Monday, January 16, 2017

Revisiting a Classic in Literature on Martin Luther King, Jr., Day: An African-American Steelworker, a Catastrophic Accident, and a Workers' Compensation Award in Industrial Pittsburgh

            The 1941 novel Blood on the Forge, by William Attaway, tells the unhappy story of three African-American brothers – Melody, Big Matt, and “Chinatown” – who flee prejudice and their gritty, poverty-stricken life as Kentucky sharecroppers to work in the steel mills near Pittsburgh.  The time is during or just after World War One, and the place is apparently Homestead or somewhere else up the Monongahela. 

            Life in Western Pennsylvania, as it turns out, isn’t much better than in Kentucky. The harsh industrial landscapes are shocking and repellant to the brothers, who despite their poverty have been used to the pleasures of rural living. Work conditions on the open hearth, meanwhile, are brutal, and physical danger lurks at every turn.  On top of all this the brothers have unwittingly been recruited as potential strike breakers, and they receive a hostile reception from the Eastern European immigrants who have been lobbying for better work conditions and know why the Blacks have been recruited.  (The Hungarians in this story are the bad guys.  The Irish, on the other hand, aren’t so bad.)

            The novelist depicts the brothers as being corrupted, and ultimately ruined, by their migration to the urban north and their work in industrial labor.  All three eventually succumb: Melody to jealousy surrounding an unavailable brothel temptress, Big Matt to retributive violence against the striking Slavs, and Chinatown to a catastrophic work accident. 

            Chinatown, indeed, is blinded in a sudden explosion of a blast furnace: “The steel workers understood the way of the accident. A shelf of hot metal had built itself high up in the faulty furnace.  When that shelf had broken the force of its fall had been explosive.  The upward rush of the blast had blown the entire top off the furnace.  Tons of stock had been thrown into the air.  That was why fourteen men had had to die….  It might have been better if the list of dead had run to fifteen.  Chinatown’s eyes were gone….” 

            In the end Melody escorts his blind sibling out of the mill town and down to the presumably greener pastures of Pittsburgh and “the strip, a place where rent was nearly free and guys who knew how to make out would show them the ropes.”  Facilitating this escape is a lump sum, presumably (given the year) of workers’ compensation: “Melody had a check for two hundred and fifty dollars in his pocket, but that did not seem like big money now.  It was the little price that had been paid for Chinatown’s eyes.” 


January 16, 2017 | Permalink | Comments (0)

Wednesday, January 4, 2017

Employers which Fail to Insure under the Virginia Act are Liable in Tort, as in Other States -- But Must The Injured Worker Plead and Prove Negligence?

            As is the case under most workers' compensation acts, a Virginia employer which fails to insure is subject to being sued at common law.  The Virginia employer is, in such suits, unable to raise the common law defenses of fellow servant rule, assumption of the risk, and contributory negligence.  This scheme is also common among states.  

            However, because of an oddity in the Virginia law’s language – and because of certain language in a state supreme court case – a fundamental ambiguity exists in interpretation of the law. In this regard, lawyerly thinking is not unanimous that, in such suits against the uninsured employer, the plaintiff must actually plead that the employer was negligent.  One school of thought in Virginia has apparently posited that the uninsured employer is strictly liable.

            The author of a new, well-crafted article, methodically dismantles that thinking and argues that the plaintiff in such cases must, indeed, plead negligence.   See D. Paul Holdsworth, Analyzing the Virginia Workers’ Compensation Act’s Governance of Employer Non-Compliance, 51 University of Richmond Law Review 193 (2016).

            The author acknowledges that the law does not come out and say so, but he insists that familiar rules of statutory construction compel the conclusion that negligence must be asserted.  For one thing, why list the defenses which are not available, if the employer is strictly liable in the first place? 

            The author also undertakes a multi-jurisdictional examination of states where the precise issue has reached the high courts of other states.  At least under the author’s recounting, all states require a showing of negligence.  Indeed, if any state has concluded that strict liability is the rule in this familiar situation, the author does not report on the same. 

            Of special intrigue is the fact that the Virginia Act was patterned on that of Indiana, and it turns out that the difficult proviso in question has in fact been interpreted in Indiana to require negligence.  The author points out that Virginia courts have long held that “‘judicial construction placed on the [Indiana] Act … will be considered to have been adopted along with the act in this State.’ … Accordingly, the supreme court has consistently reiterated that ‘because the Virginia Act is based upon that of Indiana,’ Indiana decisions construing its workers’ compensation legislation are ‘peculiarly applicable’ to Virginia courts.”  This point seems to be a powerful one supporting the author’s advocacy.   

            As for Pennsylvania (my state):  This writer has always taken for granted that, under the Pennsylvania law and practice, the plaintiff would have to prove negligence in uninsured employer cases. The obscure, but current, provisos of Article II of the Act, which set the rules for civil actions against uninsureds, bear out that view.  These provisos do not purport to set forth the elements of a negligence cause of action, but that is presumably because the common law action in general survives in this context and is defined in the cases.  What the law does do, at Section 202, is to make clear that, in these types of cases, the fellow servant rule is not applicable, and the employer “shall be liable for the negligence of all employes ….”  77 P.S. § 51.  If the employer is vicariously liable for negligence, this fact presupposes that the plaintiff must prove negligence. 

            It is thus submitted that the ambiguity with which the Virginians have struggled is not present in our law.

January 4, 2017 | Permalink | Comments (0)

Thursday, December 29, 2016

Compensability of Injuries from Hate Crimes and other Neutral Risk Assaults

           When Pittsburgh, PA resident Richard Baumhammers, in 2000, went on his hate-filled shooting spree and assassinated, among others, an Asian gentleman as he labored at a Chinese restaurant, the issue arose as to whether his death was work-related.  Plainly the worker was killed in the course of his employment, but did his injury arise out of his employment? 

            According to the Larson treatise, we should treat such a casualty as one from a “neutral risk,” that is, one neither intimately connected to the employee’s work (professional risk), nor uniquely connected with the employee’s private life outside of work (personal risk).  Injuries from the former are almost always compensable; injuries via the latter are not. The Larson treatise further posits that most courts hold that injuries from neutral risks, sustained while the worker is otherwise in the course of employment, should be deemed compensable – the work-connectedness is satisfied by the employee’s presence at work and lack of culpability.  It is hardly a reach in such cases to say that the injury arose out of the employment.

            Baumhammers’ assassination of the worker seems to have been a perfect example, however rare, of a neutral risk injury. A mentally ill gunman, seething with hatred of Asians, enters a venue where he is sure to find an Asian to murder, and carries out the act.  The worker has no prior relationship with the assailant.  But for the circumstances and obligations of the employee’s work, he would never have been subject to this risk of injury.  He was totally free of culpability in being victim to a random hate-crime atrocity.  Under the majority view, his injury arose out of his employment.

