Wednesday, January 9, 2019
Empty Preemption of Workers’ Compensation: Parallels Between the Hanford Nuclear Facility and Air Ambulance Disputes
I am interested in conflicts between federal and state law in the context of workers’ compensation. And I am especially interested in a phenomenon I have called “empty preemption”: when federal law with little or no substance displaces state law possessing substance. Empty preemption was at the heart of the Oklahoma opt-out drama and is playing a role in the recent Hanford and Air Ambulance disputes – though in reality the overall Hanford controversy is far from “recent.”
The federal government’s newly-filed complaint against the State of Washington alleges that state law impermissibly discriminates “against the Federal Government and its contractors and [its] purported direct regulation of the Federal Government violate[s] the Supremacy Clause.” The law in question, Washington statute 51.32.187, states that “[f]or United States department of energy Hanford site workers, as defined in this section, who are covered under this title, there exists a prima facie presumption that the diseases and conditions listed in [another part of] this section are occupational diseases [within the meaning of Washington law].” As with all disease presumption laws (such as, for example, firefighters’ presumption laws), the effect is to make it easier to establish compensability in a very difficult area of disease causation: but for the relaxation of typical causation standards, a significant number of employees will not be compensated in circumstances where work “probably” caused incapacitating disease. But—and this is the important part—what does the federal government propose in lieu of the Washington approach to this obvious disease causation problem? For that matter, what does the Airline Deregulation Act provide substantively in exchange for stripping states of the right to regulate air ambulances? What does ERISA provide substantively in exchange for stripping states of the ability to regulate employee benefits? The answer is essentially “nothing.”
In many fields of law the purpose of federal preemption seems to have been to prevent states from lowering regulatory floors (although it is also certainly true that disuniformity has been a powerful factor as well). Traditional labor law, which I also teach, ushered in the era of especially aggressive federal preemption under Section 301 of the Labor Management Relations Act (the NLRA, as amended). But the (probably antiquated) theory of that preemption is that labor and management, as co-equal antagonists, may rely on their potent, lawful economic weapons, as determined exclusively by federal labor law, to produce acceptable/reasonable compromises – and states should not be allowed to interfere for their own narrower policy reasons.
Empty preemption, on the other hand, provides no mechanism of pushback to prevent descent beneath reasonable regulatory floors. It has the effect of removing regulatory floors altogether. (This has a great deal to do with why we cannot achieve state-level health care reform – ERISA preemption is always getting in the way because two-thirds of health care is provided through employee benefit plans). This is why I am so leery of the prospect of federal involvement in state workers’ compensation systems. Do you really want an environment in which states have no say with respect to air ambulance reimbursement or disease causation standards (to name only the most recent issues)? My ten years as a federal lawyer coupled with almost as many years as a federal administrative law professor have done nothing to raise my confidence in federal white knights. All of this is in tension, of course, with the notion that federal constitutional rights have a role to play in protecting baseline injury rights, but I nevertheless think they do.
The federal government’s suit in Hanford—which I, for one, ascribe to structural ticking timebombs rather than to naked political partisanship—is especially hard to swallow. The federal government (through excruciatingly convoluted mechanisms) cedes its sovereign immunity to allow for state workers’ compensation regulation, but apparently only on its terms. I would imagine some thought is being given in Washington legislative circles to crafting a more neutral occupational disease provision that does not expressly apply only to Hanford employees. Then we can expect arguments that the nominal general applicability of that law is a pretext and/or has the effect, if not the purpose, of directly regulating the federal government. At that juncture, of course, the bloom will be off the rose: it will become baldly apparent that the federal government simply does not want to pay.
One lesson both Washington and Wyoming legislators have no doubt learned is that it is unwise to explicitly reference in state legislation a federal law one is trying to work around. That provides some pretty low hanging fruit for federal lawyers (or other parties invoking federal policies) to pluck. It is also interesting to note that both Washington and Wyoming are monopolistic states, so the dormant federalism problems existing in workers’ compensation generally appear amplified.
