Thursday, March 22, 2018

Kentucky’s Proposed Assault on Permanent Partial Disability Benefits

Many readers will know of the significant workers’ compensation reforms being proposed in Kentucky. I would characterize the suggested modifications, when viewed in the aggregate, as significantly retractive. What most quickly caught my eye, as someone who is not a Kentucky lawyer, were the following provisions (this is just a sampling—though an important one—of the proposals):

  • All indemnity benefits would normally terminate when an injured worker reaches the age of 67
  • Employees would have the burden of proving that intoxicants did not cause their accidents
  • Permanent Partial Disability benefits would be capped at 15 years, but injured workers would be allowed to file for an additional 104 weeks of benefits with the Kentucky workers’ compensation agency, within 75 days before termination of the 15-year period. As I read the bill, the injured worker would also have to convince an administrative law judge that medical treatment remains necessary at the end of the permanent partial disability period, whether that be 15 or 17 years. In other words, medical benefits could be cut off.

With respect to the third bullet point (I think the first two speak for themselves), one does not have to be especially adept to imagine a 25-year old who is very seriously injured on the job. Again, stupendous sophistication is not required to understand that the same 25-year old, although very seriously hurt, may not be totally disabled in the sense of being physically incapable of doing anything. I repeat that I am not a Kentucky lawyer. But I can see clearly enough that “permanent total disability” means, under Kentucky law, “the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury.” Kentucky Revised Statutes §342.0011(11)(c) (emphasis mine). That sounds pretty demanding to this Maine lawyer. (As an aside, some quick research suggests to me that the odd lot doctrine has been cited only once ever in the reported Kentucky cases). This all seems to lead to the conclusion that the 25-year old worker may be in serious trouble at age 42. Not to worry, one might suppose – the cost of the injury after age 42 will simply be shifted to the Social Security Administration. (An approach that placed the Kentucky Supreme Court and the Kentucky legislature at loggerheads in the not distant past).

Tyler White, the president of the Kentucky Coal Association, asserts, in defense of the proposed law:

“The workers’ compensation system is designed to compensate injured workers in [an] attempt to get them back to work, benefiting themselves and their employer, . . . The system is not designed to sustain claims that extend well beyond the career span of an injured worker.”

Leaving to one side the questionable absoluteness of the effective claim that the career span of a worker is a mere 17 years, I am inclined to protest (with due respect) that Mr. White fails to make mention of the actual legal and constitutional basis of the workers’ compensation quid pro quo. As readers of this blog well know, workers in the U.S. originally obtained workers’ compensation rights, about a century ago, in exchange for foregone tort rights. The system was “designed” in such a way that the exchange of rights was to be reasonable. Kentucky courts took full cognizance of the arrangement a long time ago. Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262 (1918). This bill does not from my vantage point look reasonable. One can only hope that the Kentucky Supreme Court will subject the bill – should it unadvisedly become law – to the scrutiny it deserves. My late grandfather, a Harlan County Kentucky coal miner, who suffered with and died from black lung in Kentucky, would expect no less.  

Michael C. Duff

March 22, 2018 | Permalink | Comments (0)

Tuesday, March 20, 2018

New Tennessee "Gig" Law: “Handyman Special” or New Flavor of Opt-Out

Tennessee has just passed a law (HB 1978/SB 1967) that will undoubtedly make it significantly easier for companies to classify their workers as independent contractors rather than employees, thereby lowering their operating costs and creating a class of individuals with fewer legal protections when suffering on-the-job injuries. Although styled a law applicable only to retired handymen, and similar part-time workers, the text is much broader than this innocuous characterization suggests.  When many employees may be excised from a workers’ compensation statute, it is hard for me not to see the innovation as a species of “opt-out”–a law that, as a practical matter, allows de facto employers to avoid, or opt out of, background law of general applicability.

Under this so-called “gig” law, a “marketplace contractor” working for a “third party” at the direction of a “marketplace platform” is an independent contractor as a matter of law if (1) the platform and contractor agree that the contractor is an independent contractor; (2) the platform does not unilaterally prescribe specific hours of work (if the platform posts the contractor’s hours of work—at an unspecified location—that is not prescribing hours of work); (3) the platform does not prohibit the contractor from using other platforms; (4) the platform does not restrict the contractor from engaging in any other occupation or business; (5) the platform does not require contractors to use specific supplies or equipment; and (6) the platform does not supply on site supervision to the contractor.

(1) For purposes of this bill "Marketplace contractor" means any individual, corporation, partnership, sole proprietorship, or other business entity that:

(A) Enters into an agreement with a marketplace platform to use the platform's online-enabled application, software, website, or system to be given an assignment, or otherwise receive connections, to third-party individuals or entities seeking its services in this state; and

(B) In return for compensation from the third-party or marketplace platform, offers or provides services to third-party individuals or entities upon being given an assignment or connection through the marketplace platform's online-enabled application, software, website, or system; and

(2) "Marketplace platform "means a corporation, partnership, sole proprietorship, or other business entity operating in this state that offers an online-enabled application, software, website, or system that enables the provision of services by marketplace contractors to third-party individuals or entities seeking the services.

Now, imagine a situation in which a contractor is subject to discipline if he or she does not comply with a work schedule “voluntarily” posted (somewhere); imagine a contractor who does not in fact use other “platforms”; imagine a contractor who does not in fact engage in any other occupation or business; imagine a contractor who in fact uses platform-provided supplies or equipment; and imagine a platform that in fact supplies offsite supervision to the contractor. Is the contractor described in this paragraph an “employee” for purposes of traditional workers’ compensation law if he or she suffers on-the-job injury (as will inevitably happen)? He or she very well might be—especially if the (handyman?) company is providing “off-site” supervision (a.k.a, control)—if one was utilizing a traditional control test, or an economic realities test, or the relative nature of the work test. But it seems almost certain that the individual would not be deemed an employee under the new Tennessee test, which would be applicable to workers’ compensation cases (and as I read the text of the law is not limited to “handymen” despite the protests of legislators to the contrary), and which media accounts suggest may be in the process of being implemented in other states. Hence, we encounter the latest in a series of race-to-the-bottom gambits meant to facilitate employers’ opting-out of the workers’ compensation regime.

