Wednesday, April 20, 2022
I have posted a recap of the Hanford oral argument on the SCOTUS blog.
It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers’ compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.
The state’s old law, H.B. 1723, was aimed at federal contract workers who got sick after helping clean up the Hanford nuclear site in southern Washington. It created a presumption that certain conditions suffered by those workers were “occupational diseases.” The new law, S.B. 5890, expanded the presumption beyond federal workers; the presumption now applies to “all personnel working at a radiological hazardous waste facility.” Because the merits of the case concern whether Washington can constitutionally discriminate against federal contractors by utilizing a causation standard making it easier for those employees to obtain workers’ compensation awards (with the federal government as de facto self-insurer of the awards), a problem of mootness arose. Discrimination — if that is what it was — ceased to exist as soon as the new law took effect on March 11, 2022.
Still, as discussed at length during Monday’s argument, the two statutes might not be coextensive in the benefits they offer to covered workers. As Justice Clarence Thomas observed, some statutory beneficiaries under the old law might prefer its protections. Some workers engaged in arguably less hazardous work may have been covered under that law but not under the new law. If some workers’ compensation claims remain live under the old law, then the case might not be moot after all. But Tera Heintz, arguing for Washington, assured the justices that the new law eliminates that possibility because it applies retroactively. The result, Heintz said, is that the 66 pending claims and 140 closed claims are now governed exclusively by the new law. To the extent the United States seeks declaratory and injunctive relief from the old law, no such relief could be available.
The rest of the post is here.
Michael C. Duff
Friday, April 15, 2022
I've been retained by the SCOTUS blog to do a preview, oral argument recap, and eventual opinion analysis in the case U.S. v Washington that will be aegued in the Court this coming Monday morning. The case is full of issues likely to be of interest to workers' compensation afficiandos. I'll let my post speak for itself:
Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington.
A 1936 federal law waives federal immunity from state workers’ compensation laws on federal land and projects. Congress passed the law after the Supreme Court held that states could not apply workers’ compensation statutes to federal facilities. The 1936 waiver authorizes state workers’ compensation authorities to “apply [state workers’ compensation laws] to all land and premises in the State which the Federal Government owns or holds by deed or act of cession, and to all projects, buildings, constructions, improvements, and property in the State and belonging to the Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State in which the land, premises, projects, buildings, constructions, improvements, or property are located.”
The original purpose for the extension of state workers’ compensation to federal land and projects was to ensure that non-federal workers involved in “federal work” would be covered by some form of workers’ compensation. Without this extension of coverage, the workers might be left without such protection and be forced to rely on a long, expensive civil tort case to obtain a remedy for workplace injury or disease.
Workers’ compensation laws and regulations provide workers with periodic cash benefits and payment for medical treatment for diseases and injuries suffered while working. Diseases have historically been very difficult to cover under workers’ compensation because of causation requirements. Many diseases may have both work and non-work causes. United States v. Washington implicitly contemplates such situations.
The underlying dispute in the case is whether the federal government must continue to pay the workers’ compensations claims of certain workers employed by private federal contractors. These workers were and continue to be at high risk of contracting diseases caused by workplace exposure to radioactivity and toxins on the Hanford nuclear reservation, a federally controlled tract of land located on the Columbia River in the state of Washington.
The Hanford reservation is a large, 586-square-mile facility with a storied history. Built in 1943 as part of the Manhattan Project, the site contained the first full-scale plutonium production reactor in the world. Plutonium produced at the site was used in the atomic bomb detonated over Nagasaki. The reservation, which also played a role in the Cold War, was decommissioned in 1989 and is being cleaned and remediated, in substantial part by the contract workers that are at the center of the case. It is obviously an ultra-hazardous place to work. Hanford’s cleanup is expected to take decades, and many workers are likely to become very sick during the effort. Some will die. Their workers’ compensation claims are likely to be very expensive, which raises the stakes in the case.
The federal government, reimbursing the costs of certain of its Hanford contractors, paid the claims of the workers without objection until Washington modified its workers’ compensation law in 2018 to make it easier to prove disease causation in Hanford-related claims than had been the case under prior law.
You can read the rest of the SCOTUS blog post here.
Michael C. Duff
Monday, March 7, 2022
Fresh off a presentation on the Gig economy at an ABA function, and in preparation for a lecture I will be delivering to my students this week, I am inspired to reproduce the language of a decades-old U.S. Supreme Court labor law case:
The argument assumes that there is some simple, uniform and easily applicable test which the courts have used, in dealing with such problems, to determine whether persons doing work for others fall in one class or the other [i.e., independent contractor or employee]. Unfortunately this is not true. Only by a long and tortuous history was the simple formulation worked out which has been stated most frequently as ‘the test’ for deciding whether one who hires another is responsible in tort for his wrongdoing [i.e. Restatement 2nd of Agency Section 220]. But this formula has been by no means exclusively controlling in the solution of other problems. And its simplicity has been illusory because it is more largely simplicity of formulation than of application. Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent entrepreneurial dealing. This is true within the limited field of determining vicarious liability in tort. It becomes more so when the field is expanded to include all of the possible applications of the distinction.
It is hardly necessary to stress particular instances of these variations or to emphasize that they have arisen principally, first, in the struggle of the courts to work out common-law liabilities where the legislature has given no guides for judgment, more recently also under statutes which have posed the same problem for solution in the light of the enactment's particular terms and purposes. It is enough to point out that, with reference to an identical problem, results may be contrary over a very considerable region of doubt in applying the distinction, depending upon the state or jurisdiction where the determination is made; and that within a single jurisdiction a person who, for instance, is held to be an ‘independent contractor’ for the purpose of imposing vicarious liability in tort may be an ‘employee’ for the purposes of particular legislation, such as unemployment compensation . . . In short, the assumed simplicity and uniformity, resulting from application of ‘common-law standards,’ does not exist. . . N.L.R.B. v. Hearst Publications, 322 U.S. 111 (1944).
Thursday, February 24, 2022
Here is an abstract of my most recent academic article on workers' compensation:
During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its findings in 1972 and concluded that American workers’ compensation was neither fair nor adequate. The Commission made nineteen “essential recommendations” for the system’s improvement. The federal Department of Labor shifted into high gear to monitor state compliance with the recommendations under implicit, but vague, threat of workers’ compensation federalization if progress was not achieved. In what is perhaps the most interesting part of the story, nothing changed. Today, the Department of Labor no longer monitors workers’ compensation’s attainment of any benchmarks, although some organizations monitor workers’ compensation “trends.”
Lost in discussions of workers’ compensation is any sense of a baseline. Why does this matter? Because workers’ compensation was conceived as a “Grand Bargain” or “quid pro quo,” in which workers surrendered tort rights for adequate statutory benefits. This article contends that the absence of investigation as to whether workers’ compensation benefits are too low has effectively unmoored workers’ compensation from the faintest echoes of the tort rights for which it was exchanged. The article seeks to provoke discussion of what it means, as a matter of both policy and constitutional law, for a state to dispossess injury remedies by converting workers’ compensation from a reasonable substitute remedy for tort to a pale, anti-destitution law relegated to functioning as a form of “welfare.” The article explores the phenomenon of permanent partial disability benefits paid to workers for injuries according to bizarre schedules that are not to any degree based on workers’ lost earning capacity nor on any rational criteria that anyone can identify. Permanent partial benefits—the largest component of workers’ compensation indemnity benefits—are arbitrary.
