Monday, December 3, 2018
Top Northeast Pennsylvania Physicians Talk Opioids, Medical Marijuana, and CTE - With a Coda on Nurse Case Management
Northeastern Rehabilitation Associates, a group of physiatrists who specialize in treating injured workers, convened its annual occupational medicine seminar on October 16, 2018. The venue, like the last few years, was the Mohegan Sun at Wilkes-Barre, PA.
I always counsel my lawyer and judge colleagues here in Pennsylvania: the seminar is a can’t-miss if one is interested in immersion in the critical medical and medico-legal topics of workers' compensation.
I have set forth in an essay select items which I discerned, from my notes, as highpoints for the lawyer and judge from that seminar. They deal with opioids, medical marijuana, and CTE. The seminar audience was largely nurse case managers – who seem more and more a part of the litigated workers’ compensation case – and the final session of the program dealt with the role and ethics of such professionals.
You will find the essay here: Northeastern Rehabilitation Occ-Med Seminar FINAL
Wednesday, November 28, 2018
A Part-Time Professor's Recommendations for Holiday Workers' Compensation Book Giving (The Best Books I Read, 2018)
I boldly offer here recommendations for holiday book giving for that special lawyer or judge in your life (or, for that matter, you or some other person), who is keen to enhance his or her knowledge about our field and/or those areas with which we often interface.
The writer Paul Bowles once indicated that he learned how to speak Spanish by studying a new word every morning. He’d paste the word on a slip of paper and tape it to the mirror, better to review while he shaved. My own strategy for muscling-up on comp knowledge is to utilize the bus ride to and from work as a dedicated period of reading and annotation. It’s also a balm for our bleak and the babies-are-crying ride across the ridges and slopes above the skyscrapers here in Pittsburgh, a trip I have dubbed, at least on the bad days, the Voyage of the Damned.
Anyway, empowered by that approach, here are books I read from which, over the past year, I learned the most. I am pleased to recommend them to you.
The changing nature of work is always on the minds of workers’ compensation professionals, who wonder how things like misclassification, artificial intelligence, and automation will change work, both for us and for the workers whose injuries give rise to the need for the program. Many a wonky provocateur has appeared at seminars of late peddling anxiety about the future of work – and workers’ compensation itself. Indeed, such talking heads suggest, even judges can be eliminated by introduction of the innovative “Justice 2000” computer!
In any event, three books will better help you sort the wheat from the chaff on this topic. The Fissured Workplace: Why Work Got So Bad for So Many and What Can Be Done to Improve it (Harvard University Press 2014), by David Weil, is the best place to start. Dean Weil explains in general how work has changed over the recent decades, emphasizing the tendency of large companies to contract out all aspects of commerce, other than their core competencies. Professor Louis Hyman digs deeper in his book, Temp: How American Work, American Business, and the American Dream Became Temporary (Penguin 2018), setting forth dual (but related) narratives accounting for the growth of staffing agencies and the glamorous business consultancies that recommend them so heavily. As for innovations in communications, the rise of the gig economy, and the role of employment law, the best book right now for the lawyer is Humans as a Service: The Promise and Perils of Work in the Gig Economy (Oxford University Press 2018), by law professor Jeremias Prassl.
As a lawyer, I never did figure out how to effectively cross-examine a chiropractor. Resources have always been thin on that topic, and the conventional medical literature to this day largely excludes reference to chiropractic theory and practices. Considering feuds and lawsuits going many decades back, critical analysis of chiropractic by allopathic physicians seems nowhere to be found. One will better be equipped to understand chiropractic generally, and how it has been and is subject to criticism, by way of Holly Folk’s, The Religion of Chiropractic: Populist Healing from the American Heartland (University of North Carolina Press 2017). This book was also a pleasure to read – a new revelation on every page. I did not know, for example, that the original Dr. Palmer, father of chiropractic and the namesake of the top chiropractors’ school, also sold goldfish out of a wheelbarrow.
On the topic of things medical, an invaluable book is Teeth: The Story of Beauty, Inequality, and the Struggle for Oral Health in America (New Press 2017), by Mary Otto. Here the author persuasively establishes that many of our disempowered citizens are held back (and even mortally endangered) by poor dental health. She finally provides (for me, anyway), the answer for why Medicare does not cover dental treatment and why so few dentists will accept Medicaid patients.
For the real student of the law, who wants to know how principles of American evidence law were first derived from the cases, and comprehensively cataloged, I recommend Andrew Porwancher’s John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (University of Missouri Press 2016). Meanwhile, for the lawyer or judge who wants a concise, updated evaluation of the workers’ compensation system from the social insurance economist’s point of view, the best book is by H. Allan Hunt and Marcus Dillender, Workers’ Compensation: Analysis for its Second Century (Upjohn Institute 2017).
There is poetry on my list of recommendations. West Virginia University (my alma mater) in 2018 republished the long modernist poem The Book of the Dead (West Virginia University Press 2018), by Muriel Rukeyser. This is an account in verse, originally published in 1938, of the terrible Hawk’s Nest Tunnel tragedy of the early 1930’s, where hundreds of transient laborers, mostly African-American, engaged in building a tunnel, perished of acute silicosis. The new edition features a valuable contextualizing introduction by West Virginia writer Catherine Venable Moore.