            As the talented Post & Schell attorney Kyle Black explains, however, this is not the analysis undertaken under the Pennsylvania Act. In his new article, Mr. Black explains that the analysis is driven by statute, specifically a proviso of Section 301(c)(1).  That proviso creates an affirmative defense, the “reasons personal” exception (also known as the personal animus exception), under which an employer contesting a claim may seek to show that the injury was for “reasons personal.” See 77 P.S. § 411(1); Torrey-Greenberg Treatise, § 4:106.  Mr. Black's article is “Don’t Take it Personally”: Explaining the Correct Interpretation of Pennsylvania Workers’ Compensation Act Section 301(c)(1)’s “Reasons Personal” Exception – and Why it’s More than Just a Matter of Semantics, PBA Workers’ Compensation Law Section Newsletter, Vol. VII, No. 128, p. 47 (December 2016). [Available from this writer:] 

            A number of states have a similar statute, as long discussed in the Little, Eaton & Smith workers' compensation law school text (West 6th ed., pp.260-261).     

             Amazingly, a fundamental ambiguity has existed in this statute since at least 1959, specifically over whether the reasons must be reasons personal to the employee or to the assailant.  Often, a mutuality of personal animus exists, so in most instances the uncertainty of language is probably irrelevant.  But what of neutral risk cases, where the assailant, like Baumhammers, has reasons personal (hatred of Asians), but the employee has no familiarity with the assailant and is completely free of culpability?  In such cases, the difference matters. 

            Mr. Black has written the definitive brief on this issue, methodically considering statutory construction, effectuation of  the Act’s humanitarian purpose, similar statutes, and the approach of other jurisdictions. He ultimately submits that the Section 301(c)(1) exception should be read to exclude only injury and death caused by an act of a third person intended to injure the employee because of reasons personal to the employee.  Under this interpretation, the Baumhammers hate-crime victim, who was in the course of his employment, who had imported no risk, and who otherwise lacked culpability, would have been deemed to have sustained a work-related death.  The employer, in this regard, would have been unable to show that his death was for reasons personal to him.

December 29, 2016 | Permalink | Comments (0)

Monday, December 19, 2016

New Scholarship and Advocacy on the Compromise Settlement Ban in Black Lung

            Compromise settlements are famously prohibited under the Black Lung Act, but the author of a highly accessible and passionate article is none too pleased about it.  See Patrick R. Baker, The Black Lung Benefits Program: Debunking the Myths Surrounding Settlement, 10 Appalachian Natural Resources Law Journal 1 (2015-16).

            The article is accessible in that it is well-written and commences with a helpful history of the law and its several amendments.  Meanwhile, the author explains the no-settlement proviso and the leading Fourth Circuit case that has put sharp teeth in the ban.  It’s passionate in the sense that he finds the complete restriction on settlements, in the present day, nonsensical.  He makes the case that, in light of the ban, the system is “broken” – a term he uses twice here to characterize the law.  (As to the leading court case, see Ramey v. Director, OWCP, 326 F.3d 474 (4th Cir. 2003)). 

            The author believes the law should be changed to allow compromise settlements.

            The author, a law professor at the Appalachian School of Law, recognizes that the ban on settlements stems from the paternalistic spirit that imbues this niche workers’ compensation law – just as it does the many state programs.  He asserts, however, that the unfortunate reality is that the inability to settle causes most employers to fight claims, with the net effect that litigation takes forever.  Indeed, many ill miners actually die before their claims are ever adjudicated.  How, he asks, can a remedial statute like the Black Lung Act aid its intended beneficiaries – coal miners – if they can never live to achieve a recovery?  Securing some level of recovery, in his view, would be better than this fate. 

            The author recognizes that the idea of settlement of these claims makes many nervous, because by its nature Black Lung is a progressive disease which inevitably worsens.  It is hence difficult, at least in theory, to come up with a settlement amount which will accurately, or adequately, compensate the miner for the condition. 

            To this concern the author has very pragmatic answers.  First, settlements could be allowed on an interim-style basis – a compromise settlement could be reached, with the miner able later to prosecute a claim for (presumably) a material worsening.  (Thus, we are talking here about settlements without final release, an idea foreign to the Pennsylvania practitioner, but not unheard of among state programs.)  Second, settlements are now common in other areas “involving personal wellbeing and health,” so why not with Black Lung?  Third, coal miners are, in the present day, much more sophisticated than they were decades ago, and are in a good position to make a decision to settle.  They are no longer at risk of “bargaining away their rights for some company script.” 

            The author, despite his disdain for excessive and misguided oversight, does not totally abandon paternalism.  In this regard, he supports review and approval of proposed settlements by the Department of Labor, pointing out that the Virginia Workers’ Compensation Commission undertakes precisely such oversight of proposed settlement of state claims. 

            P.S.: The author, throughout his enlightening article, cites another recent essay that addresses structural difficulties in the Black Lung Act.  See Brandon Kenney, Recalibrating the Black Lung Benefits Program: Removing Systematic Procedural Barriers from Administrative Proceedings, 18 University of Pennsylvania Journal of Constitutional Law 329 (2015). 


December 19, 2016 | Permalink | Comments (0)

Sunday, December 18, 2016

Florida Bill Proposes Eliminating Mandatory Workers’ Compensation – Duff’s Pithy Policy Primer

A Florida representative has recently offered a Bill that would formally undo the Florida workers’ compensation quid pro quo. This is a logical extension of recent developments in the state. Inexorably, the courts have been forced to grapple with the inadequacy of workers’ compensation when viewed in the context of the original workers’ compensation for tort quid pro quo. In Florida, such inadequacy, or modification of the quid pro quo, is much more likely to yield to constitutional challenge than in other states, for reasons I have explained elsewhere.

This leaves reform-minded legislatures with a handful of options. One is to formally undo the original quid pro quo and make workers’ compensation entirely elective, the approach that has just been proposed in Florida. This option is probably politically impossible, but we shall see how events unfold. It also reopens employers to negligence suits, unless those claims are also banned, which would trigger high constitutional scrutiny in most jurisdictions.

Another option is to acknowledge an benefit adequacy baseline and bring benefit levels up to that baseline. Policy makers resist this approach because it establishes precedent from which future arguments of inadequacy may be fashioned.

Yet another option is to deny outright a legal requirement for adequacy. Such denial is an attack on the constitutional basis of the original quid pro quo, and will be more or less successful depending on the due process and equal protection provisions of a particular jurisdiction’s constitution (whether federal or state). Severe erosion of benefits and opt-out schemes implicitly attack the quid pro quo because at the root of these gambits is the practical denial of a required benefits floor. A state like Texas—which maintains the opt-in, elective feature of the original workers’ compensation statutes in the early 20th century—avoids this problem because it preserves the right to a negligence suit (leaving the compulsory arbitration to one side). The proposed Florida Bill would similarly avoid the problem. The attack on adequacy is also ultimately an attack on the fundamentality of all personal injury remedies.

A final policy approach is to muddle the question of adequacy entirely by creating multibenefit hybrid alternative plans delivering both workers’ compensation and “other” benefits and claiming that the plans satisfy an employer’s workers’ compensation obligations. The problem with that approach is that such plans are not maintained solely for the purpose of complying with a workers’ compensation statute and are therefore governed by ERISA, whether intentionally or unintentionally. Because of that ERISA-governance, states would lose the ability to regulate the plans by operation of ERISA preemption, and indeed the opt-out laws themselves are likely preempted. Once this is fully realized nationally opt-out will fizzle unless ERISA is amended.