Michael C. Duff
Tuesday, January 8, 2019
The major issue in judicial review of workers’ compensation and tort reform laws is the level of “scrutiny” judges are to apply when considering constitutional challenges to the statutes. Generally, a challenger has the heavy burden of demonstrating that a law is “irrational” before it will be set aside or modified by a court. There are very few laws—even laws that are fundamentally unfair, lopsided, or just plain mean—that can be affirmatively shown to be “irrational.” As it is often articulated in the equal protection context (due process analyses are very similar in most states), a state law must be upheld if it is rationally related to any legitimate interest of the state. Additionally, the legitimate interest of the state need not be one that actually motivated legislators to enact the legislation. It is enough if the interest is now advanced and that it is “conceivable.” If attorneys for the state fail to advance a conceivable interest, appellate court judges often seem willing to help them. The bottom lines is that, in the hierarchy of rights, injury rights (whether workers’ compensation or tort) are not deemed sufficiently important to warrant heightened judicial scrutiny of legislative acts impinging them.
But if state law tort rights are so unimportant, why are Article I federal bankruptcy judges without authority to hear them? In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., a 1982 case in which a company petitioning for reorganization made a claim against another company for breaches of contract and warranty—purely state law claims—the U.S. Supreme Court, in an opinion authored by Justice Brennan, held that the conferral of jurisdiction upon Article I (of the U.S. constitution) judges to hear state law claims involving traditional actions at common law such as existed at the time of the drafting of the Constitution was unconstitutional. Quoting much earlier law, the Court reaffirmed the principle that, Congress cannot “withdraw from [Art. III] judicial cognizance any matter which, from its nature, is the subject of a suit at the common law. . .” Because the judge in Northern Pipeline was, therefore, effectively not constitutionally authorized to hear such state law claims, the Court not only reversed and remanded the case, but scuttled the entire bankruptcy system, requiring convoluted and heroic measures to temporarily resuscitate and place on life support the entire system, the nature of which are beyond the scope of this post.
In Stern v. Marshall, the Court held that a counterclaim of tortious interference with a gift, although made during a bankruptcy proceeding and statutorily deemed a “core proceeding,” was a state common law claim that did not fall under certain exceptions justifying exercise of federal jurisdiction. Stern was a notorious (and highly entertaining) case involving the struggles of the late Anna Nicole Smith with the son of 90+ year old decedent, J. Howard Marshall. Smith alleged J. Howard orally promised her half of his estate, which primarily consisted of a 16% interest in Koch Industries, then worth $1.6 billion. Son disagreed. Arguments were advanced in both state probate and federal bankruptcy courts (naturally, the courts disagreed). Without wading into arcane questions about the history of the “tortious interference with a gift” cause of action, it is enough to say that Stern (2011) underscores the general “traditional common law actions” rationale of Northern Pipeline (1982). How do tort claims get caught up in bankruptcy law? By arguably becoming part of the bankruptcy estate. Their validity and valuation are often placed at issue in determining what “property” the bankruptcy trustee acquires and how the property will be distributed to unsecured creditors.
I am struck by the facility with which the Supreme Court deemed adjudication of common law (including) tort rights to implicate separation of power issues in bankruptcy law. Tort claims, after all, intersect with bankruptcy cases only occasionally. Is it really such a big deal that an Article I bankruptcy judge may occasionally adjudicate a common law tort right? The Court, in an opinion authored by Chief Justice Roberts, said “yes”:
A statute . . . may no more lawfully chip away at the authority of the Judicial Branch than it may eliminate it entirely. “Slight encroachments create new boundaries from which legions of power can seek new territory to capture.” . . . Although “[i]t may be that it is the obnoxious thing in its mildest and least repulsive form,” we cannot overlook the intrusion: “illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” . . . We cannot compromise the integrity of the system of separated powers and the role of the Judiciary in that system, even with respect to challenges that may seem innocuous at first blush . . . Article III of the Constitution provides that the judicial power of the United States may be vested only in courts whose judges enjoy the protections set forth in that Article. We conclude today that Congress, in one isolated respect, exceeded that limitation in the Bankruptcy Act of 1984.
