is in Virginia, was working for his Georgia-based company in Illinois when he sustained his injury.  He incurred medical bills and, apparently, three months of disability. For reasons not stated in the article, his employer’s workers’ compensation carrier denied his claim. (Group health insurance apparently paid many of his medical bills).

            Carter, we are told, “decided to file a workers’ compensation claim against the company with the state of Virginia…. He reasoned that while Illinois was a resolutely pro-worker state and Georgia was equally pro-business, Virginia was the ‘Goldilocks’ option ― the perfect balance that might make the Bella Rose Group likely to strike a deal with him…. ‘I figured let’s go with the least contentious state,’ Carter said.”

            Of course, that is not how any type of legal system works and, indeed, “Carter called at least four Virginia-based lawyers in search of representation but they all refused, citing the complicated question of whether his claim was even in Virginia’s jurisdiction.”

            In the end, the Commission dismissed the case for lack of jurisdiction, finding that Carter’s contract was made in Georgia, and that the employer had no place of business in Virginia. (Carter, notably, told the reporter that the four lawyers did not suggest that he prosecute his claim in a different state – which is an unlikely omission; meanwhile, Virginia lawyers have told the reporter that the agency’s ruling is reasonable under the law.)

            Carter’s problems became more complicated in the wake of his injury: after he returned to work, his employer was unable to accommodate his part-time schedule and he was ultimately fired – an act which Carter characterizes as retaliation for pursuing, however fecklessly, workers’ compensation.

            Indeed, “the first bill Carter plans to introduce in Richmond is a measure to strengthen protections for workers against employer retaliation for filing workers’ compensation claims…. ‘It’s kind of messed up,’” he told the reporter, "'that it was easier to run a two-year election and get 11,000 people to vote for me than it was to figure out the workers’ compensation system ….'”       

            Huh? The frustrating aspect of this article is that lawyers gave Carter advice that he did not have a cognizable claim in the state.  He chose to ignore this counsel, prosecuting his claim on the same theory as did some fairy-tale heroine in choosing her most preferred bowl of porridge. 

            And, of course, instead of advocating for a strengthened anti-retaliation law, our own hero should now be arguing for Virginia’s adoption of the model extraterritoriality statute.  

 

           

           

November 13, 2017 | Permalink | Comments (0)

Wednesday, November 8, 2017

The Opioid Abuse Crisis and the Marketing of Oxycontin (Recent New Yorker Article)

            Last week, in open court, I watched a CCTV videotape of a well-dressed, middle-aged man enter a bus, take a seat, and promptly take consecutive hits of Fentanyl-laced heroin. Within moments he experiences a massive, though apparently silent, fatal reaction and dies on the spot.  His head thereupon hangs between his legs until concerned passengers notice and come helplessly to his aid. (That this is what the video showed was not disputed.)

            I didn’t, and don’t, know all of this individual's circumstances, but the shocking visual was just one more, highly vivid, example of the opioid abuse crisis that is so often in front of us in the workers’ compensation field.   

            A quick but thorough history and analysis of the role Oxycontin in the crisis can be found in a recent New Yorker article, Empire of Pain: The Sackler Family’s Ruthless Promotion of Opioids Generated Billions of Dollars – and Millions of Addicts (10.30.2017 edition), written by Patrick Keefe.

            As obvious from the title, a focus of the article is how Oxycontin was marketed.  On this point, the author quotes a lawyer characterizing how sales representatives pushed the drug in Kentucky. Purdue Pharma allegedly “pinpointed ‘communities where there is a lot of poverty and lack of education and opportunity …. They were looking at numbers that showed these people have work-related injuries, they go to the doctor more often, they get treatment for pain.’”

            Keefe’s article can now be read online for free. 

            Much has been written on this issue (the author helpfully cites what seem to be the leading texts), but Keefe’s focus on the marketing angle and the role of Purdue Pharma's owners is striking. See https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain.

 

 

November 8, 2017 | Permalink | Comments (0)

Sunday, November 5, 2017

A Note About the 2017 Iowa Amendments: The Shoulder as Subject of Scheduled Loss

            It is old news now, but the pro-business changes to the workers' compensation law in Iowa enacted, on March 30, 2017, are quite remarkable. These changes, found in H.B. 518, affect both benefits and procedure.