At bottom, given current developments, I would prefer a frankly elective system allowing for negligence suits much less encumbered by the contributory negligence and assumption of the risk doctrines of the early 20th century to a straightjacketed workers’ compensation statute. Workers would presumably do much better in a comparative negligence regime than in the tort regime of the early 20th century. If I were an injured worker, I would not want an inadequate workers’ compensation benefit to be my exclusive remedy. The Florida proposal is accordingly less objectionable to me than some others I have seen. Still, under a negligence system there would be many losers unable to make out a claim because the employer was simply not at fault. While larger tort damages might encourage adequate investments in safety in the aggregate, the previous clause would be of cold comfort to a grieving widow, widower, surviving child, or long-suffering injured worker denied a remedy. A truly adequate, state-based system still seems to me the best of existing imperfect systems. I’m open to other (good faith) ideas.  

Michael C. Duff


December 18, 2016 | Permalink | Comments (0)

Monday, December 12, 2016

LexisNexis’ Workers’ Compensation Emerging Issues Analysis (2016): Get it, Read it, Own that “Holistic Vision”!

            For the fourth year in a row, LexisNexis has published its marvelous yearbook, the Workers’ Compensation Emerging Issues Analysis.  Edited, as before, by Thomas Robinson and Robin Kobayashi, it is divided into two parts – the first a collection of essays, mostly concerning the field as a whole; and the second reporting on critical legal issues, statutory and regulatory developments, and essential court cases. 

            Plainly this is the best annual one can buy on workers’ compensation.  If you’re like me, you’ll pore over – and then devour – this 324-page manual just like you did when, as a kid, the Sears Christmas Wish Book arrived in the mail. 

            I’ve submitted for many years that the best workers’ compensation lawyers view the system broadly, in all its aspects, and stay cognizant of developments on a national level.  Nothing is more jarring for me than encountering the lawyer who is uninformed about items like workers’ compensation insurance and alternative approaches to workplace injury – like the Texas system! 

            On this precise point, the book’s contributor of a summary on the Rutgers Demise of the Grand Bargain seminar has this alarming thing to say about our field: “[T]here is perhaps no more practical, and less theoretical quotidian legal specialty than workers’ compensation, with its arcane practices rooted in oral tradition and habit.  A truly national, holistic vision is difficult ….” 

            But there’s no reason for such self-loathing …. This is the book that will help the reader achieve a broad understanding and that elusive “holistic vision.” Whatever you do … don’t miss it!  To order:

December 12, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

Professor David Engel's "The Myth of the Litigious Society": A Tort Book for the Workers' Comp Community as Well

            Do Americans really sue at the drop of a hat for personal injury?  Do we live in a hopelessly “litigious society”?  Most lawyers (myself included) have unthinkingly uttered this latter phrase, and I certainly have grown accustomed to hearing such declarations – and taking them for granted as true.

            Professor David M. Engel, who teaches torts at the University of Buffalo School of Law, will have none of it.  In his excellent new book, The Myth of the Litigious Society: Why We Don’t Sue (Univ. of Chicago Press 2016), he seeks to refute the proposition that we live in a litigious society.  Engel cites studies that show that the vast majority of personal injury victims in fact “lump” their injuries and make no claim whatsoever.  The small number of victims who do consult a lawyer, meanwhile, in fact do not file complaints.

            But why is this so?  Engel draws on research from several disciplines to theorize why most injury victims, even those with plainly cognizable causes of action, fail to seek redress.  He insists at the outset that many injury victims are not thinking logically in the first place, and the idea that logical explanations for restraint are the source of the answer is mistaken.  One must consider, instead, the effects of the subconscious on such decision-making. 

            And powerful societal forces affect that thinking. The tort reform movement of the last few years, for example, has encouraged people to automatically think of tort claimers as being of questionable character and lacking in personal responsibility.  In addition, it is not always apparent to the layperson that one’s injury has been inflicted upon him or her – that is, caused, by another via some culpable act or omission.  Also, many injured individuals may not conceive of their injuries as being injuries in the first place.  Meanwhile, studies show that family, friends, and co-workers often dissuade victims from pursuing injury claims.

            It is notable Professor Engel’s book is about tort.  Indeed, he states in the initial chapter that an individual’s mere acceptance of voluntarily-paid workers’ compensation insurance benefits is not the type of “claiming” that he is writing about.  Instead, claiming involves the injured individual taking some sort of initiative and prosecuting an action.

            Of course, Professor Engel might well have considered the contested workers’ compensation claim.  Here is a situation which does, indeed, involve the injured worker’s initiative and (usually) the retaining of a lawyer.  The issue then would become: why do so many workers not pursue their workers’ compensation denials? 

            And, as a matter of fact, Engel’s analysis of the tort situation translates into the workers’ compensation sphere.  Most of the factors that he identifies as leading to the self-repression of claims are present in our field as well.  That makes The Myth of the Litigious Society an excellent book for the workers’ compensation lawyer or judge.  One will find enlightenment on this issue on every page.  The book is also a joy to read – Professor Engel tells a good story – and flawlessly edited.  Meanwhile, at 232 pages the book is accessible, and I was able to read it through twice and was pleased at my time expenditure. 

            I’ll never hear, “our litigious society,” the same way again.     

December 5, 2016 | Permalink | Comments (0)

Sunday, December 4, 2016

Opt-Out, Workers’ Compensation Federalization, and the End of the Beginning

If I could not see a plausible road to the federalization of workers’ compensation last September and October—and I could not—I certainly can’t see such a road in the wake of the events of November. Think of the case that was being made in support of federalization at that time: Cost shifts occasioned by innovations like opt-out will place pressure on other, federal benefits systems, with unpredictable and pernicious results. Let’s just say that those kinds of arguments are likely to have less impact on the incoming administration than on the outgoing.

Furthermore, if the policy hope of federalization proposals was that an eroding, unstable state benefits structure might be buttressed with a stable, politically unassailable federal regime, what hope can such a policy garner now? We are about to embark on a period in which we will be arguing in the context of Social Security and Medicare about the desirability of “individual accounts” financed by “premium supports” (my favorite buzz phrase of the very new season). What this boils down to is the distinction between defined benefit and defined contribution models. Will everyone have a right upon retirement to a sum-certain (a defined benefit) and medical care, as long as we have made minimum threshold contributions to the system during our lives? Or will “entitlement” depend upon the wealth of individual contributors to the system, such that the wealthy will receive a lot of a benefit and the poor will receive not much (and possibly a plainly inadequate quantity) of the benefit.

