Monday, May 22, 2017

Seminal Pennsylvania Case on the Definition of "Injury" Approaches its 30th Anniversary, is Commemorated by Pitt Law Student

            My comp judge colleagues from the Virginia system always leave judges from other jurisdictions (like me) gasping when they tell us of the large percentage of workers who appear at hearings self-represented.  As it turns out, however, many of these pro se claimants have sustained repetitive motion injuries, which are not compensable under the Virginia Act.  It's the Virginia Deputy Commissioner's job to deliver the unhappy news that the worker has no rights.  (Mike Duff reviews this issue nicely in Chapter Four of his textbook; it is important to note, however, that carpal tunnel, given an amendment to the Virginia statute, is now compensable in certain instances.) 

            Under the Pennsylvania Act, we don't have this problem.  This is so given our liberal definition of "injury," the statute's designation of the compensable event.   

            In our state, we're reminded of this fact by the approaching 30th Anniversary of the seminal Pennsylvania case on this precise issue, Pawlosky v. W.C.A.B. (Latrobe Brewing Co.), 525 A.2d 1204 (Pa. 1987).

            My research assistant (and student), Justin Beck, a 2017 graduate of Pitt Law School, has written a top-notch documentary retrospective on this case.  I've posted this brilliant young man's essay on the website

            In summary, the Pawlosky case clarified that all injuries, including repetitive motion injuries, aggravations of pre-existing conditions, and disease maladies, are covered by our state’s law. 

            The full story: following liberalizing amendments in 1972, an employee in Pennsylvania was no longer obliged to prove an “accident,” but merely that an “injury” had occurred. In the context of occupational diseases, however, the injured worker was still obliged to show that the claimed pathology had a greater incidence in his or her occupation than in the general population.  In 1987, the Pennsylvania Supreme Court, in Pawlosky, addressed this issue.  The court expanded the compensable event, declaring that, as long as competent proofs showed that the ailment arose in the course of employment, and is medically related to the same, the worker possesses a valid claim.  Under the Pennsylvania system, the issue of legal causation has been settled.  What we are always litigating is medical causation.

             Mr. Beck, in his essay, recounts the story behind this pivotal litigation, which centers on the occupationally-aggravated asthma of a brewery worker.

            The importance of the Pawlosky decision has only been strengthened as the years have passed. Workers’ compensation practitioners and judges know, instinctively, that defenses resting on the theories that the injury was “not due to an accident”; was “due to a pre-existing condition”; or was not “peculiar to the worker’s occupation,” are not cognizable. Civil lawyers, meanwhile, are (or should be) aware that work injury claims asserted by workers against their employers in tort will almost invariably be dismissed on the basis of the exclusive remedy, with the trial court citing Pawlosky as authority.

            Notably, just as Mr. Beck completed his essay, our middle-level appeals court, on May 4, 2017, held that a worker, employed as a paper plant electrician for many decades, had a cognizable claim of injury for his fatal metastatic bladder cancer. Before the court did anything else, it invoked Pawlosky, confirming that all work-related harm, including an unlisted disease, can indeed constitute an injury. Kimberly-Clark Corp. v. W.C.A.B. (Bromley), 2017 Pa. Commw. LEXIS 175 (Pa. Commw. 2017). 

May 22, 2017 | Permalink | Comments (0)

10th Amendment as Race to the Top?: National Tort Reform, the Federal Arbitration Act, and Workers’ Compensation

Workers’ compensation is an area of traditional state sovereignty. I have become increasingly concerned about the onslaught of what I term “empty preemption,” the supersession of substantive state law by substantively empty federal statutes. Because of my ongoing concern about what I see as the undervaluation of a remedy for negligent infliction of injury on the human body, I find it especially alarming when empty preemption works against state remedies for physical injury. At the very root of workers’ compensation opt-out, for example, is the project to utilize substance-less federal law (ERISA) to preempt substantive state law. The substance of law to which I refer is sometimes called “rights.” And in my mind, rights matter.

Last week the Supreme Court continued its underwriting of a states’-rights-eviscerating machine known as the Federal Arbitration Act. The Kentucky-based case—Kindred Health Centers—involved a fairly simple fact pattern. Two close family members of nursing home admittees unwittingly signed arbitration agreements at the time of admission. When the admittees died, the family members attempted to bring wrongful death suits. The nursing homes raised the arbitration agreements as a subject matter jurisdiction defense and sought compulsion of arbitration. The Kentucky courts—all the way to the Kentucky Supreme Court—said “no”: with respect to waivers of access to jury trials (a fundamental right under Kentucky law), a clear statement is required for release. The U.S. Supreme Court overturned on the theory that the “clear statement” requirement served as back-door discrimination against the federal policy strongly (much too strongly, in my opinion) favoring arbitration.

Arbitration is empty preemption because judicial review of arbitration awards under the Federal Arbitration Act (the “FAA”) is virtually non-existent. My students’ collective eyebrows raise whenever I compare an arbitration to a governmental proceeding protected by due process. If you are somehow consigned to arbitration as a “plaintiff,” you are in deep trouble, and all of the statistics show it. Kindred suggests that a state measure need not even take aim at arbitration directly, it can be found by implication. Suppose there was a movement to require employees to assent to arbitration of workers’ compensation cases subject only to FAA review. How could a state enact a law forbidding the practice without suffering FAA preemption? 

I have recently been very concerned (and have written on this blog previously) about looming empty preemption in the realm of national tort reform. Members of the House of Representatives have been very interested in federal preemption of state tort law. This has implications for workers’ compensation, too, since the whole question of “adequacy” of workers’ compensation benefits was originally tethered to tort damages. Quid pro quo may mean less if torts damages are sufficiently reduced. Federally imposed tort damage ceilings, in other words, beg the question of other kinds of top-down federal mandates.

Which brings me to the 10th Amendment. There is strong opposition to national tort reform coming from conservative scholars. What business is it of the national government to dictate to states what their tort ceilings will be? Of course, the argument is easily turned around. If you want the Feds out of the business of ceiling-setting, you had better be prepared to extend the thinking to damage floors. The distinction here, though, is that at a certain point the reduction in damages (or workers’ compensation benefits) may call into question the very existence of a right. In any event, I do not think that I am willing to concede that large, generous states are incapable of driving a benefits race to the top, especially if ERISA preemption is loosening, as some have been arguing.

Michael C. Duff       

May 22, 2017 | Permalink | Comments (0)

Saturday, May 20, 2017

Workers’ Compensation and Undocumented Workers: Coverage versus Retaliation

Our own Judge David Torrey has done an excellent job on this blog bringing readers up to speed on the scope of workers’ compensation coverage of undocumented workers in the United States. To repeat Dave’s findings:

As far as I can tell, 32 states now have authority holding that an undocumented worker can be an employee for purposes of WC laws, 1 state has authority to the contrary (Idaho), 18 are officially undecided, and 1 (Wyoming) considers such workers employees if the employer believes the worker was documented.  The total is 52, as I am including D.C. and the LHWCA.