I am not, of course, contending that workers’ compensation cases may not lawfully be heard by state administrative law judges whose decisions are ultimately subject to judicial review. The bankruptcy cases under discussion are about the limits of legislative power in restricting judicial review. The Supreme Court has said that Congress may not authorize in bankruptcy (except in some cautiously limited instances) Article I judges to hear tort law claims (ultimately deciding them if the cases are not appealed). Tort law is sufficiently important to require its adjudication by Article III federal judges holding their offices for life during good behavior and receiving for their services compensation that shall not be diminished during their tenure. The purpose of these protections is to diminish the potential for the executive and legislative branches interfering with traditional rights. How, then, may tort law (and derivatively workers’ compensation law) simultaneously be sufficiently unimportant to allow state legislatures to chip away at injury remedies policed only by under-protective rational basis review? I suppose the answer will be said to hinge on principles of federalism. But I find that answer unsatisfying. I wish that state judiciaries would uphold values concerning state common law rights (or rights flowing from these rights) with the same level of vigor.
Michael C. Duff
Saturday, January 5, 2019
Sometimes lost in Wyoming air ambulance discussion is the realization that Wyoming possesses a monopolistic workers’ compensation system. Accordingly, when an air ambulance company may charge what it likes, given distorted market conditions, that “economic rent” is extracted directly from the state treasury. Compare this situation to a state with a private insurance market in which losses are ultimately passed on to consumers (admittedly subject to some form of state regulation) rather than directly to taxpayers. It is no wonder that Wyoming (which has no state income tax) sometimes seems to become confused about what workers’ compensation benefits really are – an historical substitute for tort damages. The state “experiences” payment of workers’ compensation benefits as it would payment of discretionary “welfare” benefits.
And in Wyoming’s defense, and in the defense of other states trying to ward off the “empty preemption” of the Airline Deregulation Act (“empty” in the sense that the ADA occupies a regulatory field without providing any substantive regulatory exchange from the federal scheme), the preemption determinations being made in the Airline Deregulation Act/ERISA context (the federal courts have drawn the ERISA analogy, not I) are hardly consistent. So, in EagleMed, for example, the 10th Circuit said:
when a statute contains an express preemption clause, “we do not invoke any presumption against pre-emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.”
But compare this statement with the Supreme Court’s ERISA opinion in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., probably the lead case pushing back against the aggressive express preemption outlined in Shaw v. Delta Airlines (an ERISA case routinely invoked by the ADA preemption cases). In Travelers, Justice Souter stated, in considering preemption language identical to the ADA preemption language:
. . . we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law . . . Indeed, in cases like this one, where federal law is said to bar state action in fields of traditional state regulation . . . we have worked on the “assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”
Discerning Congressional intent is seldom a simple matter; but one can understand in this context an argument that Congress did not clearly and manifestly express a purpose in the ADA to bar state action in workers’ compensation, surely an area of traditional state regulation. It is worth repeating that the Supreme Court’s opinion in Morales v. Trans World Airlines, Inc., upon which every subsequent Supreme Court ADA preemption case has relied, was decided in 1992, while Travelers was decided in 1995. I sense that the same “pushback” analytical considerations at play in Travelers will need to be brought to bear by the Supreme Court to adequately address the scope of ADA preemption as applied to state workers’ compensation systems. Of course, a federal Congressional fix would be desirable, but you will excuse me if I doubt its emergence. In the meantime states will probably have to consider reinsurance structures to contend with the problem if they want to avoid the Wyoming gambit of attempting to reopen the quid pro quo.
Michael C. Duff
Sunday, December 30, 2018
That didn’t take long! Back on November 27, I predicted that, in light of the Wyoming Supreme Court’s opinion in the Air Methods/Rocky Mountain Holdings case, see the recap here, states would begin taking the position that they would simply not fully cover air ambulance expense. Just about a month later, Wyoming legislators have now introduced a bill that “controls all payments for air ambulance services.” I argue in this post that the bill is (a) probably preempted on its face under the Airline Deregulation Act and (b) violates the Wyoming Constitution. It also, in my opinion, represents the dangerous precedent of a state simply refusing to pay for necessary medical first aid in a way that fundamentally breaches the workers’ compensation quid pro quo. (This is not a close question).