This leads me back to workers’ compensation opt-out, which I would argue is in reality a first attempt at workers’ compensation “federalization.” Be careful what you ask for. I have taught both administrative law and traditional labor law and am keenly aware of the reality that often federalization—a federal structure that preempts state and local law—means empty preemption. ERISA is a wonderful example of empty preemption. While marvelously protective of employee rights in certain respects, notably I connection with defined benefit pensions (which are increasingly rare birds), ERISA has also created many regulatory dead zones—gaps in which no state regulation is allowed, but where no federal substantive regulation is present. The result is a gap—“emptiness.”  ERISA preemption has had much to do, for example, with why states have not been permitted to innovate in health care delivery reform. To the extent state laws regulate employer-provided health plans (which is most health plans), they are preempted by ERISA. Were that not the case the national health care scene would look dramatically different.

This leads to my final point. What opt-out is really “about” is empty ERISA preemption. But the reason empty preemption is so dangerous in the opt-out context is that ERISA is premised on the notion that employer benefits—especially employee welfare benefits—are entirely voluntary. An employer need not provide ERISA-governed benefits, if an employer does provide benefits it has exclusive control of the level of benefits it will provide, and an employer can terminate its benefits at any time under the Settlor Function doctrine (a trust law concept). This, of course, is at complete odds with the idea of a statutorily-mandated benefit. My great concern is that, in the chaotic reconfiguration of benefits we are about to witness, the distinction between mandatory and voluntary benefits will be entirely lost, and that people will forget the connection between workers’ compensation “benefits” and the right to a remedy for personal injury, which I will argue to my dying breath should be a Constitutional right (it is at least as important as property rights, in my opinion). If this loss of the distinction is codified in some mega-federal statute, it will be big trouble. I am becoming by degrees a staunch proponent of fighting out everything that needs to be fought out in the workers’ compensation realm on a state by state basis; a tedious process, but one less likely to leave workers’ compensation rights distorted, or lost in the shuffle.

In recent months, some folks have been inwardly laughing at me (politely, I am sure) as I have written about the stakes at play and their connection to Magna Carta. I suspect at least some of them are not laughing anymore, and my students will hear much about this theme as I teach my ERISA and Workers’ Compensation Law courses in the upcoming spring semester.        


Michael C. Duff

December 4, 2016 | Permalink | Comments (0)

Monday, November 28, 2016

U.S. Supreme Court Politics and Why Florida May Not Produce the Test Case on Workers' Compensation Benefit Adequacy

When the U.S. Supreme Court denied cert in Stahl v. Hialeah Hospital earlier this fall, certain commentary around the blogosphere seemed to suggest that the reason for the declination was a lack of interest on the Court’s part in the application of federal due process floors to state workers’ compensation.  As everyone will recall, there is an argument that White hinted at some required baseline of adequacy for workers’ compensation benefits (see my article on these issues here). The problem is determining upon what the baseline could have thought to be grounded by the Court writing in 1917. The Court has assiduously avoided writing more on the adequacy of workers’ compensation benefits, specifically, or more generally on the question of some measure of adequacy in connection with personal injury damages. However, Justice White, writing in dissent on the occasion of the Court’s dismissal of a Petition for Cert of the California Supreme Court’s upholding of California’s medical malpractice damages limits in Fein v. Permanente Medical Group, 695 P.2d 665 (Ca. 1985), stated as follows:

Whether due process requires a legislatively enacted compensation scheme to be a quid pro quo for the common-law or state-law remedy it replaces, and if so, how adequate it must be, thus appears to be an issue unresolved by this Court, and one which is dividing the appellate and highest courts of several States. The issue is important, and is deserving of this Court's review. Moreover, given the continued national concern over the “malpractice crisis,” it is likely that more States will enact similar types of limitations, and that the issue will recur. I find, therefore, that the federal question presented by this appeal is substantial, and dissent from the Court's conclusion to the contrary. 472 U.S. 892 (1985) (White, J., dissenting).

I don’t think the legal situation regarding damages capping has changed much and suspect there is some sympathy at the Court for the notion of a damages floor protected by federal due process (just as the Court has been willing to establish a due process based damages ceiling in B.M.W. of North America, Inc. v. Gore, 517 U.S. 559 (1996).  

Consider the judicial politics of the situation, however. If you were a Justice sympathetic to the notion of damages floors, why would you choose a case from Florida to fight the battle? What Florida is showing us over and over again is that its state constitution (and able plaintiffs’ bar) is capable of fighting “floor battles” on state constitutional and statutory grounds. All that is required for establishment of a floor in Florida is working out state law theoretical questions of how to bring facial challenges to statutes. One suspects that the recent Florida trial level case insisting that NCCI rate setting proceedings comply with the state’s open meeting, Fee v. NCCI and the Florida Office of Insurance Regulation (Nov. 23, 2016), is but another step on the road to a constitutionally based theory of benefit adequacy. In any event, if I were a clerk to a Supreme Court Justice I would not be focusing on Florida for a test case on the workers’ compensation race to the bottom. There are better candidates out there and they are likely to make themselves known sooner rather than later.   

Michael C. Duff

November 28, 2016 | Permalink | Comments (0)

Tuesday, November 15, 2016

The Cancer Presumption in Workers' Compensation

What is a legal presumption? 

Can a legal presumption be rebutted by sufficient contrary evidence?

Wisconsin workers’ compensation law contains many presumptions.  For example, for firefighters, it is presumed that if a firefighter has cancer, the cancer is employment-related.  The Statute applies to any State, County, or Municipal firefighter who has worked for ten years with at least two-thirds of the working hours as a firefighter who has cancer of the skin, breast, central nervous system, or lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive systems.  For that firefighter whose disability or death is caused by cancer, the cancer diagnosis is presumptive evidence that the cancer was caused by employment.  However, no presumption exists for firefighters who smoke cigarettes or use tobacco products for claims after January 2001.  (Wis. Stat. §891.455 Presumption of Employment Connected Disease: Cancer)

Other presumptions in Wisconsin law include a presumption that a youthful worker (under age 27) is presumed to be able to earn the maximum wage rate by the time he reaches age 27, for purposes of Permanent Partial Disability, disfigurement, or death.  For example, a McDonald's burger-flipper earning $10 per hour who has a severe burn is presumed (instead of the $200 or $300 he actually earns per week) to be earning $1,400 per week under the Youthful Age Presumption.  Evidence of the worker’s likely inability to earn the maximum wage (due to cognitive or academic deficiency or similar lower earning work history) can be used to rebut the presumption and therefore limit the maximum Permanent Partial Disability or disfigurement award.

In a recent cancer case, the Pennsylvania workers’ compensation board found a firefighter cannot receive workers’ compensation benefits for prostate cancer because he failed to show his cancer was work-related despite a statutory presumption for firefighters.  The firefighter began working for the City of Philadelphia in the 1970s and retired in 2006 after a diagnosis of prostate cancer.  He filed a workers’ compensation claim saying his cancer stemmed from carcinogens he was exposed to while working as a firefighter, such as diesel fumes from fire trucks, second hand tobacco smoke from co-workers, and smoke from burning debris he encountered while fighting fires.  Note he also acknowledged he smoked an average of a half pack of cigarettes daily since the 1960s.  His doctor’s testimony that his carcinogen exposure caused the prostate cancer was rebutted by the City’s physician indicating that prostate cancer is typically more of a “disease of aging than it is of external influence.”  The Judge, in denying the claim, noted “Any elevated risks for prostate cancer among firefighters might also be explained by other factors, such as detection bias, ethnicity and geography.”