Since Dave wrote, the Ohio House of Representatives passed a bill that would, among other things, deny workers’ compensation benefits to undocumented workers. As of this writing that bill has not yet been acted upon by the state Senate.

A different type of undocumented worker/workers’ compensation story has been circulating recently. An injured worker in the Boston metro was apparently arrested by immigration officials. A public radio depiction of the unfolding of events suggests that, after a worker had been injured on the job, his bosses “set him up” by directing him to “lawyers.” He was met instead by ICE. I have no idea whether these events transpired in the manner related; but the alleged facts provide a terrific vehicle for discussing the distinction between statutory coverage of an employee and protection of that employee’s employment for exercising a statutory right.

Imagine that an acknowledged employee files a claim for benefits and is fired for doing so. A number of jurisdictions would hold such a discharge unlawful, either under their governing workers’ compensation statutes, or under a judicially created public policy exception to the employment at will doctrine. A customary remedy would be reinstatement of the employee to his or her job plus mitigated backpay. Now imagine that the fired employee is an undocumented worker. You see the problem? How could a unit of the government (whether a court or an administrative agency) reinstate an employee to unlawful employment? It is one thing to say that the undocumented worker should receive compensation for an injury sustained during employment which—unlawful or not—occurred. It is another thing altogether to say that the government should restore an unlawful working arrangement. On the other hand, and as Justice Oliver Wendell Holmes might say, let’s look at the situation through the eyes of a “bad man.” Might not an employer with an undocumented injured worker simply fire the worker or contact ICE? ICE will not reveal tipsters (as a former NLRB attorney I can attest to the fact). Without a reinstatement remedy, the undocumented worker filing a claim may risk his or her employment. Would the worker do it? It would depend on the quality of the job and the severity of the injury. A partially disabled worker, while entitled to benefits despite the discharge, could be hard-pressed to earn a living.

This simply puts us back in the position debated in the National Labor Relations Act case, Hoffman Plastic Compounds, Inc. v. N.L.R.B. Justice Scalia’s majority opinion argued that reinstatement and backpay remedies undermined the policy of federal immigration law. Justice Breyer, in dissent, argued that not providing recovery to statutory employees incentivized employers to hire these workers who, in effect, possess rights without remedies. The same policy questions are at issue in workers’ compensation cases. I would be quite comfortable, in all jurisdictions save Idaho, arguing that an undocumented injured worker was entitled to workers’ compensation benefits. I would be much less comfortable arguing that an undocumented injured worker discharged in retaliation for filing a workers’ compensation claim should be reinstated. I am also not clear on what disincentive exists to prevent employers from reporting undocumented injured workers to ICE, though I suppose if the employer had knowingly employed the worker without proper credentials that unlawful conduct would create a disincentive to report.

One final point – I continue to be of the view that states should consider explicitly insulating attorneys representing undocumented workers covered under various state employment statutes (including workers’ compensation) from professional responsibility charges.

Michael C. Duff        

May 20, 2017 | Permalink | Comments (0)

Thursday, May 18, 2017

More on Attorneys’ Fees – (Mistaken?) Development in Oklahoma

As a follow-up to my recent posts on Clower (which, as an aside, has been unsurprisingly indefinitely stayed), I had meant to say more about attorneys’ fees issues. As readers may recall, the judge in Clower found that a 15%-of-benefits cap on attorneys’ fees was unconstitutional. But a new situation just surfacing in Oklahoma strikes me as an even better vehicle for discussing attorneys’ fees. To refresh everyone’s recollection, the “American Rule” concerning attorneys’ fees provides that each side to a dispute is responsible for paying its own attorneys’ fees. One time-honored method for a plaintiff’s (or workers’ compensation claimant’s) counsel to get paid is to reach a “contingency” agreement with a client: if the client wins his or her case (the qualifying contingency), the attorney is entitled to a percentage of the damages (or, in the case of a workers’ compensation case, of accrued workers’ compensation benefits). For fairly obvious public policy reasons, the percentage recovery allowed the attorney is often limited—we want the workers’ compensation claimant, for example, to receive “adequate” benefits to accomplish the policy objectives of workers’ compensation. Much of the litigation over sufficient attorneys’ fees obscures the distinction between contingency and hourly arrangements.

Other methods for paying counsel exist, however. One well known model requires the losing party in a dispute to pay the hourly attorneys’ fees of the prevailing party. Oklahoma appears to have recently (and, one might say, radically) shifted to a prevailing party structure. Despite some recent snarky commentary suggesting that the shift was completely intentional, I am not yet clear about what happened—it may have been a mistake. The discussion around a change—erroneous or otherwise—nevertheless provides a teaching opportunity.

 From a policy perspective, it is often contended that “loser pays” structures discourage plaintiffs from pursuing cases—a penniless plaintiff may be stuck with a big bill. Perhaps that is true, but it seems to me the important consideration is the impact that the approach would have on the risk-calculus of plaintiffs’ lawyers working with cases in the aggregate. If you are a plaintiff or claimant’s lawyer who believes that there are a large number of clearly-meritorious cases that cannot be pursued (especially in their early stages) because of contingency arrangements, you might be attracted by the opportunity to take on “loser pays” cases. Furthermore, since contingency structures usually limit recovery to a percentage of retained indemnity benefits, a plaintiff’s or claimant’s lawyer might welcome the opportunity to litigate a greater universe of issues that do not concern indemnity benefits (think entitlement to vocational rehabilitation or to special equipment).

In addition to these fairly well-known kinds of “loser pays” problems, there is an Oklahoma-workers’ compensation-specific conundrum to consider. In light of the “equal protection” or “special laws” provisions of the Oklahoma constitution, how can courts apply one attorneys’ fees rule to civil case plaintiffs and a separate rule to workers’ compensation claimants (assuming that is the plan)? There may be a simple answer to this question, but it is not immediately apparent to me.

It is not always clear to casual observers how anything regarding attorneys’ fees implicates the constitution (federal or state). In this regard, there seem to be two strands of national conversation. First, limiting attorneys’ fees available for litigation of fundamental rights may interfere as a practical matter with the vindication of those rights on a systemic level. (The Florida courts, at the moment, hold that such interference violates the Florida constitution). Second, who gets to regulate attorneys’ fees—the courts pursuant to their inherent powers to regulate attorneys; or the legislature pursuant to, for example, a workers’ compensation statute? (The Utah courts at the moment hold that courts are the exclusive regulators). At its heart this is a separation of powers issue that will not be easily resolved and will be closely tailored to a particular state’s constitution. The premise underlying both categories of attorneys’ fees cases is that at a certain point limitation of attorneys’ fees unlawfully pushes claimants with arguably meritorious cases out of the system.