Tuesday, November 27, 2018
Air Methods/Rocky Mountain Holdings v. Workers’ Compensation Division): The Wyoming Supreme Court Affirms Full State Reimbursement for Air Ambulance Services
Imagine the following. (A simplification of Air Methods/Rocky Mountain Holdings v. Workers’ Compensation Division). A worker is injured in a remote Wyoming location (that is, in almost any Wyoming location). The only way for the worker to reach a hospital in a reasonable amount of time is through use of aircraft – an “air ambulance.” The lift to the hospital is expensive, $30,000 or so. Wyoming has a workers’ compensation “schedule” (don’t worry about the details) that would only result in payment of half that amount, or less (let’s keep the math simple, too). So Wyoming grants the air ambulance companies’ claims to that reduced extent. The air ambulance companies are not pleased and, says a federal district court, the state cannot limit the amount that air ambulance companies can charge injured workers for a post-injury lift because that (regulation of air transportation) is exclusively a matter of federal law – a sphere into which Wyoming may not enter. Fine, says Wyoming, then we won’t pay anything at all to the air ambulance companies for their past-due bills, if federal law says we have to pay the whole $30K per ride. Wrong, says the same federal district court (a bit later), we order you, Wyoming, to pay the whole $30K. Hold on, says the federal circuit court on appeal, you were right, federal district court, about Wyoming not being authorized to limit air ambulance companies to state-truncated fees. But federal courts can’t go ordering states like Wyoming to pay bills in these kinds of situations. Wyoming and the air ambulance companies will have to figure out how to resolve this. OK, says air ambulance companies, we’ll just renew our claims at the Wyoming state workers’ compensation administrative level. When Wyoming administrative adjudication officials “severed” the part of the “ambulance regulation” the federal courts said was “bad,” they were left with a provision that said, with respect to air ambulance services, “if transportation by ambulance is necessary, the division [another portion of the Wyoming workers’ compensation agency] shall allow a . . . charge for the ambulance service.” The Wyoming Supreme Court upheld the administration determination on severance, which led to the conclusion that the air ambulance folks must be paid in full.
This essential narrative must play out everywhere air ambulance preemption has been upheld. I’ve already argued the federal circuit court opinions will be tough to square with ERISA preemption law upon which Airline Deregulation Act preemption was originally modeled. I won’t repeat those arguments here. Eventually, the U.S. Supreme Court will get that case. The practical question at the moment is how states will react now that they have effectively been required to write blank checks for air ambulance services. The Wyoming Attorney General attempted to argue that air ambulance carriers could be required under state law to bill injured workers directly for the difference between reasonable ground ambulance charges and air ambulance charges. Because the state had not made the argument at the administrative level, the Wyoming Supreme Court, under principles of waiver, refused to rule on it. But this tells us what will come next. States—one way or the other—may take the position that they are simply not going to cover air ambulance expense. I would argue that in those circumstances an employee must have a right to sue in tort for uncovered expense. But the larger issue is the precedent of a state refusing to cover necessary medical service when the cost becomes too high. Perhaps an insurance market will emerge to service this “gap.” Regardless, a “limited” quid pro quo is always a slippery slope. But I suppose building states in mountain ranges has slippery-slope consequences. I wonder what the Swiss do.
Michael C. Duff
Monday, November 26, 2018
Evidence for the Workers' Compensation Judge at 2018 NAWCJ Judiciary College: FSU Law Professor Ehrhardt Roars as Usual!
This writer, for the tenth year in a row, attended the National Association of Workers’ Compensation Judges “Judiciary College” in Orlando. The College was held on August 19-22, 2018, as always at the Marriott World Center. Judges from more than 20 states attended.
Attendance at the Judiciary College is invaluable for the WCJ who desires to achieve excellence in his or her profession. The knowledge to which one is exposed – and which can be shared – has, in the field, no equivalent.
An interesting aspect of the Judiciary College is hearing the approach of the various states as to the admissibility of evidence. I have attached my short essay on the 2018 evidence panel presentation here: A Note on Evidence Lectures at NAWCJ Judiciary College 2018.
Monday, November 19, 2018
In a new article, published in the Lewis & Clark Law Review, the authors assert that employers should be liable for workers’ compensation when workers, because of their sedentary duties, sustain such injuries as heart attack, stroke, and pulmonary embolism. The authors believe that jurisdictions which liberally construe the concept of accident (or injury) already maintain laws which accommodate recovery for such maladies, as long as expert evidence demonstrate medical causation. The authors emphasize that making employers no-fault liable in this fashion will incentivize them to address – via providing such things as frequent breaks and “standing desks” – the growing hazard of the more sedentary workplace. See Natalie Bucciarelli Pedersen & Lisa Eisenberg, If Sitting is the New Smoking, What does this Mean for Employers? A Look at Potential Workers’ Compensation Claims in the Sedentary Workplace, 22 Lewis & Clark Law Review 965 (2018).
The authors establish that the present-day workplace is indeed more sedentary than years ago. They assert that sedentary lifestyles show a higher incidence not only of the ailments noted above, but of cardiovascular disease, cancer, and type 2 diabetes. They argue that employers should go beyond providing wellness programs and become pro-active in encouraging on-the-job fitness regimes. In their view, this is so because science informs us that mere exercise and healthy lifestyle outside of work, that is, the aspect of life within one’s control, is no substitute for at work activity. They describe the energy category of “NEAT,” or nonexercise activity thermogenesis, to support the proposition that not having workers active at work in fact causes injury: “‘A body that’s sitting isn’t expending energy,’”, they explain, “‘so the signals that normally result in you moving – and which, in turn, burn calories – start to check out, molecularly bored with not being called to duty. Meanwhile, the processes that build up fat get busier.’ …. Thus, it seems what people do in their time not devoted to exercise is quite important to maintaining their health.”
The authors point out that the law in a few countries has recognized this phenomenon. For example, in Denmark, a worker now has the right to a standing desk, while the Australian and Canadian workplace safety agencies, with their “Stand Up Australia” and “Sit Kicker” initiatives, respectively, recommend that employers provide such desks and allow workers to interrupt their sitting every half hour. The authors suggest that the OSHA general duty requirement may at some point be interpreted to oblige employers to initiate similar programs. Some U.S. employers, meanwhile, are ahead of the curve of regulation on this point. Allowing such innovation is not, of course, wholly altruistic. The L.L. Bean clothing company, for its part, “has a policy of three stretch breaks a day for employees, believing that the increased production gains from the breaks make them well worth it.”
As for liability in workers’ compensation, the authors are well-versed with national trends, and realize that many legislatures, at the behest of business, have revolted against broad coverage of injuries and would likely do to so in the face of proposals for covering maladies sustained via sitting. And, of course, jurisdictions which demand “unusual exertion” as part of the arising out of and/or accident test could well defeat even the suggestion that a gradual sitting injury could be compensable. Yet, the authors argue, if employers are not no-fault liable for physical problems caused by sitting, the costs of the same are necessarily shifted to other systems, like private health insurance and Medicaid. This result is, in the authors’ view, unsatisfactory: “[P]lacing the burden for sedentary workplace harms on medical insurance undermines the core purpose of allocating the burden for workplace harms to employers: to treat them as a cost of production.”