The cancer presumption in Wisconsin (for non-smoking firefighters) would be more difficult to rebut, but factors such as family history may prove the “other evidence” necessary to rebut the presumption.

Thomas Domer


November 15, 2016 | Permalink | Comments (0)

Wednesday, October 26, 2016

Symposium: "The Demise of the Grand Bargain" -- A Report, Part II

... More of my report, here, on the September 23, 2016 symposium at Rutgers-Camden Law School ....

            As noted in my previous post, the final version of the symposium papers will be published in the Rutgers Law Review. For now, here are five points that I found of particular interest.    

  1. Professor Burton, in a reprise to prior advocacy, insisted that state workers’ compensation programs can still work better with a pro-active agency. See John F. Burton, Jr. & Monroe Berkowitz, Paean to an Active Workers’ Compensation Agency, John Burton’s Workers’ Compensation Monitor, Vol. 2, No. 7 (Sept./Oct. 1989) (available at
  1. Professor Burton (as he has in the past) questions whether contingent fees for attorneys in workers’ compensation are the best method of compensating lawyers. He stated that he believes that lawyers should indeed be paid, but he suspects that the contingent fee awakens in the lawyerly mind an inappropriate desire to compromise- settle and lump sum cases. Perhaps, he ventured, the most generous fees should be payable to lawyers in cases where his or her representation has facilitated a return to work for the injured worker.
  1. Professor Williams, of Rutgers Law School, an expert on state constitutional law, encouraged lawyers fighting drastic workers’ compensation reform to use state constitutional resources. Of course, such an approach was employed aggressively by Attorney Bob Burke in Oklahoma, who, armed with the Oklahoma Constitution, achieved the striking down of opt-out. (The state constitution was also employed in Oregon, where the state supreme court applied the Oregon Constitution’s “Open Courts” proviso, which has its genesis in the Magna Carta, to declare that an injured worker’s rights under both the compensation act and in tort could not be abolished.)
  1. Professor Justin Long, of Wayne State University Law School, encouraged the audience to conceptualize “retrenchment” in workers’ compensation law as another example of a larger attempt of employers (and individuals) to escape the public system. Mandatory arbitration clauses are another example. To this writer, the strategic effort of employers to detach themselves from traditionally acknowledged social responsibilities reflects the general decline in commutarianism about which much has been written.
  1. Professor Burton does not believe in promoting federal standards anymore. Of course, this was his theme in his Pennsylvania Centennial address in June 2015. See John F. Burton, Jr., Keynote Address for the Centennial Celebration of the Pennsylvania Workers’ Compensation Program, Hershey, PA (June 1, 2015), available at (last visited October 3, 2016). Burton insisted that the “playing field is very different now” than it was in the 1970’s, when the Commission, which he headed, published its nineteen voluntary recommendations.  Federal standards, in the present day, “are not a practical solution.”

            If you're like me, you'll be looking for that May 2017 law review edition.  I will summarize the articles at length when they're published!

October 26, 2016 | Permalink | Comments (0)

Symposium: "The Demise of the Grand Bargain" - A Report, Part I

        The Pound Civil Justice Institute, in partnership with Northeastern University School of Law and the Rutgers Center for Risk & Responsibility, recently convened a one-day academic symposium, “The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century.”  Some of the papers presented (most of them not in final form), can be found at  I was pleased to attend as a "discussant," as was Professor Mike Duff of this blog project.  

        The critical presentations (and their presenters) were as follows: (1) Work Injury and Compensation in Context,1900 to 2016, Emily Spieler, Northeastern University School of Law; (2) Workers’ Compensation at a Crossroads: Back to the Future or Back to the Drawing Board?, Alison Morantz, Stanford Law School; (3) Can State Constitutions Block the Workers'-Compensation Race to the Bottom?, Robert F. Williams, Rutgers Law School; and, finally, (4) Outside the Grand Bargain: The Persistence of Tort, Robert L. Rabin, Stanford Law School.  These papers will be published in the May 2017 issue of the Rutgers Law Review.

        As one can infer from the title of the symposium, the focus was on the slow but unmistakable swing of the pendulum away from workers’ compensation laws solicitous of worker interests and towards business. The most dramatic (nay, nihilistic) manifestation of that swing, of course, is the opt-out movement, which generates proposed laws that permit employers to opt out of the system if they establish private plans of their own design – while conveniently retaining the exclusive remedy.

            The first major paper, presented by Professor Spieler, first traces the history of workers’ compensation from its beginnings to 1972. In that year, workers’ compensation largely rebooted (my term) and, in Professor Spieler’s view, was reconceptualized by National Commission leaders as one which depicted adequacy of income replacement as essential to an effective system.  Thereafter, most states responded to some degree and liberalized their laws (Pennsylvania is a major example), but since 1980 retraction has, for the most part, been the major feature of legislation in the field.

            As a commentator on the panel, I noted that Pennsylvania is a jurisdiction where we have, to date, avoided the harshest aspects of retraction. While duration of disability benefits to all but the most severely impaired became limited in 1996, our injury definition and course of employment doctrine has not been the subject of retraction; Pennsylvania covers occupational diseases generously, and with presumptions; aggravations of pre-existing conditions can be compensated; Frye, not Daubert, guides the admissibility of expert opinions; and the rule of liberal construction endures.

            True, agents of change have promoted laws that would further limit employee choice of physician, and regulate physicians in how they treat injured workers, but to date these retractive proposals have not gained a foothold. I did agree that the increasing popularity of lump sum compromise settlements (and increasing lack of oversight of the same) coupled with the ubiquitous demand that workers resign or agree not to reapply, signaled loosening of the idea that the system should focus on worker rehabilitation – another ideal of the National Commission. It seems in the modern day, rightly or wrongly, that most claims have become, via C&R, commodified, and rehabilitation is not even given lip service. Here I can only speak for my state. One of my co-panelists, the distinguished Louisiana lawyer Chuck Davoli, seemed less concerned on this point. Settling and resigning, he noted, gives the worker a chance to put his claim behind him and move one.

            Professor Spieler’s analysis (and those of others, particularly Professor Burton), that retractive legislation in many states has been facilitated by the decline of the labor movement, rang true to me. Burton, notably, stated that unions have little voice in state legislatures, and the “AFL-CIO nationally does not have workers’ compensation on its agenda.” “Workers’ compensation,” he insisted, “used to be a much more important item for labor.” As a result of this apparent decline, it seems that in many legislatures, trial lawyers now play a key role in protecting worker interests.

            And, of course, when it comes to the litigated case, the claimants’ bar is the injured worker’s only advocate. Retractive reformers know this, and have advanced laws in other states designed to limit lawyer participation. While too much lawyer and judge involvement undoubtedly exists, the unfairness of depriving injured workers of legal counsel is obvious if for only one reason – the employer and carrier will always have insurance and legal experts on their side.