I think of “opt-out” as any mechanism allowing the employer the choice of whether to be bound by workers’ compensation legislation. Opt-out can be statutorily or contractually based. Statutory opt-out, as I conceive it, occurs when a state passes a law authorizing, and even facilitating, employers not to participate in workers’ compensation. It is jurisdictional in nature. Once an employer is “approved” for release the employer is de facto no longer under the jurisdiction of the state workers’ compensation agency. Oklahoma was the prime example of this model. It is somewhat puzzling to onlookers why a state would both maintain a workers’ compensation system and provide employers with the legal means of escaping it. My suspicion is that it is simply not feasible, even in the 21st century, for a legislature to announce that it is abandoning a workplace injury system that has been continuously on the books in the Western World since 1884.     

Contractual opt-out is easier for a legislature to defend. The argument here is that the government is simply honoring the mutual desire of parties not to be bound by background law. It is an argument based on waiver, not jurisdiction, and is nothing more than warmed-over Lochner. Appeal to freedom of contract is why the Tennessee law solemnly recites that the “contractor” and “platform” agree that the contractor is an independent contractor. Such “agreements” have been looked upon with suspicion since the late 19th century. (I’ll discuss that fact in a later post).

One might see stautory independent contractor directives as a hybrid of the stautory and contractual opt-out model: it is created by statute but derives energy from a fictional contractual relationship.

Paring the Tennessee law down to its essence leads to the realization that any business providing virtually any service by way of “online-enabled application, software, website, or system that enables the provision of services” is exempted from workers’ compensation regulation. This is no longer a “gig” law. The breadth of the bill betrays either its expansive intentions or its frightening mis drafting. In either event, we have come a long way from Silicon Valley coders and putatively unclassifiable tech workers. I can classify a handyman

According to some media accounts (paywall), the law was drafted at the request of Handy, Inc. This makes me wonder whether it may at some point be challenged by some unfortunate injured workers under the Article XI, Section 8 of the Tennessee constitution:

The Legislature shall have no power to suspend any general law for the benefit of any particular  individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie  [immunities], or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law. No corporation shall be created or its powers increased or diminished by special laws but the General Assembly shall provide by general laws for the organization of all corporations, hereafter created, which laws may, at any time, be altered or repealed, and no such alteration or repeal shall interfere with or divest rights which have become vested.

I sense the potential for a substantial Special Laws argument of the type that toppled a different flavor of opt-out in Oklahoma.

Michael C. Duff

March 20, 2018 | Permalink | Comments (0)

Monday, March 19, 2018

Driverless Cars and Workers’ Compensation: Into the Wild Blue Yonder

Very early in the morning today, Monday, March 19, a vehicle operated by an Uber driver struck and killed 49-year-old Elaine Herzberg, who may have been walking, or riding, a bicycle across a major road. The colliding vehicle was, according to Tempe, Arizona police, in “autonomous” mode at the time of the crash, but a vehicle operator was nevertheless behind the wheel. Uber apparently began experimentation with autonomous, driverless cars in Arizona following a ban in California (pending further study). The Governor was reportedly elated at their arrival.

Workers’ compensation issues in connection with the tragedy quickly surface. Was the Uber driver an employee of Uber or an independent contractor?  While that’s also a torts question, it is certainly possible to imagine a non-driving, working “driver” being injured in such circumstances. Perhaps the bicyclist/pedestrian was on her way to work (it was 5 a.m.).  What is the significance of the car having been in autonomous mode?

I read about this sad incident just after reading a story at WorkCompCentral (paywall) about an increase in traffic fatalities over the last decade. According to the story,

Motor vehicle fatalities in the U.S. surged to 40,327 in 2016, then dropped about 1% last year to 40,100, the National Safety Council reported. The 2016 total was 7% higher than in 2015, which in turn was 7% higher than 2014.

About 4.57 million people were injured seriously enough to require medical attention in motor vehicle crashes in 2017, according to NSC. That figure that was down about 1% from 2016.

At the same time, transportation incidents were the leading cause of work-related deaths in 2016, accounting for 40% of fatalities, the U.S. Bureau of Labor Statistics reported.

The Brookings Institute has opined that “automation will dramatically increase safety on the highways by reducing both the number and severity of accidents.” On the other hand, some worry that, for those who are injured, manufacturer-mandated compulsory arbitration (agree, or buy your car elsewhere) may result in dramatic under-compensation of victims. Brookings argues that, with respect to products liability, significant modification of substantive tort law would be unwise. One wonders whether states like Arizona will agree.  

As injury lawyers realize, compensation of traffic accidents involves a complicated bundle of remedies. It is very hard to predict whether driverless cars will be safer than human-piloted automobiles, especially when they achieve very high volumes on the highways. I think driverless cars very likely will be safer. One thing is certain: the mixes of liability are going to change dramatically. If car crashes are handled to any substantial degree in arbitration, recovery for injury is likely to be quite limited (which is why safety advocates are concerned). It stands to reason that when third-party recoveries are limited, the stakes will rise in workers’ compensation litigation.

None of us can be sure where all this is going. It reminds me very much of the history of the emergence of railroads in the 19th century. Somewhat surprisingly, for much of the latter part of that century, railroads were in bankruptcy. Train engines burnt down towns. Workers were grievously injured. Railroad labor and management disputes led to the Great Upheaval of 1877. Courts thereafter became much more involved in labor disputes. In other words, railroads changed everything. None of the episode was foreseeable. Much of it is difficult to comprehend even in hindsight.

My 12-year-old son—who is, as he will eagerly tell you, deeply knowledgeable of futuristic trajectory—would probably insist that it is the flying cars that will matter (he assures me they are just around the corner, so to speak), and he may be right. But every workers’ compensation specialist will feel compelled to acknowledge that “something” big seems to be coming—a something that may have a tremendous impact on the workplace. I will repeat the statistic: transportation incidents were the leading cause of work-related deaths in 2016, accounting for 40% of fatalities.