Michael C. Duff          

May 18, 2017 | Permalink | Comments (0)

Monday, May 15, 2017

Do State Lower-Court Decisions on Workers’ Compensation Matter?

I have a special appreciation for the questions of rising 3L law students – those who have completed their second year of law school but not yet started their third. They possess just enough knowledge to begin asking sharp legal questions, but do not yet possess the regrettable fear of asking “dumb” questions that seems, for inexplicable reasons, to settle upon third year students. One such “rising 3L” asked about my two recent posts on the Clower case (see this blog below).  Why, she queried, does it matter—in national terms—what a state court judge in Alabama thinks about the application of “open courts” provisions or substantive due process analysis to workers’ compensation benefit adequacy?

I was first absolutely thrilled that one of my students noticed the posts and picked up on common themes from my workers’ compensation course (and from my thinking and writing about workers’ compensation). My answer to her centered on two distinct strands of thought. First, appellate cases must come from trial decisions like Clower. This is almost universally true of the United States system. Questions of law cannot, consistent with our judicial system founded on cases and controversies, magically emerge from the Mt. Olympus of a state supreme court. A party must first attempt to prove a concrete and particularized harm in a trial court or administrative agency. Now it is quite true that a given trial decision would be reviewed in a particular state’s appellate system. But I am hard-pressed to predict, before the fact, which state’s supreme court would necessarily impact national workers’ compensation thinking. I told my student about my early career working as a trial attorney in the Philadelphia regional office of the National Labor Relations Board. One never knew which case was likely to make a splash. My office colleague took to trial a seemingly innocuous case which became Allentown Mack, one of the lead Supreme Court cases (authored by Justice Scalia) on judicial review of agency adjudication. We never saw it coming. Closer to home, who could have predicted a three-year-long national discussion on workers’ compensation opt-out in Oklahoma? Not me.

The second and related strand I emphasized for my student is that lower-court state decisions can speak to the permeation of national discussions. Clower appears to draw upon a national due process critique of the adequacy of workers’ compensation remedies. I am of the opinion that the mode of analysis employed by the judge in Clower will become more commonplace, particularly if national disability systems are disrupted in the current political environment (as I expect them to be). I find it remarkable that a lower-court judge in Alabama felt on sufficiently solid legal ground to render such an opinion. Seen in this light, it is not the sole measure of importance whether his decision is ultimately upheld by other courts or responded to by the Alabama legislature. These ideas have currency. I am currently studying the history of the development of the substantial evidence rule in administrative law and find myself, once-again, thoroughly impressed by the complexity and incrementalism of legal movements culminating in principles that we “moderns” now take for granted.

Michael C. Duff


May 15, 2017 | Permalink | Comments (0)

Wednesday, May 10, 2017

More on Clower v. CVS Caremark (The recent Alabama case)

In  Clower v. CVS Caremark the plaintiff challenged the Alabama cap on both indemnity benefits and attorneys’ fees. This post deals exclusively with the indemnity benefits question. (I’ll address attorneys’ fees in a later post).

Nora Clower appears to have been limited to (the decision is lean on facts) a permanent partial disability payment of $220 per week. A 1980s-era Alabama law, still in effect, says that permanently partially disabled workers are limited to the lesser of $220 per week or the average weekly wage. Thus, the most a permanently partially disabled worker can receive per week is $220. On the other hand, under the same provision compensation for other categories of disabled workers “shall be not less than, except as otherwise provided in this article, 27½ percent of the average weekly wage of the state as determined by the secretary, rounded to the nearest dollar, pursuant to subsection (b) of this section and, in any event, no more than 100 percent of the average weekly wage.”  

Judge Pat Ballard highlighted two distinct problems with the statutory scheme. First, categories of workers are being treated differently—arguably not receiving the equal protection of the law—in two distinct ways. To begin with, different categories of permanently partially incapacitated workers are being differently. Whether one was earning $100,000 per year or $20,000 per year at the time of injury, the most the weekly benefit can ever be is $220 per week. Next, permanently partially disabled workers are being treated from other categories of workers because they do not receive a benefit tied to annual increases in Alabama’s average weekly wage (the value of $220 obviously declines over time). The Judge found a violation of the Equal Protection Clause of the U.S. Constitution.

The Judge also took aim at the overall level of benefits, contending that $220 per week offends Alabama’s “open courts” provision and its underlying premise (the argument goes) of the “quid pro quo.” Under the open courts provision of Article I, Section 13 of the Alabama constitution, “all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.” The Judge concluded that under Alabama law, this “right to a remedy” language means that legislation abolishing common law actions is “automatically suspect.” The legislation may be upheld if 1) rights are relinquished by possessors in exchange for “equivalent benefits” or protection; or 2) if the legislation eradicates or ameliorates a perceived social evil and is a valid exercise of state police power. Drawing on this framework, the Judge first found a lack of equivalency because, unlike the permanent partial disability benefit structure, common law remedies contained no “cap.” Next, the Judge found, the exercise of Alabama’s police power must be “reasonable,” but the cap on permanent partial benefits, “meets the very definition of being arbitrary, capricious, irrational, and attenuated.”

My prediction is that the Judge will be reversed on his Equal Protection holding. Pursuant to the 14th amendment of the U.S. Constitution, the federal courts have steadfastly held that a legislative classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” To mount a successful rational basis challenge, a party must “‘negative every conceivable basis’” that might support the disputed statutory disparity. I doubt the Alabama courts would find that this standard has been satisfied.

The quid pro quo analysis under the Alabama constitutional “open courts” provision is in a completely different posture.  It is very difficult to say how that issue would be decided by the Alabama appellate courts. Frankly, it lays the issue of benefit adequacy bare. My suspicion is that a court may say that, even assuming arguendo that benefits are no longer sufficiently “equivalent,” operation of the workers’ compensation system continues to be a legitimate exercise of Alabama’s police power. Furthermore, most of the cited “common law abolishment” cases were decided in the 1980s. I would be surprised if there have been no refinements of the cases since that time. At a minimum, though, the law surrounding “open courts” seems sufficiently persuasive to require serious judicial consideration and to provoke legislative consideration of amendments. Perhaps more importantly the decision continues to refine emerging legal critiques centered on workers’ compensation benefit adequacy, or the lack thereof.

Michael C. Duff

May 10, 2017 | Permalink | Comments (0)

Monday, May 8, 2017

Alabama State Circuit Court Judge Strikes Down Alabama Workers' Compensation Act as Unconstitutional

An Alabama state circuit court judge today, in the case Nora Clower vs. CVS Caremark, struck down the Alabama Workers' Compensation Act as unconstitutional on two grounds. First, Judge Pat Ballard found that the $220 per week benefit cap on benefits was unconstitutional. Second, Judge Ballard struck Alabama's 15% cap [of accrued benefits] on attorneys' fees. Because the statute was struck on multiple grounds it appears the Act has been completely nullified. I would not expect that result to stand for long -- the appellate courts will soon intervene notwithstanding Judge Ballard's additional decision to stay implementation of the decision for 120 days.