            The presenters at the conference were mostly of one mind that retractive reform threatening demise was unsatisfactory. Some presenters, however, were only presenting data or, for example, explaining state constitutional provisos, and I did not detect their opinion on the overriding – sometimes passionate – theme of the conference.

            Perhaps the most remarkable presentation was by articulate Rutgers law professor Adam Scales, who suggested dismantling the system, promoting universal insurance, and allowing some level of employee tort actions against their employers.  (Watch for Part II of my report!)

October 26, 2016 | Permalink | Comments (0)

Tuesday, October 25, 2016

Teaching Worker Safety

In this post, I want to raise a general question about the place of workers’ compensation in the law school curriculum.  At many law schools, the “core” labor and employment courses include: Employment Law, Employment Discrimination Law, Labor Law, and Employee Benefits.  A course in Workers’ Compensation may or may not be included as a fifth course in that core curriculum, and it may not be offered as regularly as some of the other courses in the labor and employment field.  A survey course in Employment Law may touch upon the subjects of workers’ compensation and OSHA, but many such courses omit them and probably none cover them in great detail. So where does workers’ compensation fit, and how might the course best be structured to serve our students? 

The practice of workers’ compensation law is highly specialized and often characterized by state-specific details (and the resulting state-specific acronyms and jargon).  As just one example, in Florida and some other states the concept of a “major contributing cause” (MCC) provides a critical limitation on recovery.  Likewise, familiarity with state-specific developments such as Florida’s recent invalidation of a strict attorneys’ fee cap is important for those considering entering practice in the field. So, perhaps students are best served by specialty Workers’ Compensation courses that focus on the general structure of state workers’ compensation statutes, their historical development and limitations, and significant time studying the unique state-specific provisions in the jurisdiction where most of the school’s graduates will practice.    

On the other hand, an overly-narrow focus on the details of a single state statute may risk losing the forest for the trees.  A complete understanding of the role of workers’ compensation in our society really requires at least some critical consideration of theories of market behavior (compensating wage differentials for risky work), the tort system alternative/precursor to workers’ compensation systems, and other governmental regulation of worker safety (OSHA).  Students ought to consider whether we need workers’ compensation laws at all; if so, why; and how should they be structured?  To that end, I have experimented with a small-enrollment seminar course titled “Worker Safety Law and Policy.” The first few weeks of the course are devoted to understanding market theory, compensating wage differentials, and the identification of potential market failures that might justify legal intervention. Then we move to a consideration of the tort system precursor (and its FELA iteration) and the historical limitations of tort, including the unholy trinity defenses. Next we examine the history and structure of workers’ compensation laws, with a special focus on some key provisions and developments in Florida law. We also consider alternative approaches, like the different opt-out systems in Texas and, until recently, Oklahoma.  Finally, we turn to OSHA to consider whether there is a residual need for command-and-control type regulation of workplace safety and, if so, how it might best be structured to counteract market failures.  Understanding workers’ compensation from this broader, more theoretical perspective may help students gain a better appreciation of what the Grand Bargain represents and what is at stake in challenges to current state laws.  In my experience, I have found that this course structure works quite well, although it necessarily leads us to spend less time on some specific aspects of the Florida statute than would a typical course on Workers’ Compensation.

Given that many of the contributors and readers of this blog practice in the field, I’m curious about what others think is the best way to approach the subject of workers’ compensation in law school.  Where does workers’ compensation—or, more broadly, worker safety—fit?

Jason R. Bent

October 25, 2016 | Permalink | Comments (0)

Sunday, October 16, 2016

More Devils in the Details of Workers' Compensation Federalization

For those attempting to imagine the federalization of workers' compensation, I would suggest that the nuts and bolts not be forgotten. In a truly federal system, cases would have to be heard in some type of federal forum. Consider that -- as Jon Gelman noted today on one of his blogs -- the Social Security hearing backlog has reached historic proportions. As of last March, there were 1,114, 079 pending claims awaiting a hearing decision with an average age of 318 days. The age and processing time of SSDI claims have been steadily increasing since 2010. I have had personal experience with this backlog in my small, rural state of Wyoming. It took three years for my uncle's (clearly meritorious) SSDI claim to make it to the precipice of hearing. I resolved the claim informally the day before the hearing. It has been 19 years since I handled SSDI claims as part of my job, but even back then it was very hard to get to hearing. I cannot help but think about this nuts and bolts experience with SSDI when reflecting on a federal workers' compensation system. I honestly wonder whether a federal administrative adjudication system could be sufficiently nimble to deal with the day to day claims volume that would come with the territory. And all of this comes before the substantive dilemmas to which I have alluded in prior posts.

Michael C. Duff    

October 16, 2016 | Permalink | Comments (0)

Wednesday, October 12, 2016

Listen, then speak

During the last month or so there has been a remarkable amount of deep thinking going on about the condition of workers’ compensation in the United States. On September 23, I had the privilege of participating in an academic conference at Rutgers Law School titled, “the Demise of the Grand Bargain.” It was quite a thrill to have the opportunity to share a stage with academic luminaries John Burton, Emily Spieler, Robert Rabin, Alison Morantz, Adam Scales, Bob Williams, George Conk, and Price Fishback. This blog’s own David Torrey also ably provided a judicial-academic perspective, while Workers’ Injury Law & Advocacy Group (WILG) official Chuck Davoli represented a perspective from the claimants’ Bar.

Then, on the September 26, I was privileged to address WILG’s annual convention on ERISA/workers’ compensation opt-out issues. The audience was gracious enough not to get up and walk out as I droned on discussing very long (too long!) statutory passages from ERISA.

Finally, last week, the Department of Labor gave a presentation and released a report on the state of workers’ compensation. Since that time, I have been asked repeatedly whether I thought workers’ compensation was likely to be “federalized.”

I have tried hard to say as little as possible in the wake of this activity in order to allow as much as possible of what has transpired to “sink in.” I find that at the end of this activity I have come away with the following points:    

  • I do not believe that workers’ compensation is on the verge of being taken over by the federal government. I simply do not buy that there is sufficient political will in the country to accomplish something of that magnitude. The amount of legislative resources to accomplish such a task would be larger than many imagine. Large sections of ERISA and the Affordable Care Act would have to be rewritten. It is not clear to me who would (or could) do the writing.
  • Related to the foregoing, to the extent that the Grand Bargain continues to be any kind of actual negotiation, I am at a loss to understand how the winners in the current status quo could be forced to the bargaining table. Who bargains when they are winning?
  • I think much more likely than the dramatic scenarios that have been under discussion is an ongoing (agonizing) state-by-state challenge of an in-progress race to the bottom that will be tightly focused on individual states’ constitutions. The state challenges will take different forms: special laws (as in Oklahoma); equal protection (as in New Mexico), state due process; access to courts; right to a remedy, & etc. These challenges will center on rights analyses because, at the state level, it is much less easy to obscure the original bargain of tort for workers’ compensation rights and remedies.
  • In connection with the previous point, I do think that the Department of Labor (and others) will increase their investigative focus on the adequacy of workers’ compensation benefits and, to the extent increased study demonstrates persuasively the inadequacy of benefits, I think it could influence the state-law challenges I referenced above.  
  • Cost shifts to federal programs will be difficult to measure because they presume stable Federal-State baselines that have in fact been deeply influenced by state-based causation standards. In other words, it is sometimes very difficult to say that a shift to the federal system would have occurred in the absence of changes to state-based causation standards (my thanks to Rutgers Law Professor Adam Scales for helping me to understand this point).
  • The opt-out phenomenon is not over. Shaw v. Delta Airlines very clearly provides states with the ability to allow compliance with workers’ compensation statutes through ERISA-governed plans. I suspect Oklahoma’s statute was a first draft; we are likely to see others. Moreover, not every state’s constitution will allow for the kind of “special law” or equal protection analyses that scuttled opt-out in Oklahoma.