Michael C. Duff

March 19, 2018 | Permalink | Comments (0)

Friday, March 16, 2018

Before American Workers’ Compensation Law: We Were Not the First

According to a document published by the Department of Labor, Bureau of Labor Statistics, in 1917 (there were a couple of earlier versions), the following countries and/or their provinces enacted workers’ compensation prior to any U.S. states having done so (Wisconsin enacted the first such U.S. state law in 1911):


Germany:1884                                                Austria: 1887                                                 

Norway: 1894                                                 Finland: 1895                                                 

Great Britain: 1897                                         Denmark: 1898                                              

Italy: 1898                                                       France: 1898                                                  

Spain: 1900                                                     New Zealand: 1900                                       

South Australia: 1900                                     Netherlands: 1901  

Greece: 1901                                                   Sweden: 1901                                                            

Luxemburg: 1902                                           Western Australia: 1902                                

British Columbia: 1902                                  Russia: 1903   

Belgium: 1903                                                Queensland: 1905                    

Cape of Good Hope: 1905                              Mexico-Nuevo Leon: 1906  

Venezuela: 1906                                             Hungary: 1907

Transvaal: 1907                                              Newfoundland: 1908

Alberta: 1908                                                  Bulgaria: 1908

Quebec: 1909                                                  Manitoba: 1910

Nova Scotia: 1910                                          Liechtenstein: 1910

Serbia: 1910                                                    New South Wales: 1910


At some point in the not distant future I intend to create a chart comparing the major vital features (exclusivity, forms of benefits, etc.) of these laws.

Michael C. Duff

March 16, 2018 | Permalink | Comments (0)

Wednesday, March 14, 2018

White May Not be the Case to Cite for the Workers’ Compensation Quid Pro Quo; but it was All About the New York Act

I (and many others) have argued that, in the Supreme Court’s decision, New York Central Railroad Company v. White, 243 U.S. 188 (1917, the Court implicitly held that a state’s workers’ compensation benefits regime must be “reasonable” to avoid triggering heightened constitutional scrutiny. More narrowly, the Court said that what was not at issue in the case was the sweeping away of common law tort remedies in exchange for unreasonable workers’ compensation benefits. Logically, of course, that meant (and appears still to mean) that inadequate benefits might not pass constitutional muster. But it also seems to mean that the workers’ compensation system the court had before it in White—the version of the New York statute reenacted in 1914—was reasonable and adequate. Before looking at what the New York Act provided, however, it is worth mentioning that participation in that iteration of the Act was entirely voluntary both for “nonhazardous” employers and for many employees. Thus, it is difficult to say whether the limited scope of the scheme then at issue influenced the Court’s view of it. The same can be said of the Court’s companion opinion in Mountain Timber Co. v. State of Washington, 243 U.S. 219 (1917). Thus, I think the case to cite for the “signing off” on the quid pro quo may be Ward & Gow v. Krinsky, 259 U.S. 503 (1922), decided under a later version of the New York Act. Krinsky is the first Supreme Court case of which I am aware approving a broad compulsory workers’ compensation scheme (binding all employers employing more than four employees). And Krinsky cited White with approval. So, implicitly, the question is why the White court deemed the 1914 Act adequate or reasonable with respect to the employee benefit side of the equation. (Virtually all forms of compulsory workers’ compensation were upheld against employers against 14th Amendment challenges under the theory that the laws were within a state’s “police powers.”)

So, you say, what did the New York Act provide? I’m glad you asked:

Here is a brief summary: 

Total permanent disability: 66 2/3% of average weekly wages during the continuance of total disability. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof generally constituted permanent total disability. In all other cases permanent total disability was determined in accordance with the facts.

Temporary total disability: 66 2/3 % of the average weekly disability wages during the continuance thereof, but not in excess of $3500. (about $88,000 in 2018 dollars).

Permanent partial disability: 66 2/3% of the average weekly wages paid to the employee for a period of time named in the schedule as follows (most but not all scheduled injuries reflected here). For loss of a:

Thumb. 60 weeks; First finger. 46 weeks; Second finger. 30 weeks; Third finger. 25 weeks; Fourth finger. 15 weeks; Phalange of thumb or finger. One-half of the amount above specified for those digits. Great toe. 38 weeks; Other toes. 16 weeks; Hand. 244 weeks; Arm. 312 weeks; Foot. 205 weeks; Leg. 288 weeks; Eye. 128 weeks.

Loss of use. Permanent loss of the use of a hand, arm, foot, leg, eye, thumb, finger, toe, or phalange was considered as the equivalent of the loss of such hand, arm, foot, leg, eye, thumb, finger, toe, or phalange.

Amputations. Amputation between the elbow and the wrist was considered as the equivalent of the loss of a hand. Amputation between the knee and the ankle was considered as the equivalent of the loss of a foot. Amputation at or above the elbow was considered as the loss of an arm. Amputation at or above the knee was considered as the loss of the leg.

In case of an injury resulting in serious facial or head disfigurement the commission could, in its discretion, make an award not exceeding $3500. ($88,000 in in 2018 dollars).

Benefits for non-scheduled injuries were calculated by multiplying 66 2/3% times the difference between average weekly wages and wage-earning capacity thereafter in the same employment or otherwise payable during the continuance of the disability, but subject to reconsideration without explicit textual limitation.  

Temporary partial disability: Calculated in the same manner as for permanent non-scheduled injuries with the caveats that any combination of earnings from work and disability payments could not exceed the average weekly wage at the time of injury and maximum partial benefits were limited to $3500.

In most cases, the maximum weekly benefit obtainable under any species of disability was $15. ($377.26 in 2018 dollars). 

Death Benefits. An abbreviated account of death benefits is that the surviving widow received 30% of the average wages of the deceased until remarriage.  Each surviving child received 10% of the average wages until attaining the age of 18.

Medical Benefits. The employer was required “to promptly provide for an injured employee such medical, surgical, or other attendance or treatment, nurse, and hospital service, medicines, crutches, and apparatus as may be required or be requested by the employee, during 60 days after the injury.

One of the more notable aspects of this scheme was that, outside the contours of specific scheduled benefits, there was no time limitation for receipt of permanent partial benefits. With respect to scheduled benefits, however, the amount provided was the sole remedy. The 60-day window for provision of medical benefits is striking to our eyes. It seems clear enough, however, that the employee was unlikely to get a better deal elsewhere.  A tort suit, even if theoretically available, would take much too long.