The authors are correct that, in jurisdictions where the concept of injury is liberally construed, compensation systems as a matter of legal causation would potentially accommodate claims centered on a sedentary work injury. It is when medical causation is considered that the authors’ thoughtful advocacy becomes highly problematic. Most, if not all, of the ailments which they identify are not obviously caused by work, and usually implicate pre-existing conditions and/or co-morbidities. The causation battles which would inevitably result from frequent claims based on sedentary work make them non-cognizable from a practical point of view.
As for the more basic objection that one’s overall health (including the salutary effects of exercise) is largely a matter of personal responsibility, the reader will recall that the authors posit that employers not having workers active at work in fact causes injury. That may well be, but the entire proposal, which features employers obliging workers to undertake all sorts of physical efforts during the work day, seems at once invasive of privacy and paternalistic – in the extreme – as well. It is submitted that, whatever the gradual dangers of a sedentary job, one’s general health remains a matter of personal responsibility.
Saturday, October 13, 2018
The pattern has now become clear. The Uber strategy continues to be to shunt as many independent contractor suits into arbitration as possible, where it no doubt hopes they will be silently and favorably (or at any rate non-precedentially) resolved. Plaintiffs, for their part, seek Uber/Lyft driver class participants who intentionally/presciently or inadvertently opted out of arbitration. Shannon Liss-Riordan soldiers on.
An additional wrinkle has developed, however. A company—a burdened industrial competitor—claiming to have played by “the rules,” alleges injury caused by another company (Uber) not playing by the rules. The torts professor in me hears this as a tortious interference with business relations claim, and it is one that presumably will force a public ruling on the merits respecting the employee-status of Uber’s drivers, since Diva is not in (what I will call) “arbitration-privity” with Uber: no sweeping this dispute into arbitration (i.e., under the rug).
Of course, it has since “time immemorial” been the law that commercial injury resulting from a better business model is “damnum absque injuria” (I discuss with my students every year Holmes’s famous 19th century dissent in Vegelahn v. Guntner). As Holmes long ago put it, “the doctrine generally has been accepted that free competition is worth more to society than it costs.” But not illegal competition. Although I do not have access to the Diva case pleadings, I assume the arguments will unfold around California statutory and case law similar to the principles embodied in the Restatement Second of Torts §§ 762-774. (Interestingly, Diva itself has previously been the subject of wage law violation allegations, see Ghazaryan v. Diva Limousine, Ltd., 169 Cal.App.4th 1524 (2008) – clean hands problem?).
All of this has significant implications for workers’ compensation because workers’ compensation law presumes and requires the existence of covered employees. If employee categories are extinguished through reclassification in one legal regime, there is the very real possibility that the extinction will spread. The public’s broad misunderstanding of Dynamex demonstrates the popular inability to distinguish employee standards across employment law regimes. And I suspect that reality is behind this entire renewed gambit (which is not exactly stealthy to lawyers with some gray hair).
Michael C. Duff
Thursday, October 11, 2018
While we are in a relative national workers’ compensation constitutional-challenge lull (there may be other things going on in the world), it is worth mentioning an important threshold point. It is one thing to argue that a provision of a workers’ compensation statute is unconstitutional as applied to a particular workers’ compensation claimant. It is quite another thing to launch a facial challenge against such a provision. A facial challenge to a legislative act is the most difficult to mount successfully, since it is customarily said that the challenger must establish that there is no set of circumstances in which the provision could be constitutionally applied. In Castellanos v. Next Door – the 2016 Florida attorney’s fee case – the fight over the constitutional adequacy of the attorney’s fees, as applied to the case at hand, was only one aspect of the dispute. A second (and threshold) aspect concerned whether, assuming the fees were inadequate, it could be said that there was “no set of circumstances” in which the fees would be adequate (this formed, in my view, the core of the dissent's position). In that regard, the Court essentially concluded that the risk of due process deprivation occasioned by inadequate attorney’s fees exceeded the utility of applying the “no set of circumstances” principle. In the language of the Court, the Florida statute had created an irrebuttable presumption that attorney’s fees were reasonable and “the constitutionality of irrebuttable presumptions . . . is a distinct body of case law that differs from the typical ‘facial’ versus ‘as applied’ cases cited by [the] dissent.” (The Court could reach that conclusion in Florida because, for complicated state-law reasons, workers’ compensation rights have elevated constitutional importance in Florida in comparison to most other states).
The “no set of circumstances” test, first announced in U.S. v. Salerno by Justice Rehnquist, bears some resemblance to the problem of litigation standing. “A facial challenge to a statute requires the challenger to establish that no set of circumstances exists under which the statute would be valid. See U.S. v. Salerno, 481 U.S. 739, 745 (1987).” Our adversarial legal system disdains abstract challenges of laws, and almost exclusively authorizes disputes involving imminent “concrete and particularized” harms. When a litigant makes a facial challenge, she is arguably asserting claims on behalf of others who are similarly-situated. This does not sit well with many courts.
But this is a very tough-minded and, I would contend, unfair stance to take when it is as plain as the nose on your face that in many or even most instances application of the unconstitutional-as-applied statutory provision (say, use of the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment to calculate permanent partial benefits) is likely to harm a claimant. In fact, the idea sounds somewhat backwards. Maybe, once a given law has been found unconstitutional as applied, it should be presumed unconstitutional in other contexts. That might incentivize legislatures to get rid of the law, because it is apt to be successfully challenged in future litigation. If, for example, workers’ compensation benefit calculation is found to lead to an unconstitutionally-low benefit amount in a given case, why must the entire universe of workers’ compensation claimants wait until there are no instances in which a benefit calculation could be performed constitutionally before scrapping the law? (A proof of a negative that will always be very difficult to carry out).