According to the bill:
Payments under this section will be according to a schedule established by the director taking into account the miles traveled and the type of aircraft used. The director shall attempt to approximate twice what Medicare would pay for air ambulance services in determining the payment schedule.
The bill would also require an air ambulance provider to take the double-Medicare rate or leave it:
Any provider of air ambulance services may voluntarily submit a claim for payment to the division within forty‑five (45) days of providing the services. If a provider submits a claim for payment to the division, the division shall review the claim, and if the services are determined compensable, the division shall offer to pay the claim in accordance with [the limitations set out previously]. Payment shall be conditioned on the provider's timely voluntary agreement to accept this payment in full and final satisfaction for all services provided and that the provider will not bill the injured worker. Failure of any provider to accept the division's conditional offer of payment within thirty (30) days may, in the division's discretion, be considered a rejection of the payment offer . . .
If the requirements for payment of services under [the preceding] paragraph . . . are not met, the division shall make no payment to the provider of air ambulance services.
Under the bill, in the event the air ambulance carrier won’t accept the double-Medicare rate that the director of the agency “will attempt” to pay, the injured worker can apply to the administrative agency for direct payment of that same amount and “may, but is not required to, use any payment received under this section for payment of air ambulance services.” And, just so everyone knows where they stand, none of the administrative determinations as to the (non) compensability of air ambulance services would be subject to further review of any kind:
The division's decision as to whether to make payment under [the applicable provisions] shall not be subject to further administrative or judicial review, and the division's payment under [the provisions] shall fully satisfy any payment obligation of the division in regard to air ambulance services.
Finally, the air ambulance companies are expressly authorized under the bill to sue injured workers directly for the “balance” – the difference between the workers’ compensation regulatory scheduled maximum and the full charge for the air ambulance service:
The limitation in [an earlier portion of the section] requiring that fees or portions of fees for injury related services or products will not be billed to or collected from the injured employee shall not apply to fees for air ambulance services controlled by the federal Airline Deregulation Act of 1978.
Thursday, December 27, 2018
Despite protestations to the contrary, workers’ compensation has everything to do with “fault.” It is just not the cabined, microcosmic fault we think of as “tort.” If workers work, workers will be harmed and killed. We choose not to ascribe the harm caused (assuming it was unintentional) to individual employing actors. But because most harm that occurs in the workplace is macrocosmically foreseeable, ideas of fault are unavoidable. And, indeed, were it not for the growing “specter” of tort (or proliferating employer liability laws) in Europe, the British Commonwealth, and the United States, brought on by the industrial revolution at the end of the 19th and beginning of the 20th centuries, workers’ compensation as we know it would never have been implemented. So workers’ compensation very directly stands in the shoes of tort and it is this relationship that renders it more than a merely-discretionary, “welfare” benefit that may without real legal controversy be provided or taken away for any legislative justification a court might deem “rational.” (I am, of course, referring to the ideal system).
But the preceding paragraph presumes that tort itself may not be swept away for any formally rational legislative reasons—as I believe the early 20th century American workers’ compensation architects and courts assumed. After all, if the Legislature has the authority (bounded only by a sweetheart “rational basis” review by courts) to reduce or eliminate tort, why could it not substitute the 6th Edition of the AMA Guides for the 4th? What was (or is) the constitutional theory that would prevent steep reductions in workers’ compensation benefits? At the heart of the 6th Edition controversy is the question of legislative supremacy. May the legislature do anything it wishes?