In its essence this article is about whether state legislatures have carte blanche to annihilate meaningful remedies for workers wrongfully injured in the workplace. Furthermore, to the extent that state legislatures pursue such objectives, the article presses for recognition of a Blackstonian “absolute” right to personal security. Evisceration of remedies not only makes workers poorer, but also leads to their insecurity because they work for actors with insufficient incentives to act safely. The solution to the problem is for legislatures to be more transparent about the relationship between workers’ compensation benefits and foregone negligence remedies—particularly because the original Grand Bargain was struck at a time when negligence affirmative defenses would instantly defeat tort claims, a situation that no longer obtains. The time for benefit inscrutability and ineffability is over.
A link to the full version is here. (Full pdf is now available)
Michael C. Duff
Thursday, February 3, 2022
Michael Dworkin & Bethany Saunders-Medina, COVID-19 and Workers’ Compensation: Considerations for Policymakers (White Paper, Rand Corporation, January 2022), https://www.rand.org/content/dam/rand/pubs/perspectives/PEA1300/PEA1346-1/RAND_PEA1346-1.pdf.
In this white paper, economists at the Rand Corporation broadly examine workers’ compensation and its role in the COVID pandemic.
The authors accurately depict the workers’ compensation program in general, and then, pertinently, note that many state statutes (though not that of my state, Pennsylvania) exclude “diseases of everyday life.” Yet, they correctly point out that, despite difficulties of proof of causation (which is likely why such maladies are excluded):1. Some state laws have been amended, via the adoption of causation presumptions (they vary widely), to make it easier for certain workers to make COVID claims; and 2. Even without the aid of presumptions, many claims by workers have in fact been voluntarily paid. (Others, certainly in Pennsylvania, have, in the face of insurer denials, been litigated by workers and their dependents.) The authors are persuaded by studies that indicate that African-Americans, Hispanics, and modestly-paid workers are more prominently at risk of occupational exposure to, and illness from, COVID. This is so given their employment in certain essential jobs. Such essential workers are “less likely to be able to work from home than white essential workers …[.] [Also,] essential workers who cannot work from home have lower incomes than those who can work from home.”
The authors strongly suggest that compensating COVID infections, as matter of law and practice, is advisable. Prompt no-fault payment may keep workers beneficently at home during their infections, thus protecting not only themselves but the rest of the workforce. On the risk management side, wide acknowledgment of COVID as compensable should, at least in theory, prompt employers to undertake safety efforts to avoid claims. The authors, indeed, suggest that employers which engage in systematic, proactive efforts to avoid contagion in the workplace (like providing personal protective equipment and installing improved ventilation systems) should receive premium discounts.
Of note, still, is the authors’ point that, in the face of a pandemic claims, imposing premium increases for those with a disadvantageous experience (lots of claims) does not make sense:
Part of the usual justification for [such] insurance pricing is that safe employers should not be forced to cross-subsidize the costs incurred by more-careless employers in the same industry. This makes sense for injury risks that are largely under the employer’s control. In the pandemic, however, community spread undercuts this fairness argument: Employers that do everything right still face some possibility that their workers will become sick and file claims.
As a result, the authors point out, rating bureaus like NCCI and the PCRB currently “have adopted regulations excluding COVID-19 from experience rating.” (As for the Pennsylvania Rating Bureau policy, see https://www.hendersonbrothers.com/wp-content/uploads/2020/05/Pennsylvania-Workers-Compensation-Rule-Changes-due-to-COVID.pdf.)
Of course, a jurisdiction which legally recognizes occupationally-acquired COVID-19 as compensable will likely impose increased premium costs on employers. And employers, they say, must be ready for the potential that a worker who has successfully claimed work-related COVID may, in fact, have incurred the infection somewhere else.
The authors, as if to ease the harshness of this observation, follow-up this unremarkable proposition by observing: “Economic research has shown that workers – not employers – ultimately pay for mandated benefits like workers’ compensation via reduced wages ….” (Citing Jonathan Gruber & Alan B. Krueger, The Incidence of Mandated Employer-Provided Insurance: Lessons from Workers’ Compensation Insurance, 5 Tax Policy and the Economy, pp.111-143 (1991)). Yet, they in turn further explain: “[T]hese findings reflect long-run labor market equilibrium; it is plausible that employers will have to pay higher total compensation costs in the short run until wages adjust.”
New, Accessible Cal-Berkeley Law Review Article Treats the "Fissured Workplace," Argues for More Rights for "Non-entrepreneurial" Independent Contractors
Next month, Professor Duff and I will (after a two-year delay), present, for the ABA New Orleans CLE, on the gig workforce and workers' compensation. In reviewing the absolute latest literature, one broad treatment of the issue stood out most prominently for me: Tanya Goldman & David Weil, Who’s Responsible Here? Establishing Legal Responsibility in the Fissured Workplace, 42 Berkeley Journal of Employment & Labor Law 55 (2021).
In that new article, the authors propose a re-conceptualization of employment, vis-à-vis work rights and social welfare protections, in light of what they call the “fissured workplace.” This term -- coined by co-author Dean David Weil in his enlightening 2014 book -- refers to the decline of the familiar employer-employee model of work, and the corresponding rise of non-entrepreneurial independent contractorship, franchise arrangements, and the like. The authors explain this trend, revisiting in critical aspect Weil’s 2014 account. (As for the original book, see David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (2014)).
The article, a concise and fluidly-composed tour de force, is an excellent primer (or refresher) on the thorny issue of employment and the rights and benefits associated with the same. And, notably, the authors are attentive to one key benefit enjoyed by employees but not by independent contractors: workers’ compensation.
In summary, a “common repercussion of fissured workplace business models," the authors posit, is “that they release the organizations that most directly benefit from contracted work from obligations to follow standard employment and labor laws. In other words, many businesses now treat workers like employees (specifying behaviors and then closely monitoring outcomes) but classify workers as independent contractors (engaging them at an arms-length and depriving them of the rights and benefits tied to employment).” Indeed, as in the original Weil book, the authors depict the fissured workplace as a hazard for workers, who have lost, or stand to lose, critical rights, social insurance protections, and other benefits which have, by tradition, been tied to employment.
The authors also make a simple, critical point which is sometimes forgotten: “Independent contractors are no longer primarily entrepreneurs with skills and bargaining power who do not need significant legal protections; instead, they are often the most vulnerable and underpaid workers.”
The authors’ employment-and-rights reconceptualization, analyzed for the most part on a philosophical level, advocates for rights being tied not to employment (and its century-old, but inapposite, “control” criterion) but, instead, to work.
They reject, notably, the idea that a third category of worker, lying somewhere between employee and independent contractor (the “dependent contractor”) should be created. They assert that such a designation could further erode labor standards and would be a step in the wrong direction. They state, among other things, that categorizing rideshare drivers in such a manner “would only decrease their rights, including rights to a minimum wage and access to workers’ compensation.”
Instead, they say, rights and benefits tied to work should be analyzed in three categories, which they depict as “a concentric circle framework of rights, protections, and responsibility at the workplace.”