And the truth of the matter is that in various kinds of cases, courts (often sub silentio) simply do not apply the “no set of circumstances” principle because it would be unacceptably harsh and inimical to broader legal values. Chief among the cases are those involving abortion restrictions and restrictions on speech. Typically, courts do not simply leave “bad” state laws in those areas “on the books” waiting, as it were, to inflict more unconstitutional harm. Rather, courts craft and refine overbreadth doctrine, allowing a litigant to challenge the constitutionality of a statute on the basis that the statute is overbroad: in permissibly restricting the constitutional rights of some the law impermissibly restricts other persons’ constitutionally-protected rights, which the litigant before the court will be allowed to vindicate, for purposes of efficiency and justice. Similarly, in Castellanos, the Florida Supreme Court, without being completely explicit about what it was doing, concluded that the risk of overly-broad constitutional deprivation of claimant access to attorneys outweighed the benefits of “concreteness” and justified not (in effect) severing the as-applied attorney’s fee dispute from future theoretical disputes (which may or may not have had merit). This is an overbreadth analysis, and it is of a type I would expect claimants to pursue in future workers’ compensation cases.
Although Salerno has not been cited with great frequency in recent workers’ compensation cases, that may simply evince recognition on the part of litigants of the difficulty in bringing facial challenges. I think the principle, though often Draconian in effect, is alive and well, whether cited in claimant or employer/carrier challenges. In the very interesting 2017 Colorado case, Dami Hospitality v. Industrial Claims Appeals Office, for example, a Colorado appeals court accepted a (small, Korean-owned) employer’s claim that imposition upon it of a fine of $841,200 for not carrying workers’ compensation insurance over several years violated Colorado and federal constitutional protections against governmentally-imposed “excessive fines.” Tellingly, unflinchingly citing Salerno (a federal case, after all, decided in the context of federal, criminal-context, due process law), the court rejected a facial challenge to the applicable Colorado statute and regulations explicitly authorizing the fines. Salerno is alive and well in both state and federal contexts and will have to be contended with in any future facial constitutional challenges of workers’ compensation laws.
Michael C. Duff
Wednesday, October 10, 2018
Article Treats Hoary Issue: Whether a Juror can be an Employee of the Sponsoring Government Unit for Workers' Compensation Purposes
A law student writing in the St. John's Law Review has treated the hoary issue of whether an injured jury member is to be considered an employee of the sponsoring municipality for workers' compensation purposes. Corey Baron, Twelve Injured Men: Why Injured Jurors Should Not Receive Workers' Compensation Coverage From the Courts, 91 St. John's Law Review, p.957 et seq. (Winter 2017). The author explains in articulate fashion the positions of the majority (jurors are NOT employees) and minority (jurors ARE employees). He then concludes that the New York rule should be no, and that this rule should be created not in the precedents but, instead, via statutory amendment.
For support, he argues that juror work is not hazardous – and workers' compensation was, and is, intended only for hazardous work, particularly (under the New York statute), in the realm of municipal employment.
It seems to this writer that the traditional reasons for excluding jurors -- (1) lack of a contract of employment, (2) service on a jury as a matter of civic duty -- are the more persuasive arguments for such exclusion. Most state statutes include all types of labor, hazardous or not. (We'll set aside Wyoming!)
In any event, Mr. Baron has collected all the arguments in his valuable essay.
Thursday, September 27, 2018
Months ago, I asked the question whether arbitrators would decide the scope of the gig economy. What I was getting at was that all of the sturm und drang over the misclassification (or perhaps “malclassification”) of employees might come to naught if employers took the next (obvious) logical step of requiring, as a condition of “hire,” that disputes over employee-status be submitted to arbitration, taking that threshold legal determination out of the hands of courts. Not unexpectedly, the reaction I got from some readers was that my concern was perhaps a bit too arcane. As you can imagine, I was not surprised to see the 9th Circuit’s recent opinion in O’Connor v. Uber Techs, 2018 WL 4568553 (Sep. 25, 2018), a case which simultaneously denied class certification of employment law plaintiffs (in this instance, alleged violations of the California Labor Code, which, incidentally, was the statute at issue in the Dynamex case) and forced the resulting individual claims into arbitration. (I realize the reaction to my use of the word “forced” will seem to some misplaced since the theory of arbitration is that workers agreed to the process pre-hire. As a former, bona fide working person from the actual working class, I reject such silliness out of hand. Workers usually have no idea what they are signing, and wouldn’t in the typical case have a real choice but to sign if they did not what they were signing. Of course, just as was the case in my Harvard Law School contracts class, I acknowledge, as I must, that the law is what it is).
I will not dissect O’Connor here—it is one of the several predictable outcomes of Epic Systems—but I will merely point out that the case establishes the conditions for double-deference. The first act of deference by the courts is allowing an arbitrator to decide if a worker is an independent contractor (one of the three substantive issues in O'Connor). If the worker is an independent contractor, then the questions of the underlying employment law controversies are, of course, resolved: the California Labor Code does not apply (note how this completely nullifies Dynamex). But if the worker is an employee, and as a second act of deference, the arbitrator, not a court, will decide (in the case of employee classification), (1) what employee-status law applies (perhaps the arbitrator will wrongly apply Dynamex, when Borello should control); and (2) how the employment dispute will be decided under the law selected (perhaps the arbitrator will sloppily, or even inaccurately, march through the factors from the rule chosen). The most important point in discussing arbitration of employment law disputes is that “mere errors” of law or fact are not good enough reasons for setting aside an arbitration award. The reason for this is that the scope of judicial review under the Federal Arbitration Act is incredibly narrow. An award is theoretically subject to being set aside if an arbitrator “manifestly disregards” the law, but there is a federal circuit split about what that means, and whatever it means it is clear that mere errors of law are not enough.
One of the most disturbing aspects of the emerging arbitral (not legal) world is that it will often be impossible to determine why an arbitrator found that a given individual was, or was not, found an employee (indeed, employers often insist upon confidentiality of arbitration awards). There is no readily available source of arbitration awards; and prior awards, in contrast to common law legal decisions, would in any event have no binding effect on future arbitrators. A recent story in Law 360 (paywall) adequately covers a number potential consequences flowing from O’Connor, but, to state the obvious, employers will now make more and more use of arbitration in deciding thorny legal questions. O’Connor, not Dynamex, is this year’s most important employment law decision to emerge from California.
