Wednesday, August 24, 2016
In any writing it is perhaps best to put any actual or perceived biases out front. Honesty is always the best policy. When I am not teaching Workers’ Compensation or Pre-Trial Advocacy at the Southern Illinois University School of Law, I run an Illinois Workers’ Compensation and Personal Injury firm solely dedicated to helping the injured. With that being said, I truly do believe that both sides of the Workers’ Compensation fence have a symbiotic rather than parasitic relationship. Some of my best friends are defense attorneys and one of my partners at my firm came from a Workers’ Compensation defense firm. I have also had the high honor of teaching many of these said defense attorneys' children at the law school.
Comp is at its essence a grand bargain between employees and employers. Employees in most systems in one form or another do not have the burden of proving the prima facie case of negligence and in return employers do not have to face juries who can award pain and suffering damages. However the grand bargain has taken many twists and turns along the way to where we find ourselves today. One such twist is how jurisdictions handle repetitive trauma cases, i.e. cases in which the employee alleges their current state of ill-being is both work related and was caused by trauma of some form over an extended period time rather than falling off of a ladder.
In Illinois, these repetitive trauma injuries are supposedly just as compensable as getting hit by a truck. Of course, the injured continues to possess both the burden of proof and persuasion in the case. However, recently Illinois has gone through its normative five year reform frenzy. As a part of that reform, the Act in Illinois specifically limited the amount of compensation owed for carpal tunnel cases to 15% loss of use of the hand. Prior to this legislative carve out, we were routinely settling these cases for 17.5% loss to 20% loss of a hand. The result of the carve out has been to decrease the amount of compensation we see in these cases to between 10% and 12.5% loss of use of the hand. Why? Because with regards to repetitive trauma the bargain is shrinking. Have the injured received any quid pro quo for the shrinking bargain? No.
Why is this? During the reform frenzy which culminated in the 2011 changes to the Act, I had the privilege to testify in front of an Illinois House of Representatives bi-partisan commission on the subject of the pending reform. I, and many others during these hearings, heard the same philosophy whispered in a mantra like manner, “We are losing businesses and therefore jobs to our sister states because Workers’ Compensation rates are so high in our state.” Allegedly something had to be done. It was, and the bargain began to shrink.
The stated, and I believe for the most part sincere forecast, was that if we could lower the number and value of claims then rates would go down and businesses would therefore stay, or even new businesses would choose to operate out of Illinois. This hasn’t happened. If we are to continue to believe in a fair bargain legislatures must look to balance the bargain. Certainly continuing to gravitate towards a system of law that discounts any accident that isn’t traumatic endangers the bargain the founders of the Workers’ Compensation movement had in mind. Perhaps, however, legislatures across the county will continue to restrict repetitive claims, but in doing so, surely they must be mindful of the need to modify the other side of the equation as well.
From an instructional standpoint, Professors and adjuncts should explore this idea with their students. I do. It is fascinating to watch them and listen to their generally unbiased thoughts on the issue. In most of my classes throughout the years, they have on their own, without much research or guidance, come to make the same arguments mentioned previously in this post. Perhaps there is something to the idea of a set of views we are all inherently imbued with after all…. Until next time, thank you for reading our blog.
JASON R. CARAWAY
Friday, August 19, 2016
I inherited my penchant for editing. (My mother once stood up in church to correct her pastor, who began his sermon with "Irregardless. . ." ) I chair the CWCL - College of Workers' Compensation Lawyers - Student Writing Contest Committee. Indiana Professor Terry Coriden and I (the Committee) review student submissions and determine winners. We have done so for several years. We have seen the good, the bad, and the downright ugly. Some entries, such as this year's brilliant co-winners, are a genuine joy to read.
Just look at the impressive winning titles:
Holding a Square Peg and Choosing Between 2 Round Holes: the Challenge Workers' Compensation Law Faces with Uber and the Sharing Economy, ( by Atty Brad Smith, 2015 Temple Law grad now practicing in Philadelphia), and
Haters Gonna Hate, But Will Workers' Compensation Pay? An Analysis of Whether Injuries from Hate Crimes are Compensable under Workers' Compensation Laws, (by Kyle Black, U Pitt Law, 2015)
These submissions, persuasively argued and substantially footnoted, elevate the practice of workers' compensation and enhance discussion of emerging issues. Such cutting edge ideas, eloquently proposed, challenge the way we approach workers' compensation claims and claimants.