The first, and most inner, circle, possesses the greatest breadth, and constitutes rights that all workers should possess, regardless of how, in the past, they might have been categorized. “The Inner Circle,” they explain, “includes prohibitions on discrimination and retaliation; affirmative rights to work in a safe and healthy environment; requirements that work be appropriately compensated; and freedom of association and the right to engage in acts for mutual aid and protection.”
The second, or middle, circle of rights, protections, and responsibilities “are those already linked to employment status, but with a presumption and test that enhance those protections. These include, for example, the right to overtime under the FLSA, the right to organize and be represented through collective bargaining under the NLRA, and safety net protections including access to workers’ compensation and unemployment insurance.”
The third, outer, circle “would include a set of rights, protections and responsibilities that workplace policies incentivize but that employers are not legally required to provide to legitimate independent contractors. In particular, it would include two social safety net benefits: workers’ compensation and unemployment insurance. The Outer Circle would also include access to currently non-mandatory benefits such as paid family and medical leave, retirement savings, and training and skill development funds for both employees and independent contractors.”
The authors’ advocacy is mostly compelling to this writer, though the current political scene and the weakness of worker interests do not favor this framework prevailing anytime soon. Still, the authors point out that, historically, with a number of enactments, Congress and other lawmakers have in fact shown themselves capable of enacting broad, and needed, employment protections.
Sunday, January 23, 2022
In my first reading of the opinion this morning, I conclude that all the Supreme Court said in the big National Federation of Business vs. OSHA case is that OSHA does not have the statutory authority to regulate what workers' compensation folk know as "non-employment risks." Completely missing from the opinion is any sophisticated discussion of when an elevated neutral risk becomes de facto an employment risk. Importantly, the Court did not even say that Congress lacked the Constitutional authority to regulate non-occupational risks. There was a hat-tip to the historic prerogative of states to regulate health and safety under police powers, & etc. But I do not read anything in the opinion suggesting that if a more serious disease rolled through the country Congress would be without authority to amend OSHA, or pass a new law, to compel vaccination. (I was somewhat surprised that the Fourth Amendment was not discussed -- though I may have missed it -- because the question of seizure of the body will eventually be implicated). The opinion--the "major questions" doctrine nowithstanding--avoids real constiutional scrutiny. I have very little doubt the case would have come out differently if it were litigated in the early days of the pandemic and we'd had an active rather than a passive iteration of OSHA at that time.
Do I think Congress would amend OSHA in reaction to this case in the next few years? No. I'd be surprised if Congress could amend a lunch order in the current environment. The Senate even voted to disapprove the rule. And this obvious fact will bring us back to an important question. If existing OSHA cannot lawfully regulate non-occupational harms under the very unsophisticated definition of "occupational" harm rolled out by the Court, does that completely open the door for states to simply duplicate state regulations consistent with what the Court insists is beyond OSHA's power? It would be pretty hard to argue preemption now. I guess we'll find out.
Sooner ot later we have to figure out how to cover "mixed" risks.
As we enter 2022, the 50th Anniversary of the National Commission's 1972 Report on the structural inadequacy of workers' compensation, I've had the real privilege of teaching workers' compensation at three separate law schools in the last six months (Saint Louis University, Fall of '21; Washington University of St. Louis, January Intersession of '22; University of Wyoming, Spring of '22). Each time I teach the course I emphasize the irrationality of permanent partial scheduled benefits: loss of an arm equals 200 weeks times the total benefit rate, often paid out as a lump sum benefit. Why? From whence does the 200 weeks arise? Oh, I can tell you that the first state to implement such partial scheduled benefits was New Jersey, during the second decade of the twentieth century. And I'm pretty sure it was some kind of concealed bait and switch: paying 200 weeks times two-thirds of the average weekly wage will always be cheaper than paying a substantial percentage (the original statutes provided 50%) of an employee's actual wage loss during the entire period of the disability. But no one can even tell me where "200 weeks" came from in the first place; even Arthur Larson did not know and adamantly emphasized that workers' compensation theory is predicated on the wage loss principle. I discuss this at length in a 30,000 word "cosmic" workers' compensation article, the draft of which I have just completed and which is being proofed at this very moment (I'll be submitting it to the law reviews in just over a week). From my draft:
The  Commission’s report made clear that no consensus had been reached on essential recommendations pertaining to permanent partial disability benefits. This statement does not seem entirely accurate. The report recommended the removal of schedules used to calculate permanent partial disability benefits from workers’ compensation statutes. This decision seems a concession that use of scheduled benefits did not deliver adequate benefits; an important finding given the predominance of scheduled permanent partial disability benefits in contemporary workers’ compensation systems:
Almost every workmen’s compensation statute contains a schedule which stipulates the benefits to be paid for the listed impairments. These schedules in some cases may provide a short-cut to the determination of the benefits to be paid, but that is not an adequate justification for their use. Present schedules include only a small proportion of all medically identifiable permanent impairments. Also, some schedules have not been revised for many years, despite considerable progress in the understanding of the relationship between specific injuries and extent of functional impairment.
Although the report went on to say that the AMA Guides represented a more rational basis for determining impairment, it offered no rationale for any use of physical impairment-based determinations of permanent partial disability. Seemingly to the contrary, the report soundly rejected calculation of partial benefits based solely on physical impairment:
Some statutes incorporate a schedule of benefits for a specific list of impairments, and the benefits are paid whether or not there is a disability. Moreover, the benefits are the exclusive remedy for workers with these impairments (except, in most States, for the temporary total disability benefits paid during the healing period), even if the worker’s wage loss far exceeds the scheduled benefits . . . It could be argued that the main purpose of such a schedule is to provide benefits for disability, and that impairment is used as the basis for benefits because impairment and disability are closely related. The validity of this argument is questionable because there is no exact relationship between the degree of impairment and the extent of wage loss.
 Report of the National Commission at 19-20.
 Id. at 69.
 Id. at 68.
A consistent theme of my teaching is that whatever one thinks about the original quid pro quo (and I do not have fuzzy thoughts about it -- I am a deep critic) permanent partial benefit schedules do not even pass the straight face test - they represent a straight-up confiscation even under Grand Bargain theory. I will let you know when my long paper has been placed for publication.
Michael C. Duff
Sunday, January 2, 2022
Pennsylvania Court Upholds Award to Worker who Sustained Injury due to Flu Shot (Home Depot, 12.23.2021)
The Commonwealth Court of Pennsylvania (an intermediate appellate court) held, on December 23, 2021, that the WCJ, in his grant of an original claim for a flu-shot-induced “transverse cervical myelitis,” did not rely on the purportedly incompetent opinion of claimant’s expert. That expert, the court stated, did not rely on a hypothetical without a basis in the record, nor did he rely alone, and in in critical aspect, on the hearsay report of a California-based consultant (Dr. Lawrence Steinman, of Stanford) on the issue of causation. Meanwhile, the WCJ had legitimately rejected the testimony of employer’s expert that claimant’s permanently impairing condition had nothing to do with his cervical spine pathology but was, instead, reflective of the natural progression of preexisting cervical stenosis and the effects of delayed surgical intervention for the same.
The parties, WCJ, and court all took for granted, correctly, than an injury-causing inoculation sustained at an on-site, employer-sponsored flu shot clinic constitutes an injury arising in the course of employment and (as shown by the credible expert proofs), medically-related thereto. Under the Pennsylvania Act, an "injury" is any adverse and hurtful change sustained by an individual.