As a quiet 2018 implicitly revealed, there are really only a handful of constitutional theories that may presently be deployed in an attempt to scrutinize legislative power modifying workers’ compensation statutes. (The year of the constitutional challenge, in other words, required more theories). Federal theories are generally unavailable. 14th Amendment Equal Protection and Due Process challenges almost never succeed. State constitutions offer more possibilities under state equal protection, due process, right to remedy, open courts, right to trial, and—in Oklahoma at least—“special law” theories. But state analogues of the federal Equal Protection and Due Process clauses tend to be similarly cramped: unless a fundamental right or suspect classification is involved judicial review amounts to a plaintiff attempting to show that a workers’ compensation law is both hypothetically and in fact irrational. As I have mentioned elsewhere, the Florida and Kansas constitutions contain quirks allowing for legal attacks unavailable most places in the country. But ultimately, the “quid pro quo” in the breach is a description in search of a constitutional remedy. Some of these vicissitudes derive from the hybrid nature of workers’ compensation—it is both a bane to workers who clearly would have had a meritorious tort claim at the time of establishment of the quid pro quo (beginning in about 1911) and a boon to workers who would not have had a meritorious claim at that time. For this reason, state legislatures get away with treating workers’ compensation like discretionary “welfare” benefits, which they are not.
We comfortably (and somewhat mindlessly) consign judicial review of workers’ compensation statutes to lowly rational basis review unless a legislature seriously entertains a scheme that threatens to completely cut off rights to remedies for injury (think opt-out, compulsory arbitration, occupational disease limitations periods, categorical exclusions of entire classes of claimants). At those moments of crisis, we will tiptoe in the direction of serious discussion of the permissible lower boundaries of workers’ compensation benefits. But the moment passes, and so do we.
My blue collar background and bias makes me cringe at the notion that constitutional protection of life and limb was ever meant by the founders to be so whimsical. Property is important, and so is my right arm. Politics can make strange bedfellows and I find myself more and more influenced by “Lockean proviso” objections of Second Amendment scholars. I accept that a precondition of agreement to join civil society is a guaranty of personal security. I am insecure when an intruder enters my home. And I am insecure in a world in which people doing dangerous things know in advance that they can harm me for very little cost. I’ll be writing more in upcoming months about the unenumerated rights that I think were being hinted at (if not quite identified) in the seminal 1917 workers’ compensation case, New York Cent. R. Co. v. White:
it perhaps may be doubted whether the state could abolish all rights of action, on the one hand, or all defenses, on the other, without setting up something adequate in their stead. No such question is here presented, and we intimate no opinion upon it.
Why might it be doubted? I am not sure “due process” or “equal protection” can answer the question. But something will. We continue to parse this Zen-like utterance, this question the court raised, but declined to answer. White’s doubt lives on. And regardless the putative increased safety of American workplaces, nothing endures but change – and fundamental questions surrounding the nature of the social compact.
Back to my grading . . .
Michael C. Duff
Wednesday, December 12, 2018
In a new book, the author, a journalist, explains Lyme Disease, posits that the medical establishment has improperly rejected the proposition that the malady can become chronic, and theorizes that the spread of the disease is due to climate change. See Lyme: The First Disease of Climate Change, by Mary Beth Pfeiffer. Island Press. 2018. 288 pp. See also https://www.thefirstepidemic.com/
The book, in detailing what she calls the “four myths” about Lyme Disease, supplies the attorney with a wealth of information with which to prepare for cross-examination of a physician who cleaves to the view of most experts, who insist that the condition is easy to test for, diagnose, and treat; and who reject the proposition that it can become a long-term problem for victims. The book treats occupational injury contraction only briefly, though the author does reference veterinarians, highway workers, and soldiers-in-training as individuals who are at high-risk for incurring the disease.
Like at least one other reviewer (Times Literary Supplement, 9.21.2018), this reader was unable to say that the author makes out her case that a conspiracy exists to quash research into the disease; the plausibility of such an effort seems weak, and the purported arrogance and villainy of the medical establishment seems overstated.
Still, the book is a tour de force of critical thinking about how medicine and society have responded to what appears to be an increasingly hazardous medical condition. It is valuable reading for the workers’ compensation specialist. In this regard, Lyme Disease is a challenge for both the insurance industry which underwrites risks and the lawyers who seek to obtain benefits for disease victims. Employers and insurers, in general, deny claims when causation is not obvious, and are wary of claims of chronic conditions that are suspected of having their genesis in non-work-related and/or superseding maladies. These two anxieties are at a high pitch in the Lyme Disease debate. Further, experts apparently differ over whether current testing for Lyme Disease is dependable. The author spends a whole chapter on this latter issue.