Sadly, all entries do not approach this level of excellence. Some essays prompt an almost simultaneous response from me and Terry (after the tenth interposed "there" for "their" or "effect" for "affect") -"How did this person graduate high school, much less gain admission to a law school?" These less than stellar entries are not unique. I see similar faux pas each semester in my law school class and in submissions as I edit the Workers' First Watch for the Work Injury Law and Advocacy Group. Most entries occupy the space between the brilliant and the bad.
The student writing contest serves one lofty purpose of the CWCL: to encourage scholarship on workers' compensation issues. I am honored to chair the committee and encourage future submissions. The Committee offers its congratulations to the two worthy winners this year. If you know of students who might be interested in competing in this year's competition, please check out this flyer (and feel free to distribute it widely) Download 2016 CWCL Student Writing Contest Flyer (00273082xB8995)
For more on the College of Workers' Compensation Lawyers, click here.
Thursday, August 18, 2016
In the inaugural blog for "Workers' Compensation Law Profs Blog," Michael Duff described the Great Bargain that is workers' compensation. Injured workers cannot sue their employers for work-related injuries in exchange for a no fault system in which the injured worker does not have to prove negligence and the employer provides sure and timely medical and indemnity benefits defined by statute. In South Carolina, we call this the "exclusivity doctrine," the only remedy an injured worker has for injuries by accident arising out of and in the course of employment is workers' compensation. The employer who comes within the Act is insulated from civil suit.
Exceptions to the exclusivity doctrine exist but are narrowly construed. In most states, an intentional act by the employer to injure the employee is not protected by the Act. See, Lasky, Attempts at Circumvention: Exclusive Remedy Doctrine, 48 No. 3 DRI For Def. 15 (2006). But for most states, the employer's negligence, regardless of how gross, does not defeat the exclusive remedy protection of the Act. (A notable exception is the North Carolina case of Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), in which the Supreme Court allowed a civil suit to proceed in a ditch cave-in death case. The deceased's family asserted the employer knew the manner he was proceeding in trenching operations was substantially certain to cause injury or death to the employee. Plaintiffs were allowed to collect worker's compensation death benefits and pursue civil damages.) Still, there are efforts to defeat the doctrine, especially in cases where the injuries and financial loses are extreme and the workers' compensation benefits are deemed inadequate.
Recently, the Estate of Marvis Lavar Myers, et. al. vs. the City of Columbia was filed in U.S. District Court for the District of South Carolina. Myers worked at the City's Department of Public Utilities as a construction worker for City's Wastewater Treatment Division. Myers was killed while working on a sewer line when the trench he was in collapsed. The City failed to use a trench box and was subsequently fined by OSHA. Myers' wife and two minor children filed a workers' compensation claim and are awaiting final approval of disbursement.
The federal suit alleges violations of 42 U.S.C. §1983 against the City. Plaintiffs assert the City maintains a policy and practice that required Myers, and continues to require his co-workers, to work in unboxed trenches five to fifteen times per month. Employees who raise safety concerns are punished, according to the suit. The City moved to dismiss the suit on the theory workers' compensation was Myers' exclusive remedy. The court denied the motion.
The court recognized its duty to read the complaint in a light most favorable to the plaintiff and reasoned that, to prevail on their claim under 42 U.S.C. §1983, plaintiffs have to demonstrate that City deprived Myers of rights secured by the United States Constitution. Plaintiff's complaint alleges "overreaching City policies and procedures that…'arbitrarily and shockingly violated' Decedent's constitutional rights to life, liberty and bodily integrity" thereby alleging City violated Myers rights guaranteed under the Fifth and Fourteenth Amendments to the Constitution. Looking at the facts in a light most favorable to the plaintiffs, the court concluded the City's conduct appears "to rise above negligent conduct and state a substantive due process claim."
This now raises the question: Does violating a worker's constitutional rights equate to an employers' intentional act to injure the employee? And if that is true, should the worker be able to collect workers' compensation benefits before filing the suit? If the employer is immune from suit except intentional acts, should the injured worker be able to collect twice for the same injury? Or is a violation of constitutional rights a completely separate cause of action that bears no relationship to the injury the injured worker sustained? If so, should the suit have been brought before the accident occurred? Is the timing of the suit, after the accident, just another attempt to undermine one of the pillars of the Grand Bargain we know as workers' compensation?