Home Depot USA, Inc. v. Noorami (WCAB), No. 113 C.D. 2021, filed 12.23.2021, 2021 WL 6069521 (Unreported, Pa. Commw. 2021).
Full Text: https://www.pacourts.us/assets/opinions/Commonwealth/out/113CD21_12-23-2120211223_092146_8773119.pdf?cb=1.
Thursday, December 23, 2021
Pennsylvania Supreme Court: In Upset, Employers Now - at WCJ's Discretion - to Pay Attorney's Fees on Top of Claimant's Award
The Pennsylvania Supreme Court, in a holding at odds with custom and practice, has held that, in all cases where a claimant prevails, the employer is, at the WCJ’s discretion, responsible for claimant’s attorney’s fees. This is so even when the employer has maintained a reasonable contest. The decision was unanimous; the court discerned no ambiguity attending the key statutory language.
Under the longstanding prior practice, the claimant would bear his or her attorney expenses by paying a maximum 20% contingent fee out of his or her share. Only when the employer had a manifestly unreasonable (arbitrary and capricious) contest would the employer have to pay claimant's fees. And the Appeal Board, on intra-agency review, always granted a stay on fees (not on the worker's award) in the event of an employer appeal.
The statute and the foregoing custom and practice is 50 years old, so this 2021 interpretation by the Supreme Court has upset the apple cart in the Pennsylvania practice. Presumably, the value of claims will be enhanced and carriers will have to review premium levels. A skilled lawyer colleague of this writer refers to the case as a "game-changer." (Any comments here are strictly those of the writer.)
Lorino v. W.C.A.B. (Commonwealth of PA/Penn DOT), ___ A.3d ___, 2021 WL 6058030, filed 12.22.2021 (Pa. 2021).
The Supreme Court, in a holding at odds with custom and practice, has held that, in all cases where a claimant prevails, the employer is, at the WCJ’s discretion, responsible for claimant’s attorney’s fees. This is so even when the employer has maintained a reasonable contest. The decision was unanimous; the court discerned no ambiguity attending the key statutory language.
The holding, arguably addressing a sleeper (though long identified) issue – lo these many years – is based upon a reading of Section 440(a), 77 P.S. § 996(a). That statute provides, in pertinent part, that in “any contested case … the employe … in whose favor the matter has been finally determined in whole or in part shall be awarded … a reasonable sum for costs incurred for attorney’s fee …[.] Provided that cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer ….” (Emphasis added.)
The Supreme Court held that the term “shall” means that an award of fees is mandatory. Meanwhile, the term “may” indicates that an award of fees is not “automatic” – the determination is for the WCJ, in his or her discretion, on a case-by-case basis. The court, notably, was confident that WCJs were equipped for the task, despite employer’s anxiety that “no standards are provided.” The court, on this point, responded, “We are confident [that] judges will apply their discretion based on the humanitarian and remedial purposes which underlie the WCA.” Slip op. at p.11, note 7.
Torrey's Note 1: The court distinguished (effectively overruled) a 1991 Commonwealth Court case where the Section 440 issue was current. The court there stated, “attorney’s fees are not automatically awarded to a successful claimant under Section 440, when the employer has presented a reasonable contest.” Mason v. W.C.A.B. (Wheeling-Pitt), 600 A.2d 241 (Pa. Commw. 1991). But, of course, the Supreme Court in this new case is not holding that the award is mandatory; it is discretionary.
Torrey's Note 2: An award of fees on top of compensation where a reasonable contest has been found is foreign to our Pennsylvania sensibilities. Still, in some states this is the rule, and employers, presumably, simply insure for the same as part of their premiums. Florida is a major example; New Hampshire is another. In the latter state, the agency establishes the hourly fee to be assessed by the judge. Perhaps it was this type of regime that the legislature, fifty years ago, was contemplating.
Torrey's Note 3: The WCJ has, seemingly, been supplied with significant authority: “An abuse of discretion occurs where the WCJ's judgment is manifestly unreasonable, where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Allegis Group v. W.C.A.B. (Coughenaur), 7 A.3d 325, 327 n.3 (Pa. Commw. 2010).
Torrey's Note 4: The lack of any “brightline” as to when to exercise discretion on fees, and how much to award, will be a concern among the WCJs. Appeals over abuse of discretion may, similarly, be a headache.
Torrey's Note 5: The court’s holding is not limited to medical-only cases.
Torrey's Note 6: The crux of the court’s holding is found in two paragraphs, which I will reproduce here:
Based on the established meaning of the terms “shall” and “may,” under Section 440, when a contested case is resolved in favor of an employee, a reasonable sum for attorney’s fees shall be awarded to the claimant. Such an award is mandatory. Where, however, the employer has established a reasonable basis for the contest, an award of attorney’s fees may be excluded. In other words, the WCJ is permitted, but not required, to exclude an award of attorney’s fees. The Commonwealth Court below, in “always interpret[ing] Section 440 to mean that ‘attorney[s’] fees shall be awarded unless a reasonable basis for the employer’s contest has been established,’” … disregarded the distinction between the terms “shall” and “may,” and failed to recognize the discretion afforded to the workers’ compensation judges to award attorney’s fees even when they find a reasonable basis for an employer’s contest.
To be clear, we do not suggest that, under Section 440, a WCJ may never deny an award of attorney’s fees when the employer has established a reasonable basis for its contest. As explained above, the language of Section 440 affords the WCJ discretion to refuse an award of attorney’s fees in such circumstances. Rather, it is the Commonwealth Court’s interpretation of Section 440 as a per se disqualification of an award of claimant’s attorney’s fees where the employer has established a reasonable basis for its contest which is contrary to the plain language of the statute.
Slip op. at 10-11.
Full Text: https://www.pacourts.us/assets/opinions/Supreme/out/J-58-2021mo%20-%20104992019155173360.pdf?cb=1
Friday, December 17, 2021
Although not directly related to workers' compensation, in the aftermath of tornado-related worker deaths in Illinois and Kentucky there have been a number of news stories discussing the need for a worker protection law of some kind. But as I told David Sirota recently, there already is such a law. It is called the National Labor Relations Act.
Section 7 of the NLRA protects the rights of employees to engage in concerted protests, including concerted work stoppages, over what the employees believe to be unsafe or unhealthy working conditions. Section 502 of the NLRA, as amended by the Labor Management Relations Act (LMRA), states that cessation of labor by an employee or employees, in good faith, because of abnormally dangerous conditions for work at their place of employment is not deemed a strike. It is noteworthy that employees, not unions, possess these rights, although the statutory context of Section 502 assumes union representation. The difference between the two sections is that under Section 502, unionized employees working under a collective bargaining agreement with a "no strike provision" must have an "objectively reasonable" basis for walking off the job for safety reasons. If they have an ojectively reasonable basis, their action is not a strike, and they have therefore not violated their contractual no strike provision (which could lead to legal liability). Non-union employees concertedly walking off the job for safety reasons need only have a "good faith belief" that they are in danger. Paradoxically, union employees may have a greater chance of being second-guessed for safety-related decisions than non-union employees. The lead case for what I have just asserted is Labor Board v. Washington Aluminum Co., 370 U.S. 9 (1962). Isn't it odd how few people know that the NLRA applies to all employees (not just unionized employees) engaging in "protected concerted" activities? The breadth of Section 7 of the NLRA is enormous. We already have a worker protection law.