Thus, the quid pro quo question (to the extent it is historically couched in terms of White and its progeny) boils down to an assessment of the degree to which any proposed modification of workers’ compensation benefits is worse than the New York scheme (The Supreme Court has never commented on the question of adequacy since White).  

Michael C. Duff

March 14, 2018 | Permalink | Comments (0)

Tuesday, March 13, 2018

Historical Investigations: The English Workmen’s Compensation Act of 1897

I have had the great pleasure of exploring this morning Bradbury’s Workmen’s Compensation Treatise of 1917 (a rare book – the Larson’s-type treatise during the period of workers’ compensation’s revolutionary expansion). The purpose of my investigations is to get a better understanding of what the U.S. Supreme Court of 1917 might have had in mind when concluding that the negligence-for-workers’ compensation quid pro quo was acceptable, if reasonable. I intend to assess all the major statutes in existence up to that time to create a kind of historical res gestae touching on “reasonableness.”

This morning I also detoured from Bradbury a bit to read a Seldon Society compilation of English law, included in which is the English Workmen’s Compensation Act of 1897. As a former law clerk at the Massachusetts Department of Industrial Accidents, it did not take me long to note striking similarities between the original English Act and Massachusetts law. Extended discussion on that point is for another day. But I thought I would take a moment to comment on a few items that caught my eye.

First, under Section 2(1) of Chapter 37 of the English act, notice of “accident” was to be provided “as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured . . .” In the same provision, it is stated that claim was required to be filed within six months but  “any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not prejudiced in his defence by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake or other reasonable cause.” This strikes me as a surprisingly forgiving notice and claim provision.

Also, under the 1897 Act, which applied solely to enumerated hazardous employments, indemnity benefits equaled 50% of weekly wage loss—this was clearly a wage-loss statute—capped at 1 pound per week (after all conversions amounting to $167.80 in 2017 dollars). First Schedule, Section 1(b). Death benefits were the greater of the preceding’ three years wages or 150 pounds ($25,000 in 2017 dollars). Under Section 2 of the same schedule, there did not appear to be any limit on the length of time a wage-loss benefit could be received, though under Sections 11 and 12 it appears that continued incapacity for work could be tested by the employer at any time (and of course, the cap was also continuous). Under Section 11, the employee had the right to get second opinions from physicians appointed by the Secretary of State and paid by Parliament. Second Schedule, Section 13. Moreover, “the certificate of that medical practitioner as to the condition of the workman at the time of the examination shall be given to the employer and workman, and shall be conclusive evidence of that condition.” First Schedule, Section 11. Employers and employees could settle cases by lump sum settlement and public officials could order employees to deposit the lump sum proceeds in a (one presumes conservative) Post Office Savings Bank. Weekly benefits were not subject to the claims of creditors. First Schedule, Sections 13 and 14. It appears that the nitty-gritty details of workers’ compensation cases were decided by court-appointed “arbitrators” under an interesting arbitration system that I intend to discuss in a later post.  Second Schedule.

My preliminary impressions are that indemnity benefits have been set historically at between 50% and 60% of wage loss, and that trial-by-jury was not a feature of the English system. Importantly, however, my investigations have not yet persuaded me that any durational limit on receipt of partial benefits was a feature of early workers’ compensation systems.  Finally, IME structures have been with us for a long time. More to come.   

Michael C. Duff

March 13, 2018 | Permalink | Comments (2)

Saturday, March 10, 2018

The Interplay Between Vicarious Liability and Workers’ Compensation in Independent Contractor Debates

What do employers fear more, being bound by the costs of paying workers’ compensation premiums, or being potentially liable for the tortious acts of their employees committed against third parties while within the scope of employment? I found myself musing over this question while reading a very entertaining volume on the origins of the first British workers’ compensation Act. David G. Hanes, The First British Workmen’s Compensation Act, 1897 (Yale University Press 1968). This little volume of a hundred pages or so is a treasure trove of fascinating analyses and accounts of the legal doctrine of personal injury leading to enactment of the first workers’ compensation statute in Britain. As an aside, I should mention that approximately twenty international workers’ compensation statutes pre-dated the c. 1910-11 statutes emerging in the United States.   

As many readers will know, employers are, with certain important limitations, liable for the negligent acts of their employees committed against third parties while in the scope of employment under a principle of vicarious liability known as respondeat superior. Thus, if a delivery driver negligently (or in some cases even intentionally) injures me, I, at least in the abstract, have a legal cause of action against both the driver and the “dispatcher” of that driver, if the two of them are indeed in an employer-employee relationship. Recent news demonstrates that such a fact pattern is not beyond the realm of the imagination.

It is interesting to note that the whole idea of vicarious liability was hotly contested by common law judges throughout the 19th century. Indeed, the earliest English precedents fail to cite authority for the proposition that vicarious liability exists; and no less a luminary than Oliver Wendell Holmes thought the construct a fiction derived from Roman law: if my servant (a chattel) harmed you, you had the right to kill or maim my servant. To avoid this result, I could pay you compensation. Over time, some links in the chain were lost, and it became the rule that I could simply approach you for compensation, even though you were in no sense at fault. Hanes, supra., at 9. Fascinating.

The rather large microeconomic question at play is whether modern companies resisting the Restatement Second of Agency analysis of employee versus independent contractor status do so primarily to avoid tort liability or rather to avoid labor/employment/Tax/ERISA statutory liability (including workers’ compensation obligations). I know that in the real world the answer is probably “both,” but it is simply not the case that modification of the employee definition in one statutory regime will resolve questions, once and for all, in every legal regime. Thus, beware piecemeal proposals for reform. For example, I can virtually guarantee that enactment of a partial “portable benefits” regime—where certain protected industries may, in effect, designate their workers as quasi-employees—will complicate, rather than simplify, the issue of what happens when quasi-employees injure or kill third parties.  One hopes that quantitative analysis could make even a brief appearance in legislative deliberations.

Michael C. Duff

March 10, 2018 | Permalink | Comments (0)

Sunday, February 25, 2018

Bob Wilson and Tom Robinson Address Predicted Resurrection of Opt-out in New LexisNexis Annual

            The editor of the Larson treatise, Thomas A. Robinson, has once again published his essential compendium of articles which he has written and/or published throughout the past year. 