            Among the most remarkable changes were (1) the now-familiar creation of a rebuttable presumption that drugs or alcohol in one’s system caused the injury; (2) making partial disability awards, payable upon a worker’s return to work, based strictly on impairment, without reference, as before, to earning capacity; (3) inclusion in the disability analysis of the injured worker’s remaining work years as a factor to evaluate disability; (4) clarifying that an employer faced with a claim is not liable for its employee’s preexisting, previously compensated injuries; (5) disallowing lump sum commutations without the consent of the employer; and (6) prohibiting injured worker lawyers from collecting fees out of claimant’s disability checks when benefits have been voluntarily paid. See NCCI Legislative Activity Report, pp.1-7 (Apr. 7, 2017), https://www.ncci.com/Articles/Documents/II_LegislativeActivityWeeklyReport_2017-13.pdf. See also Clyde McGrady, Iowa Passes Bill to Slash Workers' Comp Benefits, CQ Roll Call Insurance Briefing, 2017 WL 1149131 (Mar. 28, 2017).

            Of particular interest – certainly to a Pennsylvanian like myself (we have a wage-loss system) – is yet another change: the “scheduling” of injuries to the shoulder, making benefits payable, based upon percentage impairment, for a maximum of 400 weeks. No industrial disability analysis is employed. This is a clever, yet simple, way of reducing litigation and benefits – simply take a whole category of injuries … and establish proxies for the same.

November 5, 2017 | Permalink | Comments (0)

Thursday, November 2, 2017

Wyoming Workers' Compensation Symposium #2

I'm pleased to announce that the second of our four University of Wyoming College of Law Symposia to be conducted during the 2017-2018 school year will be held on Friday, November 10, 2017 from 1-2:30 pm Mountain Time in Laramie, Wyoming. The event will be live-streamed and is free, though registration is requested. The topic of the presentation will be Scope of Coverage and Causation in Workers' Compensation Claims. We're excited to be continuing the series and hope you can join us.

I’ll be appearing with Wyoming practitioner Justin Kallal, a 2001 graduate of the University of Wyoming College of Law. https://kallallaw.com. The format will consist of a 40-minute presentation by me of treatise/hornbook law followed by a presentation by Mr. Kallal on nuances of Wyoming law. We will try to reserve 10-15 minutes at the end for questions.

The event site is here: http://www.uwyo.edu/law/events/workers-comp-symposium/index.html.  Registration is requested.

Michael C. Duff

 

 

 

November 2, 2017 | Permalink | Comments (0)

A Sociologist Takes on Legal Financial Obligations: "A Pound of Flesh" (2016)

                Lawyers and mediators in the workers’ compensation system struggling with settling cases often encounter major roadblocks: legal obligations from other spheres of the injured worker’s life. These obligations must be satisfied before the settlement can be approved – or sometimes even considered. The ubiquitous legal obligation in my state, Pennsylvania, is the child support arrearage. If the proposed settlement (or award, for that matter), is $5,000.00 or more, that arrearage must first be addressed.

             Another class of legal financial obligation, or “LFO,” can also impede negotiations. These are the obligations that are imposed on criminal defendants in addition to jail time. They regularly include fines, court user fees, restitution, collection charges and, if in arrears, interest on all of these. In my practice, I have, only a few times, run into an LFO in this category affecting a workers’ compensation settlement. However, many of the working poor (a major constituent in the litigated cases in my state), are said to be saddled with these obligations.

            If such individuals have criminal pasts and have been penalized with such sanctions, so be it. Yet, as sociologist Alexes Harris points out in her new book, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (Russell Sage Foundation 2016), the enforcement of such sanctions on the poor can prevent them from ever getting back on their feet and restored to employment and citizenship. This is so because they were poor in the first place, come out of jail penniless, and then struggle to make ends meet. The upshot of this highly leveraged situation is that are simply unable to meet their LFOs. They are then relentlessly summoned back into court, further fined, or even imprisoned for failure to pay.

            The author asserts that the poor who have committed criminal acts are in effect permanently punished. She compares the situation to the debtors’ prisons of old or, more chillingly, to institutions such as the Angola Correctional Institution in Louisiana, where poor African-American convicts would labor on prison farms.

             A Pound of Flesh is an excellent tour de force of the subject for lawyer and judge. Of particular interest is how the author observed court hearings on LFOs. Of further interest are her interviews with prosecutors, public defenders, judges, and the all-important court clerks in charge of enforcing these obligations. The author disapproves of the considerable discretion that such “street level bureaucrats” often exercise in the determination of who is excused from payment – and who must be returned to jail.

November 2, 2017 | Permalink | Comments (0)

Friday, October 27, 2017

On Polemis, Arbitration, Murphy Oil, and Workers’ Compensation

My first-year torts class has arrived at the dreaded “proximate cause” portion of the course. The issue in the cases we are reading is whether a negligent defendant, who is the “cause-in-fact” of harm, should be held liable when a long chain of unforeseeable events produces plaintiff’s harm. You negligently knock over a domino that in turn knocks over a series of dominos culminating (somehow) in the sinking of a cargo ship in a harbor eighteen miles away. You could not foresee the result. Are you liable?  You don’t think so, but the owner of the ship will be disappointed to hear that she can’t recover from you, the “but for” cause of her harm.