Employees have six months to file a charge with the National Labor Relations Board (NLRB).
I should also note in passing an interesting recurring issue in workers' compensation "Act of God" cases. Employers (and their carriers) resisting workers' compensation claims in such situations may be opening themselves to tort claims. If the weather knocks the Amazon warehouse down because it was negligently designed or built, workers' compensation exclusivity (which confers tort immunity) may be the employer's best friend. Be careful what you argue.
Michael C. Duff
Saturday, December 11, 2021
When I wrote the short piece, “Will Workers’ Compensation Work in a Mega-Risk World,” I did not have exactly in mind the overnight death of workers’ at an Amazon facility resulting from freakish (or maybe not so freakish) tornados in mind. But I had something like that in mind: I suspect that pandemics and climate change are related. The families of those workers killed will seek compensation. They will likely have access to a variety of benefits systems. And they will likely be woefully undercompensated. To the extent anything like the negligent construction of the Amazon warehouse, or negligent handling of the aftermath of the calamity begins to surface, we will hear cries that Amazon should be immune from liability as a matter of law because the event was unforeseeable (tornados in December?)—a claim you can believe if you like, but one that loses force the second time around (and I have no doubt there will be a second time around). On the workers’ compensation side of the equation, the defense argument may be that the workplace did not increase the risk of dying because of this “Act of God.” The argument would “work” in some states, but not work in others. I have written about an expanded conception of workers’ compensation causation here (forthcoming in 2022 in the San Diego Law Review).
My colleague Judge David Torrey wrote on this blog back on November 14 about the impending 50th Anniversary of the National Commission on Workmen’s Compensation that issued a report in 1972 after receiving an investigative mandate in the OSH Act of 1970. I will have a great deal to say about that report soon. Its genesis, in a nutshell, was undercompensation, and I’ll be writing in subsequent posts and articles about how the Federal government and the Council of State Governments understood, as early as 1955, and as reflected in several intragovernmental reports I’ll be analyzing, that undercompensation both shifts the costs of injury in unpredictable ways and provokes structural introspection and arguments for reform or more than reform.
It comes down to this. When confronted by the reality of injury, illness, and death emerging from foreseeable, predictable economic activity (I’m thinking specifically of “work,” but I suppose we could become more cosmic), any legal system has only a few ways it may proceed. It might compensate through something like a tort system, when obviously wrongful conduct has been perpetrated by an identifiable wrongful actor, with the bad actor entirely footing the bill for the costs of injury. That kind of tort system, for a whole variety of reasons, will lead to uneven coverage: a few big injured “winners,” and many more injured losers. But if the “wins” are big enough it might make the world safer in the long run.
Alternatively, a legal system might opt to compensate anyone who is the victim of socially useful working activity; both because it is cheaper than trying to find out who was “wrong,” and because it seems unjust for those who profit from the working activity of human beings not to contribute to the costs arising inevitability (or so we are told) from those workers being hurt or killed. This system breaks down at times because those who pay the costs of injury (employers and their carriers) predictably control the costs of payout by very tightly defining eligibility—sometimes to the point where a disinterested observer might be led to wonder if we are looking at the same system. Of course, the workers’ compensation system began as an anti-destitution rather than a make-whole structure. (The earliest systems provided 50% of the average weekly wage as a benefit with no provision for ongoing medical benefits).
We have been papering over the undercoverage of state compensation systems (whether tort or workers’ compensation) by implementing “Ken Feinberg” systems whenever duty, breach, or causation problems become difficult. That is certainly another approach a legal system might logically take: if it won’t fit in the torts or workers’ compensation bucket, get another bucket. The problem is that the interplay between these three buckets will become extremely complex over time and raise the question of whether we should not have a different, bigger bucket.
And, of course, a legal system might decide that it prefers not to compensate victims at all for reasons of “efficiency.” When that de facto insulation of employers (or others) from liability extends to harm wrongfully caused, however, we run into questions of constitutional limits. As I am developing in a paper that I have been writing over the last six months or so, I believe there is a constitutional right to personal security (one of William Blackstone’s absolute rights - see *129-134 here). A government that will not protect me from the wrongful conduct of others by affording an adequate remedy for injury encroaches on my personal security.
In the end I wonder if events like the terrible tornados in Edwardsville will propel us to a Triangle Shirt Waste Fire state of mind to redouble efforts to adequately compensate the victims of work injury and death (and their families).
Michael C. Duff
Sunday, November 14, 2021
2022: The 50th Anniversary of the Report of the National Commission on State Workmen's Compensation Laws
The year 2022 will mark the 50th Anniversary of the 1972 publication of the Report of the National Commission on State Workmen’s Compensation Laws.
That report condemned the current status of compensation laws (limited coverages, poverty-level rates) as a national disgrace and set forth, among other things, nineteen essential recommendations for a modern law. Professor John F. Burton, Jr. (chairman of the commission), features the National Commission’s Report on his website, http://workerscompresources.com/.
On this blog we will, over the ensuing months, be commenting about the National Commission and its report.
The commission, in that report, expected states to follow the nineteen essential recommendations, lest Congress consider enforcement of the same, in some manner, on the federal level.
Here, in summary, are the nineteen essential recommendations:
R.2.1(a). That coverage by workmen’s compensation laws be compulsory and (b) that no waivers be permitted.
R.2.2. That employers not be exempted from workmen’s compensation coverage because of the number of their employees.
R.2.4. A two-stage approach to the coverage of farmworkers. First, as of July 1, 1973, each agriculture employer who has an annual payroll that in total exceeds $1,000 be required to provide workmen’s compensation coverage to all of his employees. As a second stage, as of July 1, 1975, farmworkers be covered on the same basis as all other employees.
R.2.5. That as of July 1, 1975, household workers and all casual workers be covered under workmen’s compensation at least to the extent they are covered by Social Security.
R.2.6. That workmen’s compensation be mandatory for all government employees.
R.2.7. That there be no exemptions for any class of employees, such as professional athletes or employees of charitable organizations.
R.2.11. That an employee or his survivor be given the choice of filing a workmen’s compensation claim in the State where the injury or death occurred, or where the employment was principally localized, or where the employee was hired.
R.2.13. That all states provide full coverage for work-related diseases.
R.3.7. That, subject to the State’s maximum weekly benefit, temporary total disability benefits be at least 66 2/3 percent of the worker’s gross weekly wage.
R.3.8. That as of July 1, 1973, the maximum weekly benefit for temporary total disability be at least 66 2/3 percent of the State’s average weekly wage, and that as of July 1, 1975, the maximum be at least 100 percent of the State’s average weekly wage.
R.3.11. That the definition of permanent total disability used in most states be retained. However, in those few States which permit the payment of permanent total disability benefits to workers who retain substantial earning capacity, that our benefit proposals be applicable only to those cases which meet the test of permanent total disability used in most States.
R.3.12. That, subject to the State’s maximum weekly benefit, permanent total disability benefits be at least 66 2/3 percent of the worker’s gross weekly wage.