Tuesday, August 16, 2016
“Workmen’s compensation,” it has been written, “is in many ways the poor stepchild of law school education.” According to Professor Richard Epstein, who made this statement in 1977: “The massive volume of cases decided under the workmen’s compensation statutes alone gives us sufficient reason to subject them to detailed analysis and scrutiny. Yet the entire topic is all too often treated as a mysterious and arcane branch of the law that refuses to yield any of its mysteries in an academic setting….” Charles O. Gregory, Harry Kalven, & Richard A. Epstein, Cases and Materials on Torts, p. 803 (3rd ed. 1977). This was a shame, Epstein declared, because workers’ compensation’s no-fault model could serve as a basis for reform of tort liability in the motor vehicle accident and consumer product usage contexts. “Today,” he declared, “the study of workmen’s compensation has a new urgency ….”
Epstein’s comments were foreshadowed long before by the renowned Harvard-trained Massachusetts lawyer, Samuel Horovitz. In his 1949 article, The Need for Teaching the Rights of Injured Workmen – 2,000,000 Potential Clients, Horovitz argued that workers’ compensation, as a critical field of the law, should be taught in law schools. Very few law schools, he observed, then offered such a course. Horovitz, who was the founder of the National Association of Compensation Claimants’ Attorneys (later to become ATLA), explained that he had just finished up a three-month tour around the country (in a car pulling a trailer), speaking about workers’ compensation and his new organization. He addressed state bar associations, legislative committees, and law schools – encouraging deans to offer courses in the field. See Samuel B. Horovitz, The Need for Teaching the Rights of Injured Workmen – 2,000,000 Potential Clients, 3 N.A.C.C.A. L.J. 11 (1949).
Horovitz also set forth a special admonition: the workers’ compensation lawyer should know not merely the law of his own state, but those of others as well. In this way the lawyer could do two things: “(1) where there are no cases in his own state he can point out broad and liberal cases in other states, (2) where the amount of compensation given is inadequate in his own state, a knowledge that other states give larger amounts and of the methods by which these amounts are given, is highly essential, if he is to convince his own legislature to increase the benefits.”
In the present day, many law schools provide workers’ compensation courses and Professor Michael Duff, who founded this blog, is the leading modern exponent of this effort. I have used his new law school text for three consecutive years at Pitt Law School. See Michael C. Duff, Workers’ Compensation Law: A Context and Practice Casebook (Carolina Academic Press 2013).
Just before Professor Duff published his text (2013), Terry Coriden, Tom Domer, and I collaborated (with others), in March 2012, on a presentation to the ABA work comp lawyers on teaching the field. Our seminar paper is slightly dated, but you can read the complete article at www.davetorrey.info.
Thursday, August 11, 2016
This summer, I’ve been doing a lot of work on the subject of workers’ compensation “opt-out.” Over the last couple of years or so this has been a hot topic in workers’ compensation circles, though it has cooled off recently while the Oklahoma Supreme Court deliberates in a pending case, Vasquez v. Dillard’s, Inc., implicating some of the underlying issues in this area. Essentially, opt-out is about certain folks figuring out that if you combine “regular” workers’ compensation benefits with non-workers’ compensation benefits you arguably wind up with a multi-benefit “employee welfare benefit” plan governed by ERISA (the Employee Retirement Income Security Act of 1974), a federal statute. Why does that matter? Because states have limited or no control over the substance of benefits provided by ERISA-governed “employee welfare benefit plans.” Employee welfare benefit plans need do no more than deliver what they unilaterally promise to deliver. That promise has no connection to any state-imposed benefit floor. Why would a state cede control of statutory workers’ compensation benefits? As they might say in the French Foreign Legion, “that’s a long story.”
This is not the first time the law has encountered the idea of substituting ERISA-governed plans for state-mandated employment benefits. Back in the 1990s, for example, some employers resisted New York’s efforts to require the payment of state-mandated pregnancy benefits by arguing that New York could not interfere with their ERISA-governed “multi-benefit” plans, which did not cover pregnancy benefits. The Supreme Court said to the employers, in Shaw v. Delta Airlines, “well, yes employers, you can have multi-benefit ERISA plans, but states can force you to comply with the substance of certain mandatory state benefit laws that ERISA carves out from coverage (workers’ compensation, unemployment compensation, and disability insurance).”