I have not yet had a chance to analyze the decision, but it appears the judge questioned the $220 per week figure both because it was deemed too low and because, as applied, he thought it irrational. Quoting from the story to which I linked above, the judge said:

"There is little credibility in telling two injured workers, both of whom are 99 percent disabled due to work injuries, that they both get $220 per week... when one earns $8.50 per hour for a 40-hour work week, and the other earns an annual salary of $125,000."

The issue of attorneys' fees has been a hot one of late in workers' compensation circles, appearing to have single-handedly grounded Florida workers' compensation reform initiatives. 

The judge's finding on the benefit cap is somewhat curious. It is one thing to argue that the benefit amount is too low -- the plaintiff argued that the $220 per week figure dated from 1987, when she claims the figure was "above the minimum wage level and the poverty level." Writers on this blog have discussed on several occasions the issue of whether there is, or should be, some constitutional floor to workers' compensation indemnity benefits. I have argued at length that inadequate benefits should trigger heightened Constitutional scrutiny. Whether such an argument could make headway in Alabama depends entirely on that state's constitutional law.

On the other hand, all states tie benefit maximums to some percentage of the state average weekly wage and this universally has the effect of capping benefits to the detriment of high earners.

I hope to read the decision soon and will likely have more to say about it. 

Michael C. Duff

May 8, 2017 | Permalink | Comments (0)

Saturday, May 6, 2017

The Separation of Powers Restoration Act and Workers’ Compensation

The interesting aspect of some Federal law dramas playing out this spring is that they are likely to have impact on State law, though one is not quite sure how. Take the issue of judicial review of administrative agencies. This is a topic of interest to workers’ compensation lawyers because nearly all contested workers’ compensation cases are initially decided by administrative agencies. Administrative agencies make factual findings in adjudicated cases and apply the facts they find to existing law. When law on a particular subject is ambiguous, as the agency is attempting to apply law to facts it must also interpret the law in question. The degree to which courts, in the course of appeals of agency decisions, should recognize these agency “statutory interpretations” has been a matter of ongoing debate. Some commentators (and courts) hold that courts should “defer” to agency interpretations; some hold that such interpretations should merely be “respected,” a weak form of deference. Others contend that courts should be exclusively responsible for engaging in statutory interpretation, deeming any deference to agencies to be a form of (unconstitutional?) judicial abdication.

In January, the U.S. House of Representatives passed a Bill—the Separation of Powers Restoration Act of 2017, docketed in the Senate in March, but not yet acted upon by that body—that would abolish the deference standard applied by federal courts since the 1980s, so called Chevron deference as set forth in the Supreme Court’s famous Chevron opinion. Chevron directs courts to uphold agency interpretations of their “organic” statutes where 1) a statutory ambiguity in fact exists; and 2) the interpretation is “reasonable.” The language of the House Bill——states that courts, when reviewing agency action under Administrative Procedure Act, shall:

“. . . decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.”

In a nutshell, this provision would abolish both Chevron deference and the Auer/Seminole Rock line of cases by which courts afford deference to administrative agencies’ interpretations of their own rules. Should the Bill become law, Congress will have shifted power from the executive branch to the judiciary, a separation of powers determination that Congress is probably at liberty to make, but one that may lead to surprising results depending on the particular reviewing court and the agency action (or inaction) under consideration.

In any event, the States are obviously not bound by Federal separation of powers rules. In a 2014 article, Professor Aaron Saiger of the Fordham University School of Law contended that only a single state—Maine—followed Chevron more or less verbatim. As Professor Saiger’s review of prior surveys of state application of Chevron-like standards revealed, some states’ courts seem to defer to agency statutory interpretations strongly, some weakly, and some not at all. Nevertheless, Chevron has been generally contentious because of its implicit underwriting of the administrative state. And just as cases like Universal Camera and Overton Park introduced a “movement” of judicial insistence that agencies take a “hard look” at facts, the House Separation of Powers Act suggests a broader policy retreat from the concept of affording deferential review to agency statutory interpretations. For workers’ compensation practitioners and policy makers the bottom-line question is whether you would prefer that statutory ambiguities be resolved in the short term by administrative agencies or courts. I suspect that is not an easy question for most readers to answer.    

Michael C. Duff

May 6, 2017 | Permalink | Comments (0)

Monday, April 24, 2017

Workers’ Compensation Statutes as Governmental “Takings”: A Different Perspective on Benefit Adequacy

Workers’ compensation benefit adequacy discussions are difficult because workers’ compensation claimants in reality fall into two separate “victim” categories. Accident victims are the product of pure chance; negligence victims are the product of unintentional “wrongdoing.” Negligence victims are the direct heirs of the quid pro quo. With respect to them, a true Grand Bargain (as endorsed by the Supreme Court in the famous N.Y. Central R.R. Co. v. White case) applies. But what about accident victims? I suspect that those who argue (implicitly or explicitly) that subsistence benefits are morally justifiable have in mind accident victims. After all, the world of 1911 would have provided accident victims with no compensation at all. Any deal that an accident victim got was a good deal. In a way, accident victims were the “free riders” of a system agreed to by employers desiring to insulate themselves from evolving notions of tort liability. The point of the workers’ compensation system was, in part, to avoid the expense of separating, through tort litigation, meritorious from non-meritorious cases. In the subsequent America of social security disability benefits, employer-provided disability benefits, and unemployment compensation, it has been easier for some to see limited harm in the provision of subsistence-level-only workers’ compensation benefits. Costs are understood (consciously or unconsciously) to be easily shift-able between benefit regimes. Some of these assumptions may be dramatically altered in the next year or two. But I believe this fairly describes the good-faith moral deliberations of present-day workers’ compensation analysts able to defend the woeful levels of current workers’ compensation benefits.

Nevertheless, it is still not cost-free to separate accident from negligence victims. And, even taking pain and suffering out of the equation (as those who have seldom encountered pain are wont to do), purely compensatory tort damages will create “losers” of some unknown number of employers. It is still true that some employers, in the absence of insurance, would be devastated by tort liability even in “tort-reform” states. Thus, assuming there continues to be little appetite for incurring the costs associated with separating workplace injury victims into different legal categories, and assuming a continuing market for tort immunity, we are still left with the problem of how to “price” workers’ ex ante exchange of tort rights for statutory benefits.