R.3.15. That as of July 1, 1973, the maximum weekly benefit for permanent total disability be at least 66 2/3 percent of the State’s average weekly wage, and that as of July 1, 1975, the maximum be at least 100 percent of the State’s average weekly wage.
R3.17. That total disability benefits be paid for the duration of the worker’s disability, or for life, without any limitations as to dollar amount of time.
R.3.21. That, subject to the State’s maximum weekly benefit, death benefits be at least 66 2/3 percent of the worker’s gross weekly wage.
R.3.23. That as of July 1, 1973, the maximum weekly death benefit be at least 66 2/3 percent of the State’s average weekly wage, and that as of July 1, 1975, the maximum be at least 100 percent of the State’s average weekly wage.
R.3.25(a). That death benefits be paid to a widow or widower for life or until remarriage, and (b) In the event of remarriage, two years’ benefits be paid in a lump sum to the widow or widower; (c) That benefits for a dependent child be continued at least until the child reaches 18, or beyond such age if actually dependent, or (d) at least until age 25 if the child is enrolled as a full-time student in any accredited educational institution.
R.4.2. There be no statutory limits of time or dollar amount for medical care or physical rehabilitation services for any work-related impairment.
R.4.4. That the right to medical and physical rehabilitation benefits not terminate by the mere passage of time.
Sunday, October 17, 2021
In Pennsylvania Case, Worker did not Commit Benefits-Disqualifying Misconduct by way of his Inability to Engage in Direct-Observation Urine Test
The Pennsylvania Commonwealth Court, affirming the WCJ and Board, has held that the claimant, after an acknowledged injury, successfully proved his ongoing TTD case, despite the employer’s argument that he had (this writer’s term) engaged in post-injury misconduct (to wit, a purported willful refusal to undertake a drug test) such that he had been fired for the same and was necessarily not available for potential modified work. The WCJ – the Board and court explained – had found as hard fact that the claimant, after having provided the required urine sample, had been unable to provide a second under-personal-observation sample, and hence he had not in fact engaged in a willful refusal to undergo drug testing.
The case is Bear Staffing v. Shawn Logan (WCAB), No. 949 C.D. 2020, filed October 15, 2021, 2021 WL 4806715 (Pa. Commw. 2021).
As noted below, the Ohio Supreme Court, in a case called Lunsford, addressed the issue of direct-observation urine screening in an August 2020 case.
Claimant, Logan, was employed – via the defendant staffing company – at a chocolate factory. He fell and struck his head, became unconscious, and was taken away to the emergency room. The next day, he reported, as requested, to WorkNet. There, he was negative for alcohol use. He also provided a urine sample, but it exceeded the temperature threshold (100 degrees), so the sample was considered invalid. Claimant was immediately asked to provide a second sample. He entered a private room with the WorkNet physician Dr. Oteri (later to testify) for personal observation of the second urinary discharge. Claimant, however, was to state that he was unable to provide a second sample (1) immediately after the first; and (2) under personal observation. He thereafter left the facility angry and objecting that the process violated his privacy rights.
The carrier issued a medical-only NCP but, at the same time, employer fired claimant. Employer, throughout, took the position that claimant, by being fired for violation of the drug-testing policy, had committed such misconduct that he could not be considered for modified work. Employer hence took the position that the immediate cause (DBT term) for claimant’s loss of earning power was not his injury but, instead, his own fault.
In the claim-petition proceedings which followed, the claimant testified and also presented his medical expert. Employer presented an IME – which had supplied an opinion that supported a cross-petition for termination. Employer, meanwhile, presented its representative to explain the firing, and the testimony of Dr. Oteri and another WorkNet employee as well.
The WCJ granted ongoing benefits; he “expressly [and repeatedly] credited Claimant’s testimony that he did not intentionally refuse to comply with Employer’s drug-testing policy, and that he was unable to comply because he could not produce a second urine sample while being observed….” Meanwhile, the judge generally credited employer’s testimony that it had drug a policy and that claimant had agreed to the same when first employed. As to the medical, he credited claimant’s physician as to disability and discredited the IME.
The Appeal Board affirmed, as has Commonwealth Court.
True, certain post-injury conduct on the part of an injured worker that results in termination can act as a superseding cause (DBT term) in the disability analysis. This is so if the firing disqualifies the worker from presumably available modified duty. See Stevens v. WCAB (Consolidation Coal Co.), 760 A.2d 369 (Pa. 2000) (“once a loss of earning capacity has been demonstrated, the claimant generally should be entitled to disability benefits; however, such benefits are not warranted where the employer can demonstrate that employment is available within the claimant’s restrictions or would have been available but for the claimant’s lack of good faith resulting in a discharge from employment.”). And see Edwards v. WCAB (Sear’s Logistics), 770 A.2d 805 (Pa. Commw. 2001) (principle applied to disqualify claimant).
The conduct, however, does not precisely equal willful misconduct as defined under the unemployment compensation law. In workers’ compensation, the leading case articulates the test of willfulness for bad faith/fault purposes as follows: “to make out ‘bad faith’ or ‘fault on the part of the discharged claimant,’ if an employer only shows that he or she ‘would if he or she could,’ then ‘bad faith is not shown and benefits should continue ….; but if an employer establishes that the claimant ‘could if he or she would, and didn’t,’ ‘bad faith is established and a claimant is not entitled to ... benefits.” Slip op. at 12-13 (citing Virgo v. WCAB (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Commw. 2005)).
Here, the court stated, “[t]he WCJ’s findings … amply support the proposition that, with respect to providing a second urine sample under observation, Claimant ‘would if he could,’ but he could not.”
In essence, the manner in which the WCJ found the facts (a point which both Board and court emphasized) as to the WorkNet encounter was the beginning and end of the critical analysis.
Note 1: The claimant argued on appeal that the employer’s proofs of supposed forfeited job availability were deficient, as no specifically-forfeited job meeting claimant’s restrictions had been evidenced. The court identified but did not decide the issue. The point is certainly of interest; with the rise of the contingent workforce and its many temp and staffing agencies, how the latter are to accommodate light-duty workers has been an issue. Presumably their clients are not interested in providing such work – the whole idea of using a staffing company is flexibility and the lean payrolls that flexibility facilitates. Staffing companies, meanwhile, have no real worksites of their own.
Note 2: In 2020, the Ohio Supreme Court addressed a similar situation involving direct-observation. Lunsford v. Sterilite of Ohio, 165 N.E.3d 245, 2020 WL 5033054 (Ohio 2020). This type of requirement is apparently widespread. See Angela Childers, Ohio Employers Have Right to Directly Observe Workers’ Urine Screens, Business Insurance (8.8.2020), https://www.businessinsurance.com/article/20200828/NEWS08/912336377/Ohio-employers-have-right-to-directly-observe-workers’-urine-screens-Lunsford-v?utm_campaign=BI20200828BreakingNewsAlert&utm_medium=email&utm_source=ActiveCampaign&utm_campaign=BI20200828BreakingNewsAlert&utm_medium=email&utm_source=ActiveCampaign.
Thursday, August 26, 2021
New Article Explains Pennsylvania Law as to Compensability of Infectious Diseases, Reports on COVID WCJ Adjudications
The Pennsylvania Workers’ Compensation Act features no statutory presumption of causation for COVID-19. Yet, infectious diseases, including COVID, were, and are, as a matter of legal causation, compensable under the law.