            The first two articles Robinson offers (now six months old, I believe) are addressed to the for-now defeated opt-out scheme.  The first is by Bob Wilson and the second by Robinson himself.  Of course, under opt-out, large employers can opt out of the workers’ compensation system, yet retain tort immunity. They do so by setting up their own purportedly ERISA-governed plans, which need not necessarily provide the same benefits as the state’s workers’ compensation law, with any disputes being handled via compulsory arbitration – the arbitrators being picked by the employer.

            Of course, in the renowned case Vasquez v. Dillard’s, the Oklahoma Supreme Court struck down the law as unconstitutional, since it gave special treatment to the large employers who sought its sanctuary.  See David B. Torrey, The Opt-out of Workers’ Compensation Legislation: A Critical Briefing and the Vasquez v. Dillard’s Case, 52 Tort Trial and Insurance Practice Law Journal 39 (2017),

            On this topic, the popular Sarasota blogger, Bob Wilson, reports that “opt-out is going to return.”  He was writing in response to the announcement by opt-out guru, Bill Minick, at the WCI Orlando Conference (August 2017), that he was going to be promoting a new manifestation of opt-out.  Wilson reports that, in light of Vasquez, “the backers of opt-out seemed to have learned a lesson…, and are now proposing an opt-out scheme that operates without the layer of protection afforded by the exclusive remedy provisions.” 

            Opt-out is to be resurrected, Wilson admonishes, and “we should pay attention.”

            Wilson believes, like others, that workers’ compensation is over-regulated - and poorly so to boot.  He says that opt-out will return in legislative proposals because of these facts and because the “system … cannot seem to respond to other external stimuli.”  “Employers,” he submits, “will eventually look to escape an overly complex system where regulators cannot even agree on a simple standardized reporting form….  Opt out will again soon be an issue we are debating, but with a change in focus on their side, it will be a concept worthy of a larger debate.”

            Mr. Robinson, for his part, opines that giving up the exclusive remedy defense won’t be enough to save opt-out schemes, at least as recently envisioned. He points out that what sank Oklahoma opt-out was not freedom from tort liability, but the constitutional defect of the law treating certain constituencies in a special, more advantageous manner.  In the end, however, Robinson (who is not, like Wilson, sympathetic to opt-out), worries that opt-out may return: “In the race to the bottom that seems so much the rage in today’s state houses, I feel that several states are at least willing to entertain the notion of a 19th century wrestling match as to how injured workers might be covered (or excluded) for work-related injuries and diseases.”

            Wilson, in his otherwise insightful essay, makes a remarkable statement by asserting that the system “cannot seem to respond” to external stimuli except for threats of its very overthrow.  Such a claim flies in the face of twenty-five years of business-friendly, retractive reform of workers' compensation laws.  Didn't the U.S. Department of Labor start to mobilize in the last days of the Obama Administration with an eye to addressing injured worker complaints about retraction?  (As a player, I do agree with Mr. Wilson that the system is imperfect; I blanch daily at episodes of inefficiency and utter waste.)  As an example of system responsiveness, when physician-office dispensing of narcotic medication surfaced as a problem in Pennsylvania, interest groups in short order won a change to the law (December 2014), which brought the unsatisfactory situation under control.     

            Neither Wilson nor Robinson, meanwhile, mention the real force behind opt-out: the desire for profits fueled by unrestrained market forces.  Wilson and Robinson do not comment at all on this phenomenon.  The cause and effect is obvious.   

            First, since 1980, retraction, for the most part, has been the major feature of legislation in state workers’ compensation laws. Opt-out, a complete rejection of the social compact, is the most dramatic manifestation of this trend. 

            Second, opt-out efforts is another manifestation of tort reform, as has been current in products liability.  All agree, in this regard, that the main drivers of opt-out proposals are, as in other insurance fields, reducing costs to business and eliminating litigation.

            Third, retrenchment in workers’ compensation, of which opt-out is a prime example, is another example of a larger, pervasive, attempt by employers to escape the public system and avoid traditionally acknowledged social responsibilities. Arbitration clauses increasingly found in employment contracts are another example. Opt-out lacks the communitarian spirit that imbued the National Commission report, with its admonitions that all be bound by the law. Opt-out casts this idea aside in favor of pure self-interest.

            Fourth, opt-out proposals reflect an ultimate negation of rights. Opt-out, in fact, considers work injury recovery as not a right, but as just another employee benefit which can be pared off at will - one where costs can be reduced via the employer’s complete control over medical care, restricted compensation triggers, and freedom from challenges in disputed cases. The idea that a worker’s injury recovery possesses an element of justice, one that derives from the Constitution, the common law, and social concerns, is forgotten.

            In any event, Professor Michael Duff seems to have a most insightful legal perspective.  Writing (like Wilson and Robinson) in August 2017, after Mr. Minick’s proposals were floated, he wrote, on this blog:

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….  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.

[S]till, 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.

See Michael C. Duff, Workers' Compensation Opt-Out, Opt-In, Exclusivity, and State Constitutionality, (blog post, Aug. 14, 2017).

February 25, 2018 | Permalink | Comments (0)

Wednesday, February 21, 2018

Is This a Rubber-Stamp World?: Did Aetna’s Former Medical Director Never Look at Patient Records?

According to CNN, Aetna’s former medical director, Ken Iinuma, admitted in a deposition that “he never looked at patients' records when deciding whether to approve or deny care” surprises me for reasons that I suspect are different from the reasons the public seems shocked (California has reportedly opened an investigation). The public may shake its collective head in disbelief that life and death decisions regarding insurance coverage (or the lack thereof) could be made in a paper-review. Those of us who have been involved in medicolegal practice of one kind or another realize this is probably the rule rather than the exception. Because of the sheer volume of insurance-coverage determinations made within large organizations, it is not surprising that individual medical records are not made by top decision makers. Aetna will no doubt argue to California that its internal administrative process ferrets out bad decisions (or at least highlights questionable front-line decisions) long before the file makes its way to a top decision maker. This is, after all, the way that legal organizations like workers’ compensation commissions reach decisions. Deep scrutiny of all files would be expensive and time consuming. True, one might hope that a doctor (with due respect to you nurses) would take the time to at least peek at underlying records when denial of treatment will likely lead to death.