One final point. Employers in an economy in which it is increasingly easy to classify employees as independent contractors may come to resent dusty old workers’ compensation with its insistence on actually analyzing legal questions. How long do you think it will be before pressure mounts to bring this race to the bottom to the doorstep of workers' compensation?
Michael C. Duff
Monday, September 10, 2018
New Book from the American Bar Association, Addressing Mediation, Features Workers' Compensation Chapter by Duff & Torrey
Workers’ compensation practice, as in many other areas of law, has been impacted significantly by the alternative dispute resolution (ADR) movement of the last few decades. Judge David Torrey and Professor Michael Duff (writers of this blog) explore this issue in a chapter of the new ABA book, Resolving Insurance Claim Disputes Before Trial (2018) (edited by Timothy H. Penn & Judith F. Goodman).
The chapter reviews this growth of workers’ compensation ADR, summarizes the law and practice of mediation and other ADR devices in select states, and explores practical considerations which are essential to the workers’ compensation field. The chapter concludes with a table setting forth the authorities supporting ADR in the various states.
The authors do not, in detail, discuss the fine mechanics of ADR – as to such mechanics, the authors recommend another superlative American Bar Association book, Representing Clients in Mediation (2013), by Florida mediator Spencer Punnett.
Of course, an irony exists in this discussion. In many respects, workers’ compensation itself represented the first national experiment in alternative dispute resolution. In the early twentieth century, of course, a broad national consensus existed that the formal tort litigation system was not working well for employees or employers. In order to address the perceived litigation dysfunction, stakeholders participated in development of a state-based no-fault workers’ compensation system as an alternative to tort litigation. That system is now roughly a century old in most states.
Despite the noble intentions of the founders of workers’ compensation statutes, adjudication in the system has become more complex, even though the system operates primarily in state administrative agencies meant to provide simplified processes. Because of this complexity, and because of increasing costs,* workers’ compensation writ large has joined the ADR movement, and ADR structures – most prominently, mediation – have become much more prevalent than in the past. Indeed, by 2014 the influential Chief Florida Judge, David Langham, declared, “There is a developing trend in workers’ compensation. Mediation is becoming the norm rather than the exception.” He echoed the assertions of a Washington, D.C. judge who, in 2010, authored a meticulous review of “revitalized” mediation programs in several states. These assertions ring true, as borne out by recent events. The new Tennessee administrative court system features mandatory mediation, and Connecticut and Rhode Island have just recently instituted voluntary mediation programs as well.
Of course, a properly-functioning state agency has, for a century, been said to be one which is pro-active in avoiding disputes in the first place. (The scholar Timothy Schmidle suggested this point to me at the outset of the project.) Under this advocacy, agencies monitor carrier conduct and compliance and aggressively provide information to injured workers. Were this plan to work, both litigation and ADR (which is the subject of the Torrey & Duff chapter) could be avoided.
A modern classic of this advocacy is John F. Burton, Jr. & Monroe Berkowitz, Paean to an Active Workers’ Compensation Agency, John Burton’s Workers’ Compensation Monitor, p.1 (Sept.-Oct. 1989) (stating, among other things, “The prevalence of litigation … is, in our view, a reflection of how poorly the workers’ compensation agencies are doing their job.”). Maine is a jurisdiction (among several) which maintains such a system, employing claims resolution specialists to “troubleshoot” in advance of disputes. Pennsylvania and Wisconsin, meanwhile, maintain telephone helplines to answer injured worker and employer questions. Kentucky, for its part, employs ombudsmen. Texas, meanwhile, maintains an Office of Injured Employee Counsel. See https://www.oiec.texas.gov/.
* Writers Orin Kramer and Richard Briffault, in the insurance industry tract Workers Compensation: Strengthening the Social Compact, p.67 (I.I.I. Press 1991), encouraged state administrators to reform dispute resolution via “mandatory settlement conferences, mediation, and arbitration,” in order to reduce costs.
Thursday, August 30, 2018
New Article Explores Potential Employee Status of Gig Workforce Members via Analogy to ... Exotic Dancers
In a new article, the author, a law student, tries to predict how South Carolina courts would rule when a platform intermediary worker alleges, in some employment law context (like workers’ compensation), that he or she is an employee. He undertakes this effort by examining the recent South Carolina precedents treating the employment status of exotic dancers in that state’s gentlemen’s clubs. Axton D. Crolley, Strippers, Uber Drivers, and Worker Status in South Carolina, 69 South Carolina Law Review 945 (Summer 2018).
The effort is not as cleverly provocative as it might seem; those cases, one decided under the Workers’ Compensation Act and the others under the FLSA, all involved defendant arguments that the exotic dancer plaintiffs were independent contractors and not employees. However intriguing the subject occupation, the cases are apparently the latest in the state to explore this essential dichotomy.
As for the workers’ compensation case, which animated many an industry listserv – and clucking of disapproving tongues – a couple years ago, see Lewis v. L.B. Dynasty, 770 S.E.2d 393 (S.C. 2015) (exotic dancer, severely injured by stray bullet in the midst of work, was employee, not independent contractor, of hiring club; this was so notwithstanding the fact that dancer undertook her performances at several unrelated clubs).
Of note is the fact that South Carolina law is like that of most states, as control, or the right to control, forms the basis of the critical analysis. The author, indeed, reports that it was the courts’ consecutive discernments of sufficient control on the club’s part that yielded, in all three cases, the legal conclusion that employment on the part of the dancers existed.
The author feels constrained to predict that, given this analysis, a South Carolina court would consider workers like Uber drivers to be employees, not independent contractors. The author, seemingly sympathetic to his state‘s desire to create a “business-friendly” environment, is dissatisfied with this prospect.