The matter has been complicated in recent years. Oklahoma has enacted (and other states have considered enacting) a law facilitating an ERISA multi-benefit approach without requiring that multi-benefit plans comply with traditional workers’ compensation law (significantly changing the Shaw v. Delta Airlines scenario). This state-sanctioned “opt-out” from traditional workers’ compensation law is rife with complexity. Back in 1974, Congress wanted very strict legal uniformity with respect to ERISA plans (See Fort Halifax Packing Co. vs. Coyne) because prior abuses nationwide had prevented employees from receiving benefits they thought they had earned.
Tuesday, August 9, 2016
A distinguished Cal-Berkeley researcher calls for the elimination of workers' compensation for most workers. But his plan isn't at all ready for roll-out.
In college I took a course that treated economics from a libertarian point of view -- a class which exposed me to all sorts of counterintuitive ideas. The most memorable was that the interests and wants of workers and the labor movement should be discounted in favor of those of entrepreneurs and capitalists. After all, were it not for the initiatives of the latter groups, workers would not be provided with good jobs and lifestyles but would, instead, be engaged in primitive labor, dressed in animal skins and tilling the soil with sharp sticks.
And now: a similarly provocative thesis, addressing labor, is found in the pages of the new IAIABC magazine Perspectives. Its counterintuitive logic goes like this: (1) accident statistics show that work is actually safer than home and play, (2) thus, work actually protects us from injuries and disease; and (3) employers should not, at least for most jobs in the present day, be obliged to insure their employees via workers’ compensation.
The author, Frank Neuhauser, is a distinguished member of the research faculty of University of California-Berkeley and a renowned workers’ compensation expert. He cites statistics showing that the incurrence of workplace injuries has fallen dramatically over the decades, and particularly over the last twenty years. Injuries suffered outside of work, on the other hand, have not decreased. In the end, time-adjusted statistics show that a person is 10.3 times more likely to be fatally injured on one’s own time than at work.
Neuhauser further asserts that, as a result, workers’ compensation is unnecessary for the vast majority of workers, to wit, those who labor in occupations that other statistics show are not hazardous. In his view, workers’ compensation is a “relic of the early industrial age ….”
This hardly means that Neuhauser is in favor of allowing employers to opt out, as in Texas or under the cunning new Oklahoma machination. To the contrary, he explicitly states that he is against opt-out. Instead, he would have those who do not labor in hazardous industry be covered by their health insurance, as now mandated by the Affordable Care Act, and for wage-loss to be satisfied with short-term and long-term disability plans.
The thesis is thought-provoking, the vision humane (insurance for everybody!), but, in the present day, it’s a proposition for academic use only.
Continue reading at www.davetorrey.info, where you'll find my complete response.
An injured worker’s receipt of Social Security Disability (SSD) benefits can produce an offset from workers’ compensation (WC) payments. A workers’ compensation recipient who is also collecting SSD cannot receive, in combined benefits, more than 80% of his average current earnings (ACE). Wisconsin is one of nine “Reverse Offset” states whereby any offsets are taken on WC benefits rather than Social Security benefits. Under Wisconsin statutes, for each dollar that the total monthly workers’ compensation benefits (excluding attorney fees and costs) plus the monthly benefits payable under the Social Security Act for disability exceed 80% of the employee’s ACE as determined by Social Security, the workers’ compensation benefits shall be reduced by the same amount, so that the total benefits payable do not exceed 80% of the employee’s ACE.
In most states, under Social Security law, a recipient’s SSD benefits are reduced when the total of the recipient’s disability payments plus workers’ compensation (WC) benefits exceed 80% of the ACE. The reduction is taken against the recipient’s monthly SSD, not WC. In Wisconsin, however, just the reverse is true and the workers’ compensation insurance carrier’s liability is reduced.
In Wisconsin, the maximum age for ending the Social Security offset has been 65 since the offset went into effect in 1980. However, since Congress amended the Social Security Act in 2013 by the incredibly-titled “Achieving a Better Life Experience (ABLE) Act,” the amendment extends the workers’ compensation Social Security offset to the full retirement age (essentially age 66 for those born between 1943 and 1954, and age 67 for those born after 1960). The revised law provides that the offset continues until an employee attains full retirement age. The way this works out practically, for example, for a worker with a $600 monthly Average Weekly Wage ($400 in Temporary Total Disability), or about $30,000 in average current earnings (ACE), 80% ACE would be $24,000 per year or $2,000 per month. If SSD pays $900 per month, WC would be limited to the 80% ACE figure ($2,000) so the WC carrier liability would be limited to $1,100 instead of its $1,720 ($400 TTD rate x 4.3) monthly liability absent the SSD.