The analysis is further complicated because as a society we still seem undecided where remedies for personal, physical injury (like tort rights) sit in the hierarchy of rights. True enough, drafters of the Constitution, who were relatively unlikely to routinely face the terrors of physical injury, explicitly privileged property and contract rights over all others, as embodied in the 5th Amendment of the Constitution. If the Government takes my property, there is a virtually irrebuttable presumption that I am entitled to “just compensation.” But what if the Government takes my right to pursue a remedy for physical injury? Is that not a “taking?” Is that not what the Court in White was suggesting implicitly: we are signing off on the Grand Bargain because we think, as it has been presented to us, it is in fact a bargain; if it were not, we would look at the situation differently. It is unclear how the Court of that time might have evaluated an un-square deal. And that is worthy of exploration.

To that end, my writing this summer will center on how we might look at the adequacy of workers’ compensation benefits viewed through the prism of “just compensation” utilized in property law.

Michael C. Duff

April 24, 2017 | Permalink | Comments (0)

Wednesday, April 19, 2017

2016 College of Workers’ Compensation Lawyers (CWCL) Student Writing Contest Winner

    As a former History Prof, when I review writing contest entries, I am always impressed by a relevant and illustrative historical reference.  Alex Lonnett, this year’s Writing Contest winner, began his paper on “Employee Waivers of the Right to Sue Third Party Tortfeasors” with this prefix: “Tales of trouble like these are worth telling, as they reveal the spirit of the people who suffered.”

     That was a quote from Crystal Eastman, a progressive era lawyer whose 1910 report, “Work Accidents and the Law” on Pittsburgh labor conditions help set the stage for the first workers’ compensation law (which she drafted in New York state).  Alex followed this eloquent beginning with a compelling argument that employee waivers were void as against public policy.

    One of the symposium speakers at our annual conference posed this question: “Where will we find the next Crystal Eastman?”  The answer, perhaps, is among our contest entrants (several of whom, by the way, are pursuing careers as workers’ compensation lawyers. I should also note that several winners, like Alex, are former students of Judge David Torrey, the College Board Secretary who also teaches Workers’ Comp at Pitt Law School.).  So, on behalf of the College and the Writing Committee, I am pleased to announce the Law Student Writing Contest First Prize to Alex Lonnett.  Alex received a $2000 prize, and his law school (Pitt) received $1000.  In addition to posting on the College website, Alex’s essay will be published in the Work Injury Law and Advocacy Group national magazine Workers First Watch and the National Association of Workers’ Compensation Judiciary Newsletter (edited by College Board member Luanne Haley) and an additional podcast posted by Board member Alan Pierce.

                The Second Place winner was Zach Hadler of Missouri Law School. Congratulations to the winners and thanks to all who participated.

Tom Domer

April 19, 2017 | Permalink | Comments (0)

Wednesday, April 12, 2017

Mark Warner’s Curtain: Portable Benefits, the Gig Economy, and a Grander Opt-Out

Workers’ compensation observers have in recent years become accustomed to a narrow version of legal “opt out.” In 2013, Oklahoma passed a law, ultimately found unconstitutional under state law in 2016, authorizing (even encouraging) employers to opt-out of that state’s workers’ compensation law. I want to suggest that a broader version of “opt out” has been playing out in the form of the “Gig economy.” It is often contended that literally everything about the Gig economy is so different from the “traditional” economy that different workplace legal rules must be applied. Gig economy employers, it is claimed, are simply unable to comply with workers’ compensation laws, employment discrimination laws, or labor relations laws. It is never quite clear why this is so.

Much of the alleged legal struggle of applying law to the Gig economy centers on the threshold concept of “employee”: whether an individual working for a Gig employer is, or is not, an employee within the meaning of a particular employment statute. If not, the individual is not covered by the law, and the employer need not comply with it. This is hardly a new question; the test for employee status is as old as the onset of comprehensive employment statutes first passed in the twentieth century, statutes employers have long resisted. My law students apply this test in virtually every exam I give. It is unsurprising that contemporary companies utilizing labor—including Gig employers—claim not to understand the well-known test as part of their broader argument of needing to opt-out from labor statutes and the costs imposed on them (while failing to acknowledge the benefits conferred by the statutes on the broader society).

The Gig economy, opt-out project (“we are not employers”)—unlike the much narrower workers’ compensation opt-out gambit in Oklahoma (“we are not ‘regular’ workers’ compensation employers”)—has been almost exclusively “unilateral.” By unilateral, I mean it has been actuated primarily by employers. States’ regulatory structures have either opposed radical deregulatory efforts or, at a minimum, have not wished to encourage them. One of the disorienting questions surrounding the Oklahoma debacle, however, was why that state would simultaneously wish to have, and not to have, a workers’ compensation statute. The politics of the situation are perhaps not so complicated. Imagine trying to explain to the general public that a hundred-year old benefits system had been jettisoned simply because businesses (like all of us) wanted to save money. The question surfacing immediately is how far such a rationale can go. What are its limits? Much easier, and less provocative, to provide an elastic “legal” vehicle allowing sophisticated employers to incrementally and virtually imperceptibly escape from a century-old legal guarantee.

I recently read in WorkCompCentral (behind a paywall) that a movement for “portable” benefits for Gig workers is emerging. I think this is a terrible concept, for it buys into the idea of what I call a “bi-lateral” opt-out. By “bi-lateral,” I mean that, like the situation in Oklahoma, governments “partner” with business to concede the rule of law and erect “government-lite.” At the state level, a statutory-lite benefits regime is probably preempted by ERISA, which strictly forbids state regulation of any employee benefit plans, except those maintained solely for the purpose of complying with state workers’ compensation, unemployment compensation, or disability laws (not, by the way, “lite” versions of those laws).  At the federal level, a “Gig” structure (which Senator Mark Warner of Virginia has apparently championed), may effectively frustrate state attempts to compel employers to simply obey state law (much of this project would represent federal intrusion into historically state law). Whether of federal or state origin, the touchstone of the bona fides of “portable benefits” will be the extent to which the benefits are commensurate with traditional benefits. If they are not, any such opt-out scheme is, in my view, deeply pernicious and inimical to the rule of law. Better to compel employers to be the employers they already likely are under well-established traditional rules and not assist them in escaping their responsibilities under the law (and as part of the social contract). In short, pay attention to the man behind the curtain offering “portable benefits.”    

Michael C. Duff

April 12, 2017 | Permalink | Comments (0)

Sunday, April 2, 2017

Tort Reform Winds and Workers' Compensation

Close observers of the workers’ compensation landscape will recall that Florida claimant attorneys have in recent years been arguing that the steady erosion of workers’ compensation benefits over the past few decades have essentially undone the quid pro quo of workers’ compensation benefits in exchange for tort remedies. A separate component of the argument contends that changes in tort law over the last few decades have resulted in the systematic undervaluation of workers’ compensation claims. At the beginning of the twentieth century, the employer negligence defenses of contributory negligence, assumption of the risk, and the fellow-servant rule frequently shut off workers’ workplace injury claims altogether. In modern times, however, a substantial majority of states have substituted comparative negligence for contributory negligence and assumption of the risk.  Comparative negligence does not automatically shut off a plaintiff’s claim if the plaintiff, too, was negligent.