They are compensable under our state’s two tracks of recovery approach. The first track of recovery for infectious diseases is under the occupational disease provisions of the law. Section 301(c)(2) establishes that the term “injury” encompasses occupational diseases. One cross-references, meanwhile, Section 108 of the Act for the familiar list of those occupational diseases. They are paired with occupations in which certain diseases have been shown – or are thought to be – special hazards. The worker who suffers from the disease who has labored in the associated occupation enjoys a rebuttable presumption of causation. The presumption is found in Section 301(e) of the Act.
The second track of recovery for infectious diseases is under the injury section itself, that is, Section 301(c)(1). As detailed below, the Supreme Court, in 1987, declared that “injury” means an adverse or hurtful change. This was so held in the landmark case Pawlosky v. WCAB (Latrobe Brewing Co.).
Of course, seeking to prove medical causation is another issue. In this regard, many physicians seem shy to assign work causation in disease cases. Too many opportunities for hazardous exposures exist for physicians, even sympathetic treating doctors, to want to vouch for causation in such cases. This seems to be the case in the realm of COVID.
At the time of this writing (August 2021), two Pennsylvania workers’ compensation judge decisions exist where claims of illness from work-related COVID exposure were considered. In one, the claimant (a nurse) did not submit an expert report, and her claim failed. In the other, notably, the claimant (the widow of a correctional officer) did submit such expert medical evidence and, aided by impressive exposure evidence, prevailed in her claim.
In a new article, the writer explains the Pennsylvania statutory scheme, including how the long-existing general presumption law (Section 301(e)) works for enumerated diseases, shows that many infectious diseases have been compensated over the years, and reports briefly on the two new trial-judge-level COVID adjudications noted above.
See David B. Torrey, Infectious Diseases: Compensability, COVID-19, and Related Issues Under the Pennsylvania Workers’ Compensation Act, Pennsylvania Bar Association Workers’ Compensation Quarterly Newsletter, Volume VII, No. 147, pp.33-45 (August 2021).
Download Infectious Disease Compensability Under the Penna Work Comp Act
Wednesday, August 25, 2021
I'm writing this post in scorching Saint Louis, where I am a visiting professor at Saint Louis University School of Law for the fall semester teaching workers' compensation and torts. It is always interesting to gain exposure to another state's workers' compensation law. And this is the first time I have ever taught these two subjects in the same semester. That, too, is an interesting exercise. It has been quite a while since I blogged, and I thought I would start out by introducing my forthcoming article in the San Diego Law Review: What COVID-19 Laid Bare: Adventures in Workers’ Compensation Causation. Here is the abstract:
This essay performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees.
Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease employers seldom pay benefits (and states do not compel them to do so). This is one reality that COVID laid bare: the workers’ compensation system rigidly resists paying occupational disease claims. The essay also explores a news account from Minnesota stating that nine hundred and thirty-five of nine hundred and thirty-five workers’ compensation COVID-19-related claims from meatpacking employees had not been paid as of February 2021. There was no shortage of other stories during the pandemic of mass denial of workers’ compensation claims in the meatpacking industry, a development having a disparate impact on communities of color, where more than half of all meatpacking employees are Latinx. These unpaid claim numbers suggest that something was “wrong” with causation analyses lower down in the administrative system.
Another truth COVID laid bare is that, aside from workers’ compensation, there is no nationwide short-term disability program in the United States. This leads to the conclusion that, if workers’ compensation insists upon super-strict versions of causation to cover claims, a different method of compensating short-term disability during pandemics or other “environmental” crises may become necessary. The conclusion seems almost inescapable because public health experts like Dr. Fauci are warning that we remain at risk for “new disease emergences” for the “foreseeable future.”
You can access the entire essay here.
I'll be doing a lot of workers' compensation writing and research here at SLU Law -- which is home to the Wefel Center for Employment Law and edits the ABA Journal of Labor & Employment Law. I'm feeling very much in my element.
Michael C. Duff
In a new, practical, article – falling into the category of risk management counseling – the authors identify and explain the federal statutory and regulatory authorities which govern hospital planning for emergency conditions, with a focus on the thorny issue of how such institutions are to address injury or death sustained by volunteer workers. Workers’ compensation and tort immunity are themes throughout. See John I. Winn, Seth Chatfield & Kevin H. McGovern, Medical Volunteers During Pandemics, Disasters, and Other Emergencies: Management Best Practices, 11 Seattle Journal of Technology, Environmental & Innovation Law 282 (2021), https://digitalcommons.law.seattleu.edu/sjteil/vol11/iss2/2/.
The authors devote a special part of the article to workers’ compensation coverage considerations. The authors – no surprise – identify a variety of state laws on workers’ compensation and volunteers that injects uncertainty into the coverage analysis. In this regard, some states can be identified as providing coverage for volunteers, while others cannot be so identified.
Meanwhile, a hospital’s attempt to require a “volunteer liability release” is fraught with similar uncertainty: “Consideration [of] the use of volunteer liability releases would require a detailed analysis of the host state’s statutory and case law.”
The authors review the National Incident Management System (NIMS), a project of FEMA, which, among other things, generally establishes that, in an emergency where workers are dispatched from a foreign state into the area of the emergency, the “sending state’s workers’ compensation provisions as well as tort liability statutes generally cover deployed personnel.” These and related plans have a shortcoming, however, in the lack of provisions for utilization of private sector volunteers.
The authors do identify a law, the Uniform Emergency Volunteer Health Practitioners Act, drafted “to address the complexity of workers’ compensation for cross-border volunteer healthcare practitioners,” but only eighteen states and D.C. have adopted its provisions.
The authors strongly advocate that hospitals maintain emergency plans that address comprehensively the issue of volunteers. “Preparation for worst-case scenarios,” they admonish, “involves consideration of all reasonable measures to mitigate the risk that responding volunteers may harm others … or injure themselves….”
The article concludes with a list of 18 volunteer-intensive hard recommendations/best practices for hospitals to consider in preparing or amending their emergency plans. One of these is inclusion in the hospital’s Emergency Volunteer Handbook of an explanation of “whether (or which) volunteers will be covered by workers’ compensation or commercial insurance.”
Sunday, August 8, 2021
Skilled University of Chicago Law Student Categorizes the States as to COVID, Recommends Reforms for the Next Pandemic
In a finely-wrought and sophisticated essay, a University of Chicago law student seeks to catalog the response of state workers’ compensation laws to the challenges of the COVID pandemic. He identifies four “novel categories” of laws, placing them “along a spectrum, from most likely to cover a meaningful number of workers to least likely.” These categories, which he admits are largely based on a “textualist reading” of laws (as opposed to empirical data), are likely coverage states, selective coverage states, uncertain coverage states, and unlikely coverage states.
The author correctly characterizes the current coverage situation as being fraught with uncertainty, which is neither advantageous for workers nor economically efficient.
He recommends, in any event, that workers’ compensation laws be amended so that, during the next pandemic, frontline workers – which he calls “public-facing essential employees” – have, through “coverage” presumptions, a more certain remedy.
See Dylan Moore, Striking a New Grand Bargain: Workers’ Compensation as a Pandemic Social Safety Net, ___ University of Chicago Legal Forum ___ (2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3834807.