In his view, to limit the number of platform intermediary laborers from being deemed employees, South Carolina courts should emphasize, in the control analysis, the already existing sub-criterion of the worker’s “economic reality.” He suggests that when this constituent aspect of the South Carolina control analysis is emphasized, workers like Uber drivers are less likely to be found employees.
Wednesday, August 29, 2018
Recent Death of Senator John McCain Recalls the USS Forrestal Fire, Navy Efforts at Safety Aboard Warships
The media is full of news accounts right now of the death (Aug. 25, 2018) of Arizona Senator John McCain, a dynamic figure and a hero of the Vietnam War. McCain’s death brought to this writer’s mind the 1967 fire aboard the aircraft carrier U.S.S. Forrestal (named for the first Secretary of Defense, James Forrestal, a heroic figure in his own right), a disaster in which 134 officers and sailors died, with McCain, then a young naval aviator, barely escaping death.
An account of the fire and its aftermath can be found in the top-notch Sailors to the End (Perennial 2002), a book at once riveting and educational, by author Gregory A. Freeman. I have recommended this book in the past to colleagues in the workers' compensation and industrial safety fields.
Freeman explains how the Forrestal was, on July 29, 1967, preparing to launch attacks into North Vietnam when one of its jets accidentally fired a rocket into an aircraft occupied by McCain, its pilot. A huge fire ensued, and McCain barely escaped before a 1000-pound bomb on his plane exploded, causing a chain reaction with other bombs on nearby aircraft. The crew struggled for days to extinguish the fires but, in the end, the tragedy took the lives of 134 men.
This writer has been told by navy officer colleagues that the Forrestal fire is a subject of study by new naval officers as shipboard safety consciousness is considered.
And, indeed, according to one new internet account, the fire “was taken as a teachable moment for the Navy, demonstrating how much care has to be exercised to prevent such a catastrophe and what damage control training was required to be able to defeat the flames and explosions when everything goes wrong.” https://hotair.com/archives/2018/08/26/lt-cmdr-john-mccain-literal-fire/.
Monday, August 27, 2018
"Workforce ... or 'Taskforce'"? Jeremias Prassl, in New Book, "Humans as a Service," Explains the Law and Machinations of Gig Work via Labor Platform Intermediaries
In a new book, British Law Professor Jeremias Prassl analyzes the gig economy with a focus on the workers who actually labor in the gig workforce – and with an eye on the dignity and rights of such workers. Humans as a Service: The Promise and Perils of Work in the Gig Economy (Oxford University Press 2018).
Prassl accepts that new forms of business enterprises, like Uber, Lyft, and Taskrabbit have changed the nature of business, but he rejects the proposition that work itself needs to be examined differently. He shows that models of work in the gig economy find predecessors in the history of work relationships. As a result, caution is required in the analysis of whether the gig economy has truly changed the nature of work. Prassl, after showing that the purported innovation of platforms reflects old models of work, that enterprises like Uber retain control over its workers, and that much gig economy lingo is in fact “doublespeak” that clouds the critical analysis, argues that familiar Anglo-American precepts of employment law should apply to work in the gig economy.
Much is to be learned by the workers’ compensation specialist from Prassl’s book. He explains the nature and economics of the gig economy; how gig economy enterprises disingenuously seek to rebrand work as some innovation, the better to ward off regulators; and how laughable the idea is that most workers in the gig economy are autonomous entrepreneurs. Prassl also explains in detail that gig economy enterprises resemble the commercial labor intermediaries that have been with us since the 19th century, abetted in the present day by advanced communications.
On this point, Prassl asserts that, just as other labor intermediaries are subject to employment law, so should gig workforce enterprises. Prassl concludes his book by emphasizing that the wealth of enterprises like Uber comes at a societal cost – it is fine, for example, to create fleets of independent contractors to prowl the streets en masse 24/7, but when unemployment or injury occurs, it is the taxpayers who will likely pay the cost.
Prassl’s book is, to my knowledge, the first by an employment law scholar to comprehensively take on the issue of work in this specialized sector of the gig economy. His insights and manner of argument will be familiar to the lawyer-reader, but this book is also a manifesto at once exposing and rejecting a modern example of the unsatisfactory commodification of labor.
For me, the analysis brought context and will inform my reasoning as a judge – and as a member of the public. I read it twice to make sure I have a mastery of the text. Fortunately it is nicely written and flawlessly edited. My full review (a kind of Cliff's Notes) may be found at www.davetorrey.info.
Sunday, August 26, 2018
New Scholarship by Professor Gary Spitko on Platform Labor Intermediaries, Quality Control, and the Franchisor-Franchisee Analogy
A significant legal literature is developing addressing the gig workforce and employment law.
In a new article, an example of such scholarship, the author argues that one aspect of platform intermediary oversight of its workers, to wit, service quality standards – as enforced chiefly by consumer follow-up ratings – should not be held by courts to reflect control sufficient to establish an employer-employee relationship. Gary Spitko, A Structural-Purposive Interpretation of "Employment" in the Platform Economy, 70 Florida Law Review 409 (March 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2945130. (The author teaches at Santa Clara University School of Law.)
Quality control standards, the author argues, “promote trust between the platform consumers and provider” and “benefit the platform operator, consumer, and provider.” This critical aspect of value attendant to platform-provided services will be defeated if quality control is to equal control sufficient to establish employment. Indeed, were this to be the law, the platform “operator is more likely to forgo the right to impose such standards.”
The author says that the franchisor-franchisee relationship serves as an example of a business relationship whereby one enterprise exerts quality control standards but does not, under most analyses, become the employer of the franchisee. (Of course, in my state, Pennsylvania, our middle-level appeals court came to this conclusion in a leading workers’ compensation case where it held, specifically, that the employee of a franchisee – which failed to secure insurance – was not the "statutory employee" of the franchisor. See Salad Works, LLC v. WCAB (Gaudioso & UEGF), 124 A.3d 790 (Pa. Commw. 2015)).
The author’s footnotes are a treasure-trove of citations to recent articles (2016-2017) on the gig economy and employment law, as well as the law surrounding the franchisor-franchisee relationship.