Suppose a worker was injured in the workplace by a damaged tool. Somehow it is determined that both the worker and the employer were negligent (“careless”). The worker is deemed 30% negligent; the employer is deemed 70% negligent. The damages (however calculated) are a million dollars. Under early 20th century negligence law, the worker’s claim would have been completely shut off. But in the absence of workers’ compensation, 21st century negligence law, in a comparative negligence state, would in theory allow the worker a recovery of $700,000. Thus, the theory continues, the workers’ compensation for tort quid pro quo of an earlier era was premised on case values that were, in the aggregate, lower than comparable cases, if applying 21st century negligence law. The deal is therefore argued to be “bad,” and should perhaps be renegotiated, especially in the context of eroding benefit levels and coverage.

But does this argument work in reverse? Consider the dramatic tort reform bills that have been recently passed by the U.S. House of Representatives. Although substantively beyond the scope of this post, H.R. 985, the Fairness in Class Action Litigation Act, H.R. 725, the Innocent Party Protection Act, H.R. 720, the Lawsuit Abuse Reduction Act, and H.R. 1215, the Protecting Access to Care Act would almost certainly act in tandem to reduce the cost to defendants (including employer-defendants in the absence of a workers’ compensation regime) of negligence suits. Although the fate of the bills in the U.S. Senate cannot presently be known, one can easily imagine employers making the argument that the quid pro quo is no longer a good trade for them in light of a weakened tort regime.

Of course, as I have argued elsewhere, tort law should not be subject to legislative modification, willy-nilly: I value my property (remedy for dispossession of which is constitutionally-protected), but it is difficult for me to claim that I value it more than my right to a remedy against one who has physically injured me. Most American courts, however, continue to allow legislatures to make virtually any non-irrational modifications to injury remedies. As long as this continues, we will be reconsidering periodically and critically the acceptability of the quid pro quo.

Michael C. Duff

April 2, 2017 | Permalink | Comments (0)

Sunday, March 26, 2017

The Re-Dangerous: Taking into Account Re-Shoring When Assessing Future Workplace Danger

I had the good fortune to see an excellent panel presentation on “Injury Frequency Rates and Claim Trends” on March 18, during the inaugural College of Workers’ Compensation Symposium in Phoenix. Peter Rousmaniere showed slides persuasively demonstrating drops in the frequency of injuries and claims-filing over the last few decades, and predicting a substantial further fall-off in claims through the year 2022. Rousmaniere’s panel mates, Brad Ingram and Richard Thompson affirmed that the findings were consistent with their experience; and much of the attendees at the symposium appeared to be nodding in silent agreement. Perhaps predictably, an attendee’s hand shot up. “You know, this is pretty scary to those of us who make our living litigating workers’ compensation cases.” The comment, while refreshingly honest, would unlikely generate much sympathy among the general public. After all, most would agree that it is a great thing if human bodies are being torn asunder in the workplace with diminished frequency.

Of course, as Mr. Rousmaniere himself made clear, none of this is to suggest that those who are injured are being adequately compensated. Adequate compensation is, in my judgment, clearly not the rule. And if injuries really are diminishing a rather immediate question is why there should be workers’ compensation undercompensation in an era of apparent diminishing cost. Moreover, although Mr. Rousmaniere addressed the issue of under-claiming by claimants in his well-crafted model, this veteran of the working class (that is, me), has always suspected gross underreporting of workers’ compensation injuries. I have personally worked in blue collar workplaces (for my daily bread, not as an “experiment”) in which it was understood that you would be fired immediately if you filed a workers’ compensation claim. There is the letter of the law, the data of researchers, and the lived experience of the real world. Different things, all.

Leaving all that to one side, however, I wanted to say a word about the predictive power of injury models generally. President Trump’s proposed budget calls for a cut of $2.5 billion at the Department of Labor. One need not be a soothsayer to understand that OSHA, SSI, and Medicaid (among other programs) are on the verge of being pared down to virtual non-existence. I am similarly unenthusiastic concerning all federal programs dealing with workplace safety. Let us speak plainly. American manufacturing left the country to avoid regulation and unionized labor costs. As private sector union density approaches 6%, and safety regulations evaporate, it is not so hard to imagine an American workplace that is “re-dangerous.” Cars were no doubt being made dangerously in China, and if their manufacture is re-shored I should not be surprised to rediscover dangerous conditions. No doubt, robots and the like may improve the situation. But as last Friday’s Bloomberg piece—Inside Alabama’s Auto Jobs Boom: Cheap Wages, Little Training, Crushed Limbs—made abundantly clear, models of future injury rates will have to take into account the re-dangerous.   

Michael C. Duff

March 26, 2017 | Permalink | Comments (1)

Thursday, March 23, 2017

Undocumented Workers and Workers' Compensation Rights in National Perspective

            On Saturday (March 18, 2017), at the ABA Work Comp (WC) Seminar in Phoenix, I presented a paper on workers' compensation rights of undocumented workers.  (I was assisted in the project by a talented Pitt Law student, Justin Beck, who is going into the field.)

            The paper concludes with a fifty-state table.  It is posted at

            As far as I can tell, 32 states now have authority holding that an undocumented worker can be an employee for purposes of WC laws, 1 state has authority to the contrary (Idaho), 18 are officially undecided, and 1 (Wyoming) considers such workers employees if the employer believes the worker was documented.  The total is 52, as I am including D.C. and the LHWCA. 

            Not everyone counts this item quite the same way.  The attorney Gary Wickert, long known as a national subrogation expert, has a new online table out (cited in the bibliography), with slightly different results.   

            The bigger issue, nationwide, is the extent to which such workers are entitled to benefits.             

            Of special interest was the seminar commentary of the two injured worker lawyers from Phoenix and Tucson who presented along with me.  In Arizona, no statute or common law declaration unequivocally exists that an undocumented worker is an employee for WC purposes.   The language one of my colleagues used was that the state was “officially neutral” on the issue, and both sides seem to avoid the worker’s immigration status.  As many undocumented workers sustain injury in the state, this custom and practice seems quite remarkable.