Thursday, July 29, 2021
New Article Invokes Workers' Compensation as a Model for a Tort Reform that Would Emphasize More Timely Compensation of Victims
In a new article, a scholar advocates for modification of tort law so that the negligence-action goal of providing compensation to tort victims can be better realized. See Christopher J. Robinette, Harmonizing Wrongs and Compensation, 80 Maryland Law Review 343 (2021), https://digitalcommons.law.umaryland.edu/mlr/vol80/iss2/3/.
The author, who teaches at Widener University Commonwealth Law School, acknowledges that other goals of tort actions are (1) the societal desire for accident prevention (that is, the safety goal); and (2) vindication and basic justice for the victims of torts. Still, the author argues, “the majority of tort victims actually are motivated simply by compensation,” to wit, the simple need for “money to pay medical bills and replace lost wages.” In the author’s view, the current structure of tort law, in virtually all areas, does not allow a quick remedy for this basic need. In this regard, the complexity of tort law and its overwhelming uncertainty lead to delay and wasteful transaction costs (attorney’s fees and expenses) which impair the compensatory goal that underlies most tort victims’ desire to sue.
The author, as suggested by his title, desires to “harmonize wrongs and compensation.” In the end, he sets forth no explicit new plan, but instead asserts that mechanisms should be established to remove compensation-oriented cases from “wrongs-based tort law….” He argues that some mechanism of this sort would benefit both the plaintiffs and defendants in those compensation-oriented cases, as well as reserve the tort system for those interested in righting wrongs.
The author finds support for such a mechanism in the workers’ compensation reforms which unfolded at the beginning of the last century. He also finds support in the reforms which surrounded the burgeoning automobile accidents (the no-fault experiments which came in their early-twentieth century wake), and the widely-publicized funds which have been established in the aftermath of mass disasters. These include the September 11th Victim Compensation Fund; the BP Oil Spill Fund/Gulf Coast Claims Facility; and the GM Ignition Switch Fund.
This new article is valuable in providing quick, accessible sketches of all of these programs, reminding the reader of their genesis – and how they have worked in practice. The author observes that workers’ compensation has been the most pervasive and successful reform of tort law to bring compensation to a limited class of injury victims. (His brief history of the emergence of our field will be of interest to all.) Compensation for victims of automobile accidents, on the other hand, has experienced a rockier reform path. Yet, many jurisdictions still have some level of auto no-fault, with a policy of (1) seeking to compensate victims on some sort of no-fault basis; and (2) preventing most cases from ever making it to a jury trial. The mass-disaster funds, meanwhile, were quickly enacted with a goal of compensation and preventing, wherever possible, the delay and waste of litigation.
Of course, most mechanisms that focus on compensation, with their streamlined remedies, restrict the ability of the parties to receive an “individualized justice ruling.”
Still, the author insists, “most of tort law is not properly designed to meet the compensatory goals of a large number of claimants. What is needed is a way to bypass tort law in cases better suited for compensation, while leaving wrongs-adjudication in place as the default…. Designing such a bypass is challenging, but worth the effort. If successful, it would incorporate compensation into wrongs-based tort law…. Additionally, the search for a way to fairly compensate those claimants who are not seeking vindication may create common ground on tort reform. A simpler, cheaper procedure with decreased pain and suffering damages would be fairer than some current reforms, like caps on damages, yet potentially generate the savings desired by business interests.”
Wednesday, July 21, 2021
Pennsylvania (and Universal?) Medicare Set-Aside Development: In Open Meds/MSA Option C&R Approach, Claimant Held to his Promise of Future Cooperation
Parties under the Pennsylvania practice may compromise and release (C&R) any liability claimed to exist under the law. The statute (enacted in 1996) was, notably, patterned after the California Act provision. Currently, the majority of (though by no means all) disputes end, as in many states, in C&R.
With the federal government's demand for MSAs in cases where the worker has Medicare rights, one creative strategy is for the claimant to tender a release for disability benefits, accept a lump sum, and agree to cooperate with the employer's continuing attempts to secure an advantageous CMS-approved MSA. The employer typically reserves the right to either continue its liability for medical indefinitely or fund the MSA. As a WCJ, I have referred to this popular strategy as the Open Meds/MSA Option.
The employer's risk in such a situation has always been that the injured worker will not, at the future date, cooperate with securing CMS approval. In a July 2, 2021 case, that situation was on display.
In this regard, the Commonwealth Court (a powerful middle-level appeals court), reversing the Appeal Board, and restoring the WCJ’s order, held that a claimant was bound by his C&R promise to cooperate in the future with facilitating a CMS-approved MSA. Lehigh Specialty Melting, Inc. v. WCAB (Bosco), 569 C.D. 2020, filed July 3, 2021, 2021 WL 2934769 (en banc, unreported, Pa. Commw. 2021). (A link to the full text is below.)
A worker, Bosco, sustained acknowledged work injuries in 2011. Three years later, he and employer, Lehigh Specialty Melting, Inc., agreed to a $155,000.00 C&R. The C&R was for disability only, with the employer reserving the right to exercise its option of either indefinitely covering medical or seeking out a CMS-approved MSA. The WCJ approved the arrangement in his 2014 order.
A number of years passed, and medical marijuana became available; claimant began to utilize the substance for his chronic work-injury condition.
In 2018, employer secured CMS approval of a $44,913.00 MSA. Claimant advised employer of the medical marijuana use, and employer re-contacted CMS to determine if claimant’s use of the same would alter the MSA amount. CMS (no surprise) advised that it would not.
In any event, claimant refused to cooperate in executing documents to finalize the MSA, which consisted of a lump sum and monthly installments.
The employer then filed a recurrent C&R approval petition. Employer requested that the WCJ oblige the claimant to be bound by the original C&R. At hearings, claimant acknowledged that he knew a delay would occur between the original C&R approval and his later obligation to follow through on the employer’s MSA option.
The WCJ granted employer relief, indicating that if claimant – after an employer effort to receive a new MSA quote from CMS – did not execute the paperwork, employer was to disburse to him the value of the MSA. The WCJ had noted and found credible that claimant understood how the open medicals/MSA option was to work and that years might pass before the employer exercised the option.
The Appeal Board reversed, holding that, given the succeeding legalization of medical marijuana, no original “meeting of the minds” as to employer’s responsibility for medical necessarily could have occurred at the time of the 2014 C&R.
The court, however, restored the WCJ’s ruling and ratified the remedy noted above. The Board had committed error in its “no meeting of the minds” analysis. To the contrary, the bases for setting aside a C&R – or here, disregarding its provisions – are fraud, coercion, or mistake. And in this case, claimant had not shown any of these factors. In this regard, the court noted in particular that the intervening legalization of medical marijuana (a “change in the law”) did not reflect “mistake” sufficient to change the terms of the C&R.
In making its ruling, the court agreed with employer’s assertion that the Board’s standard “would open a Pandora’s box that could potentially unravel countless C&Rs based on the contention that there was no ‘meeting of the minds’ at the time the agreements were approved.”
Postscript: In the original C&R, the parties had marked the “no” box where the agency form inquires whether medical was being settled. The court was unmoved by claimant’s argument that this fact changed the critical analysis. In this regard, the original C&R was (as with all C&Rs) approved after an on-the-record hearing, and it was obvious that the parties were indeed then seeking to settle medical.