But that is not what surprises me. I am surprised by the nakedness of the admission of the doctor (perhaps unsurprisingly no longer an employee of Aetna), though I would have to read the entire deposition transcript to learn if things were really as stark as they seem. Sometimes the most damning admissions emerge because an inside player has lost the ability to discern when things look bad to the outside world. This method of paper denial had apparently become so routine to the doctor that he, perhaps momentarily in a moment of fatigue, failed to appreciate the perception of decisions under such processes as mere rubber stamps.

At another level, the public might be shocked because it believes a doctor is a doctor first and an employee of an organization only secondarily. Surely, the doctor would not sacrifice his professional ethics at the altar of crass employment.

I think that the potential for relinquishment of professional judgment undergirds much of what workers’ compensation has become. Were the late 19th-century architects of workers’ compensation naïve in believing that the ADR-system they apparently thought workers’ compensation would become could operate without lawyers? My profession takes a lot of heat for its perceived unfettered embrace of adversarialism. But as all of you in “the business” know, acquisition of medical evidence can be a de facto arms race. There is plenty of blame to go around for the present state of affairs. Perhaps the public will now have to wake up to a reality that many of us have long known.

Michael C. Duff         

February 21, 2018 | Permalink | Comments (0)

Saturday, February 17, 2018

Why Lawson v. Grubhub, Inc. Did Not Change the Independent Contractor World (and No One Case Could)

In a recent case, Grubhub v. Lawson, Case No.15-cv-05128-JSC, 2/08/2018 (N. D. Cal.), a GrubHub delivery driver was found to be an independent contractor of GrubHub, and not its employee. Predictably, almost immediately after the decision issued, several news stories emerged suggesting that the outcome could broadly impact the “Gig” economy. see, e.g., here, here, here, and here.  Anyone thinking such a thing (whatever the facts of the current GrubHub case) has little grasp of the law of agency. An individual is covered as an employee under an employment statute – including workers’ compensation statutes – if he or she fits the statutory employee definition. The analysis will always be fact-dependent and complicated.

Although the historical story is (or should be) well-known, it bears repeating. (I cover it all in my workers' compensation textbook). In the mid-twentieth century, many statutes defined “employee” very broadly because their aim was to presumptively cover workers to achieve broad social objectives. These broad definitions, which sometimes subsumed entirely the independent contractor legal category, differed from those that had been decided upon – especially in torts cases – in roughly the late 19th century. The 19th century cases were meant to protect employer/principals from liability occasioned by the tortious conduct of their employee/agents. They tended to presumptively not cover individuals as employees. In reaction to judicial expansion of the employee-definition under labor and employment laws, legislatures began to insist upon a return to the earlier, common law distinction between “employees” and independent contractors. That earlier distinction is captured in a generally-accepted, common law, multifactor formulation set forth under the Restatement Second of Agency, Section 220(2). Before I set out the factors, I’d like to say a few words about the slightly-different-than-early common law policy embedded in them.

It is fair to say that the history of employment legislation is simultaneously a history of displeasure with the legislation. A quick search in the Hein Online database of law review articles yielded a law review article from 1941 expressing dissatisfaction with the then-extant California independent contractor standard in workers’ compensation cases. Comment, Agency, Independent Contractors in California, 30 Cal. L. Rev. 57. (The article taught me, among other things, that the California presumption that those engaging in work for another are “employees” was the law of the state as early as 1926. Hillen v. Industrial Acc. Comm., 199 Cal. 577).  

The point is that the law has always had to deal with two fundamental tensions in employment law. First, a profit-maximizing employer has both the economic incentive and the legal expertise to characterize almost any employee as an independent contractor. A second tension is that such stratagems frequently cannot be immediately dissected. Many workplaces are simply too complex to determine, without analysis, who is legitimately an independent contractor, and who is not. The Section 220 analysis (below), which tends to be the default analysis when statutes have not clearly defined employment status, strikes a balance in distinguishing between “employees” and independent contractors. The analysis first weighs which party—the employer or the worker—has control over the details of the work in a workplace. If a contractor is truly a contractor, he or she should probably have complete control of the details of work. But for decades it has been understood that control of details of the work often does not resolve the question.  Without trying to catalogue the other factors narratively, I will set them out below and invite the reader to reflect on how each of them causes a factfinder to pause and ask the question, “Is this individual really an independent contractor?”:

Continue reading

February 17, 2018 | Permalink | Comments (0)

Wednesday, February 14, 2018

The Occupation of Long-Distance Mover: A New Occupational Memoir Educates and Enlightens

            Movers are not infrequent visitors to workers’ compensation hearing rooms. The unusual patterns of their often-rigorous work seem to give rise to many opportunities for work injuries. Surely many moves become standard, but I have always been impressed that moving such things as pianos and wardrobes up and down residential staircases, and building the tiers of furniture within the truck, must constitute one of the most challenging types of physical work. Strength, coordination, and skill are all involved.

           In a recent case that I entertained, a local mover, named Aaron, had sustained two recognized injuries and had ultimately been laid off from his light duty. He was seeking reinstatement of disability benefits but, during the proceedings, thought better of his occupation, retrained as an x-ray technician, and compromise-settled. He was, after all, pushing the ripe old age of 40.  

             In a thoughtful new memoir, The Long Haul: A Trucker’s Tales of Life on the Road (W.W. Norton & Co. 2017), the author, Finn Murphy, tells stories of his life as a mover. He started as a college student undertaking local moves, but for many years has worked as a contractor for a Connecticut-based North American Van Lines firm undertaking high-end, cross-country moves. Now in his late fifties, he leases the truck from North American and receives jobs from the firm, but each effort is his to captain. In this regard, the loading and unloading, retaining of helpers at start and end, and assuring customer satisfaction, are all his responsibilities. He must, in addition, handle the operation so that he can achieve a profit out of his commission when the job is completed.

            One learns much about the moving business, and the occupation of mover, in this entertaining new book, but injuries do not turn out to be a dominant theme. On the other hand, the whole narrative takes for granted that moving is extremely physical work and full of hazards. Indeed, on the author’s first day, he lacerates his arms while carrying heavy items down the customer’s stairs. A few hours later, he is goaded into too many beers at lunch and ends up falling through the customer’s attic rafters, through the drywall of the ceiling, and into the master-suite bed. Somehow, he isn’t fired.