March 23, 2017 | Permalink | Comments (0)

Friday, March 10, 2017

Pennsylvania Commonwealth Court Citing AMA Causation Guides (Second Edition) and its Reference to the Bradford Hill Criteria

            The AMA Guides to the Evaluation of Permanent Impairment, now in its Sixth Edition, is an iconic text well known to all in our field.  And, of course, in my state (Pennsylvania), the manual is under full-frontal assault in our Supreme Court.  Protz v. WCAB (Derry Area School District), 124 A.3d 406 (Pa. Commw. 2015), appeal granted, ___ A.3d ___ (Pa. 2016).  (2016 Pa. LEXIS 501 (Pa. Mar. 22, 2016), argued Nov. 1, 2016).

            Less well known is another book: the AMA Guides to the Evaluation of Disease and Injury Causation.  This book, in its Second Edition, has the goal of assisting health care providers in generating expert opinions on causation “based on a careful review of the [patient’s] clinical findings, workplace exposures, and the literature linking (or not linking) the exposure of concern and the condition in question.”  Of course, you will discern from this description that the book is a bodacious valentine (792 pages), to evidence-based medicine (EBM). (Note: I was a lay reviewer of the book.)  

             In the spirit of promoting EBM, the authors feature a short subchapter (pp. 688-91), describing the “Bradford Hill Criteria.”  They are described in Wikipedia as follows: “The Bradford Hill criteria, otherwise known as Hill’s Criteria for causation, are a group of guidelines that can be useful for providing evidence of a causal relationship between a putative cause and an effect, established by the English epidemiologist Sir Austin Bradford Hill (1897–1991) in 1965.” 

            It’s clear that the lawyers at Chartwell, the Pennsylvania law firm, know all about the book and Hill’s Criteria.  In their truculent opposition to presumption-based firefighter cancer claims, on behalf of the City of Philadelphia, it is obvious that defense counsel has used (and is using) this manual in cross-examination of the cancer-victims’ causation expert.  They have done so to try (in all reported cases, successfully), to discredit the expert’s testimony as not being based on EBM principles.  In affirming several of the cancer claim denials, the Commonwealth Court has noted the Hill Criteria and its most immediate source in AMA Causation Guides

            One can’t say that the court is ratifying the Hill Criteria.  This is so as the opinions are simply affirming trial judge credibility determinations.  Still, surely lawyers and judges have been better educated about the contemporary thinking about causation in disease (and other) cases, through the court’s exploration of the guidelines. 

            It’s worth noting, in this regard, that the court in the past has been very permissive in what expert medical proofs the trial judge can accept.  In this latter respect, a memorable declaration: the WCJ can “reject a whole school of science if he wishes ….” Wheeling Pitt v. WCAB (Bruce), 827 A.2d 564 (Pa. Commw. 2003).

             Will this permissive approach survive as the rule? Perhaps so.  Still, effective counsel (on both sides), in occupational disease, and other non-obvious cases, will now surely be considering the Hill Criteria.  

             A postscript: The intrigue in Pennsylvania will continue.  In this regard, the most prominent of the Philadelphia firefighter cancer cases has now been accepted by the Supreme Court. See City of Philadelphia v. WCAB (Sladek), 144 A.3d 1011 (Pa. Commw. 2016) (allocatur granted).  



March 10, 2017 | Permalink | Comments (0)

Tuesday, March 7, 2017

Taking a Stab at the Top Five Workers' Compensation Cases, 2016

            The ABA-founded honor society “The College of Workers’ Compensation Lawyers” (CWCL) will soon convene its first educational Symposium in Phoenix. The half-day CLE, on Saturday, March 18, 2017, immediately follows the ABA workers’ compensation sections educational seminar. 

            The moving force behind the event, Florida Judge John Lazzara, awarded me the task of selecting, and then presenting on, the “nation’s five most significant court cases of 2016.” My panel consists of none other than Professor Mike Duff, of this blog; and one of the icons of Pennsylvania comp, Burke McLemore of Thomas, Thomas, & Hafer.  (Burke will also be in Phoenix to be inducted as a Fellow of the CWCL.)

            Here is my pick of the top five, selections which will likely be familiar to you if you have followed the past tumultuous year in the field: 

  1. Vasquez v. Dillard’s, Inc., 381 P.3d 768 (Okla. 2016) (Oklahoma statute allowing “opt-out” found unconstitutional).
  2. Rodriguez v. Brand West Dairy, 378 P.3d 13 (N.M. 2016) (exclusion of agricultural workers from workers’ compensation coverage held unconstitutional). 

  3. Protz v. W.C.A.B. (Derry Area School Dist.),124 A.3d 406 (Pa. Commw. 2015), appeal granted, 124 A.3d 406 (Pa. 2016) (broad delegation by legislature to oblige physicians and legal system to utilize the “latest edition” of the AMA Guides was constitutionally impermissible) [note: argued 11.1.2016.]
  4. Vitale v. Schering-Plough Corporation, 146 A.3d 162 (N.J. Super. A.D. 2016), pet. for cert. for rev. granted, 2016 WL 7665625 (employment clause obliging workers to waive right to sue third parties in event of work injury held violative of public policy).  
  5. Castellanos v. Next Door Co., 192 So.3d 431 (Fl. 2016) (mandatory sliding-scale fee attorney’s fees schedule which could afford minimal fees violated due process clauses of Florida and United States Constitutions).

             For more information about the two programs, see




March 7, 2017 | Permalink | Comments (0)

Monday, March 6, 2017

Medical Monitoring and the Pennsylvania Tooey Exception for Late-Manifestation Diseases

            As I noted here last week, in Pennsylvania, the Supreme Court generally enforces the exclusive remedy with an iron first. There is, indeed, no intentional tort exception.  Barber v. Pittsburgh Corning Corp., 555 A.2d 766 (Pa. 1989); Poyser v. Newman & Co., 522 A.2d 548 (Pa. 1987).

            Yet, under the landmark case Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), an employee may sue his or her employer for diseases which manifest themselves outside the law’s 300-week statute of repose. A remarkable exception to the exclusive remedy hence exists.  

            Aggressive plaintiffs in Philadelphia recently tested the limits of the exception.  See Smith v. American Airlines, 2016 U.S. Dist. LEXIS 107402 (E.D. Pa. 2016)    

            There, fleet service agents alleged that they had been exposed to cancer hazards from long-term, unsatisfactory use of airplane lavatory cleaning chemicals. They brought a class action in federal court seeking damages in the nature of medical monitoring.  The district court, however, held that such claims were barred by the exclusive remedy.  The court, in this regard, refused to read – or expand – Tooey.  Specifically, the court refused to allow claims for hazards that might cause delayed manifestation diseases more than 300 weeks after last exposure.  The court dismissed the idea that Tooey should be so liberally interpreted, responding that “this argument is highly speculative and without legal support.” 