Michael C. Duff

October 12, 2016 | Permalink | Comments (0)

Saturday, September 24, 2016

Breaking Down Rodriguez v. Brand West Dairy & the Farm-Ranch Worker Exclusion

At first blush, nothing was especially remarkable about the workers’ compensation claims of chile picker Maria Aguirre and dairy worker and herdsman Noe Rodriguez, claims that would have the effect of extinguishing the Farm-Ranch workers exclusion last June in Rodriguez v. Brand West Dairy, 378 P.3d 13 (NM 2016).  Aguirre slipped in a field and broke her wrist while picking chiles. Rodriguez was pushed up against a door and “head-butted” by a cow. Each injury would almost certainly have been compensable under general principles of workers’ compensation law in that they arose “by accident arising out of and in the course of employment.” Neither claim was accepted as compensable during early-stage, administrative claims processing, however. Certain categories of agricultural workers had always been denied coverage under the New Mexico workers’ compensation law. Indeed, the exclusion is currently in effect in seventeen states. In most of these states, employers take on workers’ compensation coverage voluntarily, and many larger employers immunize themselves from tort liability, the immunity being available only to employers covered by a workers’ compensation statute. The claims eventually became noteworthy because of how the New Mexico Supreme Court analyzed them.   

The U.S. Constitution gives state legislatures broad latitude to enact laws treating similarly situated individuals differently. Generally, if a state legislature has a rational basis for treating workers differently from the general population, or for treating one group of workers differently from another group, the legislation creating the differing treatment will be upheld provided it is both solely economic and rationally related to a legitimate state interest. The burden is on the plaintiff to prove that it is neither. This lowest, rational-basis judicial scrutiny contrasts with intermediate scrutiny, which is reserved for laws creating sex-based classifications or for legal restrictions based on illegitimacy. When intermediate scrutiny is triggered, the burden is on the state to show that the law or policy being challenged furthers an important government interest by methods substantially related to that interest. The most in-depth judicial review is termed strict scrutiny and is triggered when a fundamental constitutional right is infringed, or when state action applies to a suspect classification, such as race or national origin. A good deal of criticism has been leveled at this taxonomy because it effectively limits review of most legislative action creating classifications of persons to a rational basis review that tends to summarily uphold the legislative action. 

Continue reading

September 24, 2016 | Permalink | Comments (0)

Tuesday, September 20, 2016

Workers' Compensation and the Role of Agency Medical Directors

            In my experience, many beginning workers’ compensation lawyers are unfamiliar with the state administrative system which is charged with operating the workers’ compensation program as a whole. Thus, in teaching workers’ compensation, I always review in detail the responsibilities of workers’ compensation agencies in their oversight and regulatory functions.

            This aspect of workers’ compensation is treated nicely in the Little, Eaton & Smith workers’ compensation textbook (first sections of Chapter 10), and it is also the subject of Professor Duff’s book, similarly at Chapter 10.  

            A neglected subject (including by myself) in this area is the role of agency medical directors.  I was thus pleased that the managed care expert and blogger Joe Paduda has published the edifying article, “Where are the Medical Directors?,” in the new issue (July 2016) of the IAIABC periodical Perspectives. See  As to Mr. Paduda’s blog, see

            Paduda wonders out loud why more legislatures do not create, in their state workers’ compensation agencies, a strong medical director. By his count, only seven states do so.  The familiar example is Colorado, where Dr. Karen Mueller is well-known for having been a leader in developing medical treatment guidelines for her state’s system.  However, Paduda also identifies Washington and Ohio (both, notably, fund jurisdictions), as major states that have influential medical directors.  In both states, for example, these officials have developed opioid use guidelines.

            In Paduda’s view, the rapidly-changing medical treatment world calls for effective agencies to have this type of leadership.  He asserts, specifically, that state agencies with medical directors are better equipped and positioned to address challenging medical issues that develop, including the opioid abuse crisis and other over-utilization of medications.

            The idea of a medical director is unfamiliar in Pennsylvania (my state) – our Act has never provided for such a position.  Thus, Pennsylvania is a jurisdiction where Paduda’s rhetorical query applies with full force.  It is notable that the Pennsylvania agency, like many in the nation, has always been on the passive side in terms of regulatory policy.  More room (I am thinking), presumably exists for this sort of pro-activity in fund states, where administration and oversight of the law is comprehensively managed by state government.

            What, precisely, are the responsibilities of such officials?  Paduda explains that medical directors set policy, provide guidance and input into agency decision-making, review medical treatment, participate in guideline assessment, educate legislators, testify with regard to proposed legislation, and develop recommendations for new medical conditions and treatment.  He points out a problem with not having such a position: agencies are, as a result, dependent upon special local interests, like medical societies, for the development of policy and promulgation of regulations.  

September 20, 2016 | Permalink | Comments (0)

The Applicability of “No-Fault” Liability – How Far is Too Far?

One of the most controversial Illinois Supreme Court opinions regarding Workers’ Compensation is Interstate Scaffolding v. Illinois Workers Compensation Commission, 358 Ill.App.3d 1040 (2008). In Scaffolding, an injured worker, in an accepted case, was back working on accommodated light duty restrictions. An argument arose between the worker and his employer regarding his pay. The injured worker in anger over the dispute, took matters into his own hands and vandalized company property and was caught. He was terminated from employment immediately. What did the clever attorney for the injured worker do? He demanded the immediate payment of weekly temporary total disability benefits be paid to his client. It is now obvious why the case made it to the Illinois Supreme Court, which is a rarity.

            What did the Supreme Court do? They told the employer’s carrier to pay the injured worker just as his lawyer had suggested. Why? First, the Court undertook a thorough and detailed investigation into the Act itself. They did so of course hoping that within the four corners of the Act, the question would be addressed. It was not. The Court  used this absence to reach its holding, reasoning that since the Act was silent, the commonly accepted rules regarding payments of benefits applied. Those rules in Illinois are that temporary weekly benefits are due until a time that the injured worker’s condition had stabilized as long as the case is accepted and the injured worker has either a valid off-work note from his physician or light duty restrictions from his physician which cannot be accommodated by the employer.