            And, of course, the driving itself can be hazardous. In one harrowing account, Murphy tells of coming upon a truck accident on I-80, near Clarion, PA, where his counterpart has apparently been killed after hitting deer. The nature of the work, meanwhile, can be mentally stressful, with demanding, often difficult customers (“shippers,” in his parlance), suicidal motorcyclists, traffic in general, deadlines, and the challenge of finding good unloading help at destination. At one point, after a day’s work well done, he ponders, “Are these briefs moments of euphoria worth the pounding loneliness, the physical abuse, and the lack of direction my job entails?”

              Injuries are not the theme, but Murphy’s philosophical views, based on his many years on the road, are certainly hard to miss. In fact, it may be that this memoir is a sociological tract as well as an occupational history. He has, for example, many complaints to share, both big and small. As for the big, he complains of globalization and (among other things) its contribution to destroying downtowns throughout the country and promoting commercial sprawl. As to the small, he assails the trend of truck stops discontinuing their restaurants and replacing them with Subway outlets – he even seems bitter about the Subway shredded lettuce, which he says is tasteless and, in any event, always landing on the floor of his truck cab.

            Murphy has an independent streak, and in political terms he seems a fierce egalitarian. He certainly avoids references to party politics (wisely, none appears; he apparently wants everyone to stick with his book until the end), but he is openly contemptuous of the bigotry that many of his wealthy customers display toward his Latino and other leveraged helpers. In one disturbing scene, for example, one rich customer’s wife openly videotapes the move, presumably to document theft and better file any subsequent insurance claim. Meanwhile, he senses that many of the shippers he services have wealth which is the result of ill-gotten gains. He depicts one banker he moved as relocating to yet another suburban castle so that, in the new area, he can once again rip people off. (I don’t know how Murphy could really know this, and here the author certainly displays some class resentment.)          

            The author speaks at length about the rudeness of many shippers, who unwisely commence their relationship with their movers by showing utter hostility. Does it really make any sense, he asks, to entrust all your worldly belongings to people who are not only strangers to you, but who you have mistreated as well? Better, Murphy counsels, to provide coffee and donuts – and a nice tip.      

            Murphy also reveals that a hierarchy among over-the-road truck drivers exists. He asserts that most truckers look down on movers who, in the trade, are called “bedbuggers.” This is so even though many movers – particularly our author, moving the high-end jobs – make more than the unionized drivers of the major carriers, and certainly more than the increasingly-leveraged independent truckers. (Murphy says he can make $250,000.00 per year.) Ironically, over-the-road movers seem, in turn, to look down on their local-driver counterparts. In one scene, one such high-end driver brusquely turns down, at the end of the day, the opportunity to join the local drivers for a beer.

            Murphy’s egalitarianism is evident when he talks about a sensitive issue: the labor pool which takes care of unloading many of his interstate jobs. He asserts that the majority of such workers in the present day are Latinos, in part because many whites turn down such work. Yet, he complains, Latinos are unfairly vilified in our national political discourse. Murphy also confesses, however, that when hard-working labor from Mexican-Americans is not available, he has secured day labor from soup kitchens, parole offices, and even corner bars. In a break from Murphy’s robust egalitarianism, however, he will not be soliciting these types of gentlemen for his high-end jobs.

            The author also notes that many African-American men achieved entry into the middle-class, over the decades, by devoting themselves to long-haul trucking. Speaking of such individuals, he states, “The work is so hard and held in such low esteem that there’s not a lot of room left over for bigotry. Anyone who will do this job is accepted.” To Murphy, who takes pride in his work, and considers himself a professional, this striving and achievement is deserving of the greatest admiration.

February 14, 2018 | Permalink | Comments (0)

Monday, February 12, 2018

Workers' Compensation Cases on Appellate Review: “Substantial Evidence” and “Not Contrary to the Overwhelming Weight of the Evidence”

            In a new article, A Tale of Two Standards: Why Wyoming Courts Should Apply the Actual Substantial Evidence Standard When Reviewing Workers’ Compensation Cases, 18 Wyoming Law Review 1 (2018), Professor Mike Duff investigates an odd phenomenon of the Wyoming Supreme Court surrounding its proper standard of review.

            In this regard, the court uses, seemingly on an interchangeable basis, the phrases “substantial evidence” and “not contrary to the overwhelming weight of the evidence,” in characterizing its review function. Duff characterizes the Wyoming conceptualization of “substantial evidence” review as that which is familiar to us from federal administrative law, that is, that if, after whole record review, evidence is present that a reasonable mind might consider sufficient to support a fact, then the court will sustain the same.  But with workers’ compensation cases, the court will also say that it must uphold decisions by adjudicators as long as “deemed ‘not contrary to the overwhelming weight of the evidence.’” Duff asserts that in practice, the high court, having adopted this formulation, is extremely (and overly) deferential to the fact-finder. Indeed, he suggests that a review of certain cases suggests that the court is undertaking “any evidence” review – and is not undertaking substantial evidence review at all.

            Duff criticize this regime on a number of grounds. He first undertakes some good old-fashioned sleuthing and discovers that the court, some years ago, adopted this formulation from a chapter of the encyclopedia American Jurisprudence (AmJur). That text equated “substantial evidence” and “not contrary to the overwhelming weight,” but on the authority of two very weak cites. The book, notably, has since abandoned this approach. Meanwhile, the only state court which also applies the phrase (Missouri) actually uses it not as a mandate of extreme deference but, instead, one to accommodate increased scrutiny of fact-finding. Finally, the Wyoming legislature, with its 1979 amendment to its APA, has indicated that substantial evidence review is supposed to mirror the federal example. And, of course, the whole philosophy of that regime (now over a half-century old), is increased scrutiny of fact-finding to ensure that the agencies of the administrative state do not abuse their power.

            Cleaving to a more deferential standard – which isn’t meaningfully supported by precedent in the first place – makes no sense to the author. He recommends that the court overrule its precedent which adopted the overwhelming weight standard or, in the alternative, explain the precise difference to the bar and the public.