            The court added, meanwhile, that “costs for medical monitoring qualify as a claim” under the Pennsylvania Workers’ Compensation Act.  (See Footnote 14).  Thus, the exclusive remedy would in any event protect the employer from this type of civil claim.  For this proposition, the court cited Brendley v. Pennsylvania Department of Labor & Industry, 926 A.2d 1276 (Pa. Commw. 2007); Fried v. Sungard Recovery Services, Inc., 900 F. Supp. 758 (E.D. Pa. 1995).  On this point, see generally Torrey-Greenberg Treatise, § 4:10 (3rd ed. 2008).   


March 6, 2017 | Permalink | Comments (0)

Friday, March 3, 2017

Authority now available regarding insurance coverage for civil action claims brought under Tooey v. AK Steel Corp. (Pa. 2013)

            In Pennsylvania, the Supreme Court generally enforces the exclusive remedy with an iron first. There is, indeed, no intentional tort exception.  Barber v. Pittsburgh Corning Corp., 555 A.2d 766 (Pa. 1989); Poyser v. Newman & Co., 522 A.2d 548 (Pa. 1987).

            Yet, under the landmark case Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), of the Pennsylvania Supreme Court, an employee may sue his or her employer for diseases which manifest themselves outside the law’s 300-week statute of repose.

            A remarkable exception to the exclusive remedy hence exists.  

            One school of thought, since 2013, has posited that general liability policies (like the CGL) will cover the employer in such situations.

             When, in 2013, I first heard that assertion, I rejected it out of hand, and have remained of the view that no authority exists to commend it.  Virtually all liability policies (as far as I know) exclude bodily injury claims by employees against their employers.  The idea, after all, is that commercial liability policies are supposed to be coordinated, and that insurance for those claims is found under the Workers’ Compensation and Employers Liability Policy.  

            This position seems to have been vindicated.  A persuasive Pennsylvania federal district court case, filed on January 26, 2017, has ruled that a claim under Tooey was not covered by a general liability policy which included such a standard exclusion.  The court flatly held that the bodily injury exclusion for claims by the insured’s employees was applicable in the face of a Tooey claim.  (The plaintiff widow’s spouse had developed, and died from, mesothelioma, more than 300 weeks after his last exposure in the 1970’s, and was suing his former employer in tort.)   

            In the declaratory judgment case that so held, the court granted the carrier’s motion for summary judgment. National Fire Ins. Co. of Hartford v. Burns & Scalo, 2017 WL 372144 (E.D. Pa., filed Jan. 26, 2017).  The carrier had no liability to its general liability policy-insured.   

            As suggested above, presumably any such insurance coverage is found under Part 2 of the Workers’ Compensation and Employers Liability Policy. See generally Torrey-Greenberg, § 23:43. 

            That’s why employers purchase Part 2 coverage.  See Donald D. DeCarlo & Roger Thompson, Workers Compensation: The First Hundred Years, p.207 (American Society of Workers Compensation Professionals 2nd ed. 2012) (noting, inter alia, that Part 2 features the following language: “the insurer promises to pay all sums that the insured legally must pay as damages because of the bodily injury to employees ….”). See generally David D. Thamann and Diana B. Reitz, Workers' Compensation Guide: Interpretation and Analysis, Chapter 3 (National Underwriter 2000).

March 3, 2017 | Permalink | Comments (0)

Thursday, March 2, 2017

Compensability of Injuries from Hate Crimes and other Neutral Risk Assaults -- Revisited

            As I noted in my December 29, 2016 posting, the talented Post & Schell attorney Kyle Black has written the definitive brief (for Pennsylvania, in any event), on the issue of whether an injury or death caused by a hate crime arises in the course of employment.  (See below).  Mr. Black has now allowed me to post this important briefing on my website.  See

            The next time we encounter injury or death via these unfortunate events, Pennsylvania lawyers and judges will be ready to read a top-notch critical analysis of the governing law.


March 2, 2017 | Permalink | Comments (0)

Will the Pennsylvania Supreme Court Really Jettison the AMA Guides?

            Workers’ compensation lawyers in Pennsylvania and elsewhere are waiting nervously for the Supreme Court to make its ruling in the renowned Protz case. See Protz v. W.C.A.B. (Derry Area School Dist.),124 A.3d 406 (Pa. Commw. 2015), appeal granted, 124 A.3d 406 (Pa. 2016). The big issue – will the court really accept the claimants’ advocacy that the legislature had no ability to adopt the AMA Guides?

            So some background …. Many state laws provide that awards of permanent disability are to be based on impairment ratings derived by the American Medical Association manual, Guides to the Evaluation of Permanent Impairment. Workers have, over the years, mounted constitutional challenges to the ability of legislatures to adopt the Guides by reference. See Steven Babitsky & James J. Mangraviti, UNDERSTANDING THE AMA GUIDES IN WORKERS’ COMPENSATION, FIFTH EDITION, p.3-1 et seq. (5th ed., 2015 Supp.).

            In 2015, such a challenge was successful, as a middle-level Pennsylvania court (the Commonwealth Court) held that the law’s proviso that the impairment rating evaluation (IRE) physician is to utilize the “most recent edition” of the Guides was violative of the Pennsylvania constitutional provision forbidding “unconstitutional delegation of authority,” found in the constitution at Article II, Section 1.

            (As to the statute, see Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, PA. STAT. ANN. tit. 77, § 511.2.)

            The Workers’ Compensation Judge on remand was to utilize not the Sixth Edition but, instead, the Fourth – that is, the edition which existed when the IRE statute was enacted in 1996.  The court noted that the Pennsylvania Constitution provides, at Article II, Section 1, “the legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.”  This provision embodies “the fundamental concept that only the General Assembly may make laws, and cannot constitutionally delegate the power to make law to any other branch of government or to any other body or authority.”

            As foreshadowed above, the Pennsylvania Supreme Court accepted the case on appeal, and oral argument was held on November 1, 2016.

            No consensus seems to exist on how the court will rule.

            The court could affirm the Commonwealth Court, and we in Pennsylvania would hence revert to use of the Fourth Edition. Or, in a dramatic gesture, the court could indeed completely jettison the AMA Guides. This speculation is fueled by Chief Justice Saylor’s obvious dislike of the manual.  Indeed, in a decision filed in January, the Chief Justice quoted Dr. Nortin Hadler’s memorable critique when he ventured, “we note that the approach of tying the continuation of disability benefits to impairment rating protocols has been decried by many physicians and characterized as ‘unappealing, if not Orwellian’ in commentary.” See Duffey v. W.C.A.B. (Trola-Dyne, Inc.), ___ A.3d ___ (Pa., filed Jan. 19, 2017).  See 2017 WL 277462.

            In any event, a veteran workers’ compensation lawyer has speculated to me, “they [the Court] [must] not have a majority for any view regarding Protz yet… If the Chief Justice can get three other votes, I think it gets thrown out lock, stock and barrel …. Then it will be a fight to the death in the legislature to get something the current administration will agree to.” 

March 2, 2017 | Permalink | Comments (0)