Saturday, August 25, 2018
I have just reached agreement with the Tulsa Law Review to publish a workers' compensation article in its spring 2019 issue. Here is the abstract:
During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained tort liability while eliminating many or all affirmative defenses. The Minnesota Employees’ Compensation Commission and the National Civic Federation (NCF) catalyzed the national conversation on workers’ compensation from 1909-1911, and it was an NCF lawyer who was substantially responsible for a draft that became the first workers’ compensation statute upheld by the U.S. Supreme Court as constitutional.
Contrary to the view held by some, the foundational Supreme Court opinions constitutionally authorizing the workers’ compensation “Grand Bargain”—statutory benefits for tort damages—set no workers’ compensation benefit floor. The article parses the opinions to emphasize the point, and then goes on to explore the context of what seems a strange omission. Ultimately, the article concludes that the Court “deferred,” sub silentio, to the private bodies of experts who had been investigating, reporting, and deliberating upon the European systems. The difficulty with the Court’s approach is that little has been left to posterity explaining what scale of employee benefits the Court might have deemed inadequate or unreasonable as an exchange for employee tort damages. The pregnant silence on federal constitutional boundaries continues to impact current discussions on limits to legislative reductions of workers’ compensation benefits. This absence of an explicit benefit floor should give pause to proponents of schemes seeking to export the workers’ compensation model to other legal regimes.
A link to a reasonably polished draft but not finalized version of the piece can be found here.
Michael C. Duff
Thursday, August 16, 2018
I’m excited to announce that the Center for Computer Assisted Legal Instruction’s (CALI) eLangdell textbook division has agreed to publish the first Wyoming Workers’ Compensation treatise. This creative commons/open source concept will allow anyone to access the treatise online at no charge. A bound .pdf can be obtained very inexpensively from Lulu Publishers for those requiring a hard copy.
This will be the first state-specific title eLangdell has published. The core of my advocacy for the project was two-fold.
First, as law schools continue their collective push to become “experiential,” working harder and harder to get students as close to “practice-ready” as possible by graduation, state-specific materials will assume increasing importance. I teach my workers’ compensation course from the multistate text I personally authored. I believe my text does a pedagogically sound job of exposing beginning students to core legal principles. But I could not (and no author could) load up the textbook with the local law of any particular state without driving it to an unreasonable length, expense, and level of complexity not conducive to second and third-year law student learning. A separate, pedagogically-sensitive supplement of local law, on the other hand, gives an instructor a resource to efficiently focus on local rules, where quirks require it. I believe these kinds of back up local law texts will become the norm in the law school market.
Second, in Wyoming a substantial number of students will become involved in workers’ compensation cases early in their careers. I was disappointed at the paucity of Wyoming workers’ compensation secondary materials able to assist newer practitioners in quickly bringing together fundamental principles of Wyoming workers’ compensation law. As I did some preliminary marketing research with my assistants, I was surprised to learn of the number of states that did not possess a treatise. It is my hope that instructors in states without a treatise—both adjuncts and full-time faculty—will be persuaded by my model to explore writing and publishing similarly efficient and accessible workers’ compensation materials that will be helpful to both students and newer practitioners. CALI/eLangdell apparently believes this market may have legs.
I’m about a third of the way through the writing of the manuscript. I will keep folks apprised of the progress of the manuscript and distribute links to the finished text.
Michael C. Duff
Wednesday, August 15, 2018
I wanted to make some comments about the recent Kansas quid pro quo case, Johnson v. U.S. Food Serv. I won’t repeat the facts here—it is enough to know that a permanent impairment benefit was significantly reduced under the 6th edition of the AMA Guides as compared to what it would have been under the earlier 4th edition of the Guides; and the Kansas intermediate appellate court plurality reviewing the award found the reduction to be a bridge too far – a violation of the quid pro quo (I have written on such incremental-erosional theories here).
Attentive readers will have noted that the underlying challenge was brought under both Kansas state quid pro quo law and a 14th amendment (of the U.S. Constitution) due process theory. Although the opinion discusses the old (1917) N.Y. Central R. Co. v. White case (in general terms), the court did not find that the benefit reduction violated federal due process.
I’ve spent a good chunk of my summer reading and very closely analyzing cases like White, Mountain Timber, the Arizona Copper/Liability cases, and Krinsky (I’m currently shopping an article around to the law reviews on the deep back story of these cases – stay tuned). I’ll save you a lot of time by giving the shortest version I can of what the cases said:
“Yes, states may implement workers’ comp (or employer liability statutes) despite what some employers argue about 14th amendment deprivations of property or interference with contract. Thank goodness (!), however, we don’t have to decide the boundaries for how low employee benefits can go in the quid pro quo (before there might be a constitutional problem) because what we are looking at here obviously does not approach that floor.” Crickets.
The federal courts of the era certainly did not set up a 14th amendment, substantive due process analysis that might be used to delineate benefit floors. Nothing like substantive due process analysis/theory yet existed in the 1910s. In fact, the whole idea of applying “strict scrutiny” for legislative infringement of “fundamental” rights ( a step of modern federal substantive due process analysis) did not begin to crystallize until the U.S. Supreme Court’s opinion in United States v. Carolene Products Co. (1938). Of course, even to get that far under the modern theory, the exchanged tort rights must be deemed “important” or “fundamental” to escape deferential rational basis review, something that has only infrequently happened. See the now-overturned Smothers v. Gresham Transfer case here. (This will be the real challenge for all federally-based, and most state-based, claimant challenges in the future).
Consider that the 1914 NY workers’ compensation statute upheld in White provided no ongoing medical benefits for a work-related injury (beyond the first 60 days for first aid). The same was true for many states Download EarlyWorkmensCompensationmedbenefits (probably emulating the 1897/1906 English Act – which became moot in England because national health insurance was established in the UK in 1911, which universally thereafter covered all medical expenses of injured workers—had been the case in Germany since 1884). Kansas provided Download KansasDOLsummaryofearlystatute, total benefits of 50% of the average weekly wage (subject to a pretty low cap) or partial benefits of 50% of wage loss (subject to the same cap), and disability payments in both cases expired after eight years. These are the kinds of austere statutes the U.S. Supremes upheld, and I sometimes think that as a claimant I might prefer to argue they were wrongly decided. (citing Magna Carta).