            In any event, Duff asserts that extreme deference is inappropriate in the workers’ compensation context, where the dispute being resolved by the administrative agency is over an essential right – that is, the right, however modified, to recover for one’s personal injury at the hands of another.

            Professor Duff’s article (along with a helpful abstract) can be read here:


February 12, 2018 | Permalink | Comments (0)

Saturday, February 10, 2018

Columbia University History Professor Writes about Sir William Beveridge and his U.K. Reforms

            Professor Susan Pedersen, a historian specializing in British history at Columbia University, has written an essay-style review of the new book, Bread for All: The Origins of the Welfare State (2017). We are talking about the British welfare state here, and Pedersen reports that the author, Chris Renwick, “tops and tails” his account “with the well-known figure of Sir William Beveridge.”

            This item immediately caught my interest, as one recalls that it was the famous report by Beveridge that prompted reforms in England immediately after World War II which terminated workers’ compensation as a stand-alone program.  That development constitutes an irony of sorts, since the nation whose laws largely inspired U.S statutes chose to eliminate workers' compensation as familiarly understood ... while the American states have continued chugging along with the same model for another 70 years.  (Aspects of  industrial injury compensation, notably, remain in the country.)      

           Pedersen, in her London Review of Books (lead article, 2.8.2018) essay, notes the "amalgamation of programs," but enriches our understanding. Here is a sample:

Social Insurance and Allied Services, the improbably named 300-page tome released by His Majesty’s Stationer’s Office on 1 December 1942, didn’t just propose amalgamating the patchwork of existing programmes – accident insurance, health insurance, unemployment insurance, widows’ and old-age pensions – into a single scheme, although it did do that. (In brief, Beveridge categorised the whole population in terms of individuals’ relationship to the labour market, identified the factors that might prevent them from working, and proposed a single contributory scheme that would provide adequate subsistence during any of those non-working life-stages or crises – except motherhood, about which I shall say more later.) But this new and universal scheme, as historians of social policy never tire of telling us, built on and did not break with the two key principles of its interwar precedents – first, that any systems of cash support should be contributory and not tax-funded, and, second, that labour market participation was the foundation for entitlement….”

The full review can be read here, I think for free:

February 10, 2018 | Permalink | Comments (0)

Professor Burton Criticizes Proposed New York “Proposed Guidelines for Determining Impairment”

            Professor John F. Burton has recently published a sharply critical paper addressing the proposed New York Workers' Compensation Board's Workers’ Compensation Guidelines for Determining Impairment. That proposed document was published on November 22, 2017, and is apparently being considered right now by the Board. It is notable that these proposed guidelines are intended to replace the currently existing guidelines (promulgated in 2012) which bear a markedly different title, to wit, the Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.

            Burton assails the new proposal, insisting that it departs, without reason, from the 2012 guidelines and misses the point that the calculation of permanent partial disability under the Act is intended as a measure of disability, and not just impairment. The proposal directs the evaluating physician, “For a non-schedule permanent disability [presumably like the back], evaluate the impact of the impairment(s) on claimant’s functional and exertional abilities.” Burton, however, complains, “But ‘functional and exertional abilities’ are surely not the only relevant factors that determine the ‘impact of a workplace injury on a claimant’s injury on a claimant’s ability to work.’”  

            Professor Burton, who has other complaints as well, recommends that the Board withdraw the proposed guidelines, and he makes other constructive suggestions for how the agency should proceed.    

            You can find the entire document here: Burton Analysis of November 2017 NY WC Impairment Guidelines.




February 10, 2018 | Permalink | Comments (0)

Thursday, February 8, 2018

Yet Another Essential Read: Professor John F. Burton's Major Essay, "National Developments in Workers' Compensation: Nullifying the Grand Bargain?"


            Professor John F. Burton, Jr., the Dean of American workers' compensation law, has recently published an essential essay on the field, "National Developments in Workers' Compensation: Nullifying the Grand Bargain?"  Professor Burton's essay appears in the new issue (Winter 2017) of Workers' First Watch, the periodical of the Workers' Injury Law & Advocacy Group.   

             The professor has asked us to post his exciting article on this website, and we are pleased to do so.  You can read the article here: Workers' First Watch -- National Developments in Workers' Compensation.

            I will be blogging on his article over the next few days, so stay tuned! 





February 8, 2018 | Permalink | Comments (0)

Friday, February 2, 2018

An Essential Read! Professor Emily Spieler's tour de force Rutgers University Law Review Article on Workers' Compensation

            Professor Emily Spieler (Northeastern University School of Law), the renowned expert on workers’ compensation law and insurance, has authored a sweeping new article addressing the program, in which she highlights its controversies and explains – and assails – the retractions of the last few decades.

            For the reader new to workers' compensation, Spieler’s article is a crash-course relative to the history, purposes, and controversies, past and present, which have surrounded the field. For the old hand, meanwhile, the author’s insights, whether one agrees with them or not, will awaken myriad new reflections relative to the program. 

            Her article is Emily A. Spieler, (Re)assessing the Grand Bargain: Compensation for Work Injuries in the United States, 1900-2017, 69 Rutgers University Law Review 891 (2017).

            The full article can be read here:    

            My summary and review, meanwhile, can be read here:














February 2, 2018 | Permalink | Comments (0)

Wednesday, January 31, 2018

Third of Four Workers' Compensation Symposia in Laramie in 2017-2018

Continuing with my series of workers' compensation symposia at the University of Wyoming College of Law in Laramie on Friday, February 9, 2018. In this session, Wyoming attorney Mike Newman and I will be discussing the forms of workers' compensation benefits corresponding to a worker's extent of incapacity. we'll explore the familiar and the not so familiar. For example, did you know that about 20 workers' compensation laws were enacted around the world between the time of the British Act in 1897 and the first American statute circa 1910/1911? Each of these statutes were wage-loss statutes. Partial incapacity benefits were calculated simply by taking (about) 2/3 of the difference between the pre-injury and post-injury average weekly wage. This simple model is a far cry from what we have now: a confusing array of benefits based on earning capacity OR wage loss OR disability.  We'll discuss . . .

Michael C. Duff


January 31, 2018 | Permalink | Comments (0)

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

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)