One of the most famous of these “proximate cause” cases is Polemis. The facts are straightforward (I’ll omit locations, it was a common law case from the old British Commonwealth). Some workmen, agents of the “lessee” of a ship, knocked a board into the wooden hold of the ship. Unknown to anyone, benzene vapors, effusing from cargo, had been building in the hold. The dislodged board created a spark, which ignited the vapors. The ship was consumed with fire and suffered extensive damage. The lessors/owners of the ship wanted to be compensated for the loss because it arose from the negligence of the lessees. The lessees argued they should not be liable because the damage was not foreseeable. The court disagreed. Because negligence caused the falling board, and the harm produced followed “naturally” (if not foreseeably) from the negligent act, the lessees were “on the hook.” In negligence law, this is known as the “direct cause” test, and many courts have subsequently come to reject it in favor of a standard requiring foreseeability to trigger liability.

My insight this week arose from a deeper appreciation that the underlying facts in Polemis were arbitrated.  The arbitrators decided the case assuming that certain legal rules applied and said they would decide otherwise if a court were to determine that the arbitrators’ understanding of the law had been wrong, which sounds reasonable. If such a case were to be decided under the Federal Arbitration Act (FAA), Polemis would never have breathlessly opined (perhaps to my students’ delight) on the nature of proximate cause. Under the FAA, decisions of arbitrators may be overturned only for fraud, corruption, partiality, misconduct, and “exceeding powers” (which does not include errors of law). Thus, the Polemis court, under the FAA, would have had no occasion to expound on direct cause. Such a discussion would have exceeded the Court’s jurisdictional powers. The Polemis discussion might have been limited to whether the arbitrators were “corrupt.” (One presumes, a short discussion). What would the litigants have known about the state of proximate cause law? Very little. I suspect the judiciary of the day would have been shocked had the claim been made that private arbitration of disputes arising under public laws should be immune from judicial review for errors of law. One can support efficient fact-finding without agreeing to the banishment of judicial review.    

Perhaps we are about to lose all judicial review for errors of law in labor and employment law cases. The Supreme Court, in Murphy Oil, is poised to decide whether arbitration agreements forbidding class actions by employees in any forum, violate private sector labor law’s (the National Labor Relations Act’s) requirement that employers not “interfere with, restrain, or coerce” employee concerted activity undertaken for “mutual aid or protection.” If the Court rules (as I expect it will) against the National Labor Relation Board’s (NLRB’s) view that such arbitration agreements violate labor law, we could see, and soon, significant curtailment of employee class actions of any kind. Indeed, although I do not think the matter is squarely before the Court this time around, I am left wondering whether private arbitration agreements may waive employee access to the NLRB itself. (Waivers of NLRB jurisdiction have been forbidden historically except in extraordinary circumstances. Given the explosive growth of the FAA, and the corresponding proliferation of mandatory arbitration, I am no longer willing to state the principle with confidence.) I have felt for some time that the only thing preventing employers from expanding arbitration agreements (thereby denying judicial review) beyond the roughly 50% of the work force (60 million workers) already covered has been some lingering NLRA questions as to their lawfulness.  Those questions may soon be resolved.

The implications of these developments for workers’ compensation seem clear. If the FAA supersedes even federal labor law (which gave birth to much of arbitration law, after all), I am hard pressed to see why an agreement requiring arbitration of all employment disputes, including workers’ compensation claims, would not be enforceable.  Many of the arguments I can raise easily against this radical proposition have been advanced unsuccessfully in other labor and employment law contexts (including ERISA, by the way), which is why I have begun writing a difficult article on the arbitration and workers' compensation. It will not do to say, “my state would not allow it.” The FAA is federal law. To say that we may soon have an important federalism question upon us is an understatement. Loss of judicial review of workers’ compensation cases is hard to imagine. Loss of a public forum for claims is even harder to contemplate.

Michael C. Duff

October 27, 2017 | Permalink | Comments (0)

Friday, September 8, 2017

First-Ever Wyoming Workers' Compensation Symposia

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

September 8, 2017 | Permalink | Comments (0)

Wednesday, September 6, 2017

Protecting Migrant Workers from Workplace Injuries

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

September 6, 2017 | Permalink | Comments (0)

Monday, August 28, 2017

A New Crash Course on the Longshore Act Published

             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….” 

August 28, 2017 | Permalink | Comments (0)

Chicago Lawyer McCready Addresses Employee Representation under FECA

             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.”

August 28, 2017 | Permalink | Comments (0)

Monday, August 14, 2017

Workers' Compensation Opt-Out, Opt-In, Exclusivity, and State Constitutionality

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

August 14, 2017 | Permalink | Comments (0)