Moving beyond the vague federal law, Kansas’s quid pro quo doctrine, uniquely among the states, directly equates substantive due process with quid pro quo, and assigns fundamental, or quasi-fundamental, status to workers’ compensation rights (and implicitly tort rights). Along with Florida, Kansas has some very favorable state constitutional language providing plaintiffs with—at least potentially—some real leverage. But (regrettably, as I see things) what happens in Kansas, probably stays in Kansas. To prevail on quid pro quo grounds most other places, claimants will likely have to avail themselves of other state-based constitutional arguments.
Michael C. Duff
Saturday, August 4, 2018
I suspect there is much concerning which Prof. Alexander Volokh and I would disagree, but I cannot heap enough praise on his excellent article, "Medical Malpractice as Workers’ Comp: Overcoming State Constitutional Barriers to Tort Reform," published in the Emory Law Journal earlier this year. I would argue that he has framed the issues surrounding state law constitutionality of tort substitutes (like workers' compensation) just right. I came across the piece as I was working on my article on workers' compensation benefit adequacy and the prehistory of the 1917 White case, about which more later. Here is a link to Prof. Volokh's article. The abstract is below:
This Article discusses the intersection of torts, administrative law, and constitutional law—a surprisingly understudied area, given its importance for modern-day tort reform efforts. In several states, based on perceptions of a medical malpractice liability and insurance crisis, reformers have sought to abolish tort liability for medical malpractice—replacing it with an administrative compensation system not based on negligence and roughly similar to workers’ compensation.
Tort reformers have, in the past, been hindered by state courts that have struck down damages caps and similar reforms on state constitutional theories. Some of the main theories have been state constitutional jury trial rights, access-to-courts rights, and due process/equal protection.
Surprisingly, it turns out that workers’-comp-like administrative systems, though more radical than damages caps and similar reforms, seem to have a better chance of being held constitutional—in part because of their similarities with workers’ comp, which also abolished certain tort actions and replaced them with a non-negligence-based administrative system, and which has been universally held to be constitutional.
This Article analyzes the constitutionality of this sort of administrative compensation system under the Florida, Alabama, and Georgia constitutions, focusing on jury trial rights, access-to-courts rights, and due process/equal protection.
Michael C. Duff
Sunday, July 15, 2018
Many readers of this blog will be familiar with the name of Phineas Gage, the victim of one of the most remarkable work accidents in history. Gage, who suffered a brain injury, is reliably mentioned in just about every neurology and neuroscience book for the lay public that one can pick up.
In September 1848, Gage was supervising workers blasting rock in preparation of a roadbed for an early Vermont railway. “Setting a blast” involved a skilled worker boring a hole deep into an outcrop of rock, adding blasting powder and a fuse, and then using a “tamping iron” to tamp sand into the hole above the powder, in effect to make a plug.
Gage became distracted during the process. According to an accurate Wikipedia summary, “As Gage was [undertaking the process] … his attention was attracted by his men working behind him. Looking over his right shoulder, and inadvertently bringing his head into line with the blast hole, Gage opened his mouth to speak; in that same instant the tamping iron sparked against the rock and (possibly because the sand had been omitted) the powder exploded. Rocketed from the hole, the tamping iron – 11⁄4 inches … in diameter, three feet seven inches … long, and weighing 131⁄4 pounds … – entered the left side of Gage's face in an upward direction, just forward of the angle of the lower jaw. Continuing upward outside the upper jaw and possibly fracturing the cheekbone, it passed behind the left eye, through the left side of the brain, and out the top of the skull through the frontal bone.”
The amazing aspect of the story of the story is that Gage not only lived, but was able to recover and live a fairly normal life for another twelve years. The loss of significant frontal lobe brain tissue altered his personality severely but did not, as many physicians at the time expected, necessarily result in his death. See https://en.wikipedia.org/wiki/Phineas_Gage. Gage did ultimately die of brain seizures caused by his injury.
Although much has been written about Gage, a modernist poem has now been published which is perhaps in its own category – it gives the point of view of the tamping iron which both caused the injury -- and which Gage so famously clung to, after the accident and for the rest of his life. The poem, The Tamping Iron Speaks, authored by Zoe Hitzig, appeared in the June 7, 2018 issue of the London Review of Books. The poem is presumably inspired by her contemplation of the iron, as it is on display, along with Gage’s skull, at a museum at Harvard Medical School (the poet is also an economics Ph.D. candidate at Harvard.)
For this brief reverie, see https://www.lrb.co.uk/v40/n11/zoe-hitzig/the-tamping-iron-speaks
Tuesday, July 10, 2018
Oxford University's Jeremias Prassl has just published what seems to be the first book by a law professor analyzing the gig economy and its relationship to international precepts of modern employment law. Jeremias Prassl, Humans as a Service: The Promise and Perils of Work in the Gig Economy (Oxford University Press 2018).
I'm on my second read-through, and one won't want to miss this item. It's beautifully written and edited, with revelations on most every page.
After describing the current landscape of the gig economy, Prassl asks, "Can we protect consumers and workers without stifling innovation?" To this query he replies, "As courts and governments around the world begin to grapple with the gig economy, Humans as a Service explores the challenges of on-demand work, and explains how we can ensure decent working conditions, protect consumers, and foster innovation. Employment law plays a central role in leveling the playing field: gigs, tasks, and rides are work -- and should be regulated as such."
Just a couple months before Prassl's book came out, I completed my own view of the situation as I see it from Pennsylvania. I have posted my two papers, presented last month at my agency's educational seminar in Hershey, at www.davetorrey.info. I have appended to each paper a bibliography for those who wish to do further reading. These papers were largely inspired by the excellent January 2018 seminar on the topic convened by the National Academy of Social Insurance, “Nonstandard Work and Social Insurance: Designing Risk Protections for a Changing Workforce.” Videos of that conference, and all the presentations, are available at https://www.nasi.org/civicrm/event/info?reset=1&id=228.