            This decision changed the landscape of Workers’ Compensation in Illinois, as before the decision, practitioners almost universally accepted amongst themselves that a termination for cause precluded weekly benefits going forward. I was at the first docket in my region after the decision and the docket was abuzz with conversations between the attorneys. Of course, injured workers attorneys like myself, lauded the courage of the Supreme Court’s strict review of the statute, because quite frankly, we liked the outcome. Our opponents representing employers were beside themselves with the Court and cried foul. Another decision from a pro-worker Court had been sent down from Mt. Olympus to their viewing.

            To bolster their disdain for the decision, counsel for employers, almost in a hive mind, were making various versions of this slippery slope argument, that if Scaffolding is to remain the law of the land, what happens when an injured worker shoots his boss? What happens when he steals merchandise? What happens when….insert horrible act. In fact these arguments make sense.

            In Illinois we tend to only have the legislative stomach to reform about once every five years or so. There was a major reform in 2011 and the Scaffolding “problem” was pushed to the sideline and no amendment was made to the Act regarding termination for cause and its affect on weekly benefits. We had bigger issues like causation standards to grapple over. The proverbial “can” was kicked down the road. It is however only a matter of time before one of these “horrible” fact patterns occurs.

            What is the answer? Should the legislature carve out some kind of felony exception to receiving weekly benefits? What would that look like? Where will the bright line be? Enforcement would certainly be an issue. How far is too far to protect the bargain? Only time will tell. Stay tuned, because as most commentators would agree, there is no place like Illinois for the law and politics.

Jason Caraway

September 20, 2016 | Permalink | Comments (0)

Tuesday, September 13, 2016

Oklahoma Opt Out Law Struck by Oklahoma State Supreme Court

In a not-unexpected development, the Oklahoma Supreme Court has today struck down that state's workers' compensation"opt out law," the Oklahoma Injury Benefit Act. The Court narrowly based its decision on a portion of the Oklahoma constitution regulating "special laws":

Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.  

The Injury Benefit Act (IBA) purported to be an alternative to the conventional Oklahoma Act - the Administrative Workers' Compensation Act. While the IBA required opt out employers to provide the "same form of benefits" as under the conventional Act, it also explicitly permitted them to establish alternative benefit plans not complying with large swaths of the conventional Act. Thus, when the plaintiff suffered an injury allegedly contributed to by a preexisting condition, the employer's alternative benefit plan concluded that the resulting disability was not an injury as defined by the plan. Because the IBA also provided that the terms of an alternative plan were the exclusive remedy for an injured employee, the failure of coverage left the plaintiff with no remedy. Because employees of non-opt-out employers were not summarily excluded from coverage under the conventional Act, the plaintiff was treated differently than similarly situated employees of non-opt-out employers. Furthermore, the IBA on its face created the conditions for systemic disparate treatment of injured employees and was accordingly a prohibited special law.

Although there will be broad expectation that the Oklahoma decision has "stopped opt out," I would be hesitant to reach such a sweeping conclusion. The state constitutional provisions in Oklahoma differ significantly from those in many other states. Typically, legislatures are given broad latitude as a matter of state constitutional law to effectuate changes to injury remedies under a deferential "rational basis" standard of review. For that reason it is not at all clear that the Oklahoma ratio deciendi could be persuasive outside of Oklahoma. Moreover, the ERISA issues that would likely be central to opt out litigation outside of Oklahoma were only cursorily addressed in a concurrence to the majority opinion. While a full ERISA analysis is beyond the scope of this post, suffice it to say that there remain substantial ERISA questions that can only be resolved by the federal circuit courts.

Still, perhaps the architects of "opt out" statutes will conclude that the battle to establish similar statutes throughout the country is not worth the cost, both in terms of money and of negative public relations. My suspicion, however, is the this was the first round in a multi-round fight. Download Vasquez supreme court opinion

Michael C. Duff

September 13, 2016 | Permalink | Comments (0)

Tuesday, September 6, 2016

Fault: Creeping Back Into Workers' Compensation

Workers’ Compensation is a compromise. As originally crafted in 1911 and as interpreted, Wisconsin Workers’ Compensation is a compromise in which both employers and employees surrender certain advantages in order to gain others that are deemed more important. Employers give up the immunity that would otherwise apply in cases where they were not at fault and employees surrender their former right to full damages in the few instances when they could recover under tort law and instead accept more modest assured benefits for injuries and deaths (without having to prove fault).

The concept of negligence should play no role whatsoever in the workers’ compensation system. The doctrine of liability without fault is part of the compensation system; the 1911 legislature attempted to guarantee payments by the employer for injuries arising out of and in the course of employment. The economic burden shifted from the employee to the consuming public.

Traditionally, the only vestiges of fault and negligence that remained in Wisconsin involved penalties involving employer or employee safety violations. If an employee was hurt because of the employer’s safety violation, the benefits to which the worker was entitled were increased by 15% and paid directly by the employer. Similarly, if the employee committed a safety violation causing injury, benefits from the insurance carrier or self-insured employer could be reduced by 15%.

Recent revisions in the law (2015 Wis. Act 180 made significant changes to the workers’ compensation law—for employers and employees. This blog will explore those changes in a series of upcoming posts) effective March 2, 2016, chip away at the “Grand Bargain,” the legislative deal made in 1911 where workers surrendered all rights to sue their employers for negligence in return for which the employer paid for work-related injuries regardless of fault.

An employee who had sustained a work-related injury and would return to work for an employer has always received the protection of the Workers’ Compensation Statute. Even if the employee was terminated for good cause during a post-injury healing, he was entitled to continued receipt of Temporary Total Disability benefits (2/3 of time-of-injury wages). However, effective March 2, 2016, a new Statute now states that if an employee is discharged or suspended for misconduct or substantial fault, as these terms are defined by the Unemployment Compensation statutes, the employee’s Temporary Total Disability benefits could be suspended. The legal standard for what constitutes “sufficient grounds for termination for misconduct” and “substantial fault” will be defined by the Unemployment Compensation Law (These are employer-friendly changes that were implemented in the UC system in 2014).

Going forward, administrative hearings in both the Unemployment Compensation and Worker’s Compensation forums will occur. The issue of whether a decision binding on one forum will be binding on another remains to be seen. A worker could face the “double whammy” of being denied benefits in both the workers’ compensation and unemployment compensation case.

Additionally, the new law indicates that an employee who violates an employer’s drug and alcohol policy at the time of injury (where the violation is causal to the injury) is not entitled to anydisability benefits under the Workers’ Compensation system. This harsh 100% penalty is a substantial change from the now pedestrian 15% diminution that formerly applied to injuries before March 2, 2016.

Lastly, the new law allows apportionment of Permanent Partial Disability in cases of traumatic injuries between that permanency caused by the work injury and that “caused by other factors.” The statute is silent as to the meaning of the term disability, or “other factors,” and the problems raised by the possible interpretations of these terms will be determined in subsequent court decisions.

The net result will clearly be more disputes in the supposedly “no fault” compensation system—likely resulting in more litigation and potentially raising the cost of workers’ compensation for all stakeholders.

Thomas Domer


September 6, 2016 | Permalink | Comments (0)