The accuracy of diagnosis, and physician cynicism over the authenticity and cause of chronic problems, are major themes of Pfeiffer’s book. Rarely does a chapter pass without accounts of physicians purportedly misdiagnosing Lyme, instead ascribing chronic problems to such things as fibromyalgia, chronic fatigue syndrome, malingering as to school attendance, and modern-day neurasthenia (the accusation is that chronic Lyme is a “middle-class malady”). These are all phenomena of workers’ compensation claims handling and litigation.
Lyme Disease is incurred by the bite of a tick which is itself infected by the bacteria Borrelia burgdorferi. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2440571/. The main culprit is the Blacklegged Tick, a species of anthropod parasite that, given our rapidly warming planet, is expanding its range northward deeper into the U.S., particularly the northeast. Pennsylvania, indeed, is a jurisdiction which is said to have an increased number of infections every year.
It is notable that the bite of the tick is not communicating to the victim venom, as with the bite of a snake or spider. Instead, the tick itself has incurred the bacteria from sucking the blood of mammals like infected deer and mice, and even of birds.
It is deer that are the most visible culprit. Suburban sprawl continues its remorseless extension into wooded areas, and fewer predators exist to cull the herds. The result is a burgeoning deer population which in turn infects the ticks who are so voracious for their blood – and which in turn infect humans. The disease can be highly debilitating, though physicians believe that antibiotics, particularly a course of doxycycline, can cure most cases. See https://www.hopkinsarthritis.org/arthritis-info/lyme-disease/lyme-disease-treatment/.
It is on this point, however, that significant dispute among physicians exist. The author charges that the condition has been “minimized, underestimated, and politicized to the point that doctors” fear treating it aggressively with antibiotics. The Centers for Disease Control and the Infectious Diseases Society of America (IDSA) in this regard, reject the proposition that the condition can be chronic, and have established restrictive, evidence-based guidelines that should be followed in identifying and treating the malady. (As to the CDC, see https://www.cdc.gov/lyme/diagnosistesting/index.html.)
Members of the International Lyme & Associated Diseases Society, on the other hand, believe that Chronic Lyme exists, and argue for long-term use of antibiotics as the remedy. They argue that Lyme should be taken much more seriously, and caution that the disease can cause injury to an individual’s central nervous system.
As foreshadowed above, the author posits that four myths surround Lyme Disease. These are (1) that Lyme is overdiagnosed; (2) that Lyme Disease Testing is reliable; (3) that Lyme Disease is hard to contract; and (4) that Lyme Disease is easy to treat. Pfeiffer seeks to debunk these myths in her book, which has the added feature of 20 pages of references.
Many resources exist about Lyme Disease, particularly online, but the workers’ compensation specialist will be well-prepared for encounters with claims in this area by a close examination of Ms. Pfeiffer’s critique.
Tuesday, December 11, 2018
On August 23-24, 2018, I attended the Texas Bar Association Workers’ Compensation CLE. I was a speaker and, as requested, gave a presentation on significant national developments in the law over the last 12 months. The venue was Austin, TX, and about 250 lawyers attended.
Texas is the only state in which employers are not obliged to take part in the workers’ compensation system. According to a recent article in Business Insurance,* in 2018, 28% of Texas employers did not carry workers’ compensation insurance; and 1.8 million workers, or 18% of the workforce, labored for these “nonsubscribers.”
Yet, a robust workers’ compensation program exists in the state, the contours of which are easily recognized by an out-of-state practitioner such as myself, and to others as well. I offer here a brief background of the Texas system and select notes that should be of interest to all: SAVE THE TICK . Texas Bar Association Work Comp CLE 2018.
* Louis Esola, Opt-out Texas Sees Dip in Employers Offering Comp Coverage, Business Insurance (Dec. 4, 2018).
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.