The purposes of the two systems—SSD and WC—differ substantially. WC applies the principle that, irrespective of fault, projected costs of injuries can be secured in advance through insurance. Eligibility for SSD benefits requires an employee to build equity in the program through earning income credits. The employer has paid a premium for the worker’s injury not based on any offset, and the employee has paid into Social Security for the entirety of his work life. The rationale for the “offset” is loosely based on a “double dipping” assessment, much the same as the “Moral Hazard” rationale for not providing a full pay check to workers who are injured (in order to reduce the incentive to remain off work).
Wisconsin experimented historically with the percentage of Permanent Partial Disability payable for Temporary Total Disability (from 70% to the current 66.66%), based on the notion that the worker should be no better off disabled than if he were working, the 33% diminution assessed as an amount relatively close to his taxation rate. This rationale does not, of course, hold for those workers who exceed the maximum (currently $1,380) wage rate. The “Moral Hazard” rationale for reduction of benefits is based on the theory that an injured worker should not be “better off” because of his injury. In over 40 years’ representing injured workers, I’ve yet to see a worker actually better off because of his work injury.
Monday, August 8, 2016
As Professor Jason Bent has recently discussed on this blog, there have been a series of recent constitutional challenges to Florida’s workers’ compensation statute. Casual readers may be left with the sense that the Florida Supreme Court has done something reckless, and perhaps wrong. In July, the National Council of Compensation Insurance (NCCI), the workers’ compensation rate maker for 38 states, proposed a rate increase in Florida of 20% in response to the Westphal (striking down the 104-week statutory limitation on temporary total disability benefits) and Castellanos (mandatory attorney fee schedule unconstitutional) decisions. Then, within the last week or so, the same organization “projected” one-billion dollars of unfunded liability arising from the same two cases, and from a third case, Murray v. Mariner Health, decided in 2008 (attorney’s fees must be based on hourly schedule rather than a percentage of accrued benefits). The gist of the NCCI’s projection of enormous, inchoate liability is that injured workers’ attorneys may be able to pursue attorney’s fees retroactively, and that paying more than 104 weeks of temporary total benefits to qualifying injured workers will be terrifically expensive. Plaintiffs’ attorneys, in turn, have roundly derided the projections as outlandish and exaggerated.
The ensuing argument over these potential costs can be framed in any number of ways. Injured workers’ lawyers (not workers themselves, the argument goes) will unjustifiably, retroactively seek additional compensation from cases thought to be over that have now been illegitimately reopened as a result of the Florida High Court’s rulings. Or, if you prefer, lawyers have been outrageously underpaid during the preceding decade and are merely achieving a long-due, upward adjustment in fees; and an unjust and unsupportable gap in worker coverage has been rightfully closed.
However one frames the argument, there is a very real issue as to how to retroactively apply judicial changes to law in some rational pricing model. The entire discussion also squarely raises the issue I constantly discuss with my law students. In a system as large as “workers’ compensation” (in 2013, 63. 5 billion dollars in benefits were paid, while employers’ overall costs were 88.5 billion dollars), how can we ever confidently conduct cost-benefit analyses in a manner that is sufficiently persuasive to all stakeholders? The NCCI, a sophisticated and influential but solitary rating organization, attempts to project the retroactive effect of changes to the existing substantive law, an exercise made necessary by a workers’ compensation dynamic in which many cases are simply never “over.” Hard to gain trust with those kind of variables.
Here is another question to ask. During the first decade-and-a-half of the 21st century, have employers been helped or hindered by the exclusive remedy rule, by which workers a century ago surrendered their tort rights for workers’ compensation statutory remedies. I sense that until we know the answer to such a basic question we cannot intelligently, or globally, think about costs and benefits. After all, what would a billion dollars in additional costs mean in a country where workers could routinely sue employers in negligence lawsuits in court? In the meantime, policy battles concerning the magnitude of benefits will continue to rage within legislatures, and there will be winners and losers. Then the deck will be shuffled, and we’ll do it all again. In the midst of this din, reflexive castigation of judges who must attempt to fashion just outcomes from confusion avoids the real legislative work of being clear, open and honest about who will pay what, and why.
Michael C. Duff
Tuesday, August 2, 2016
An English professor's new memoir of living with post-accident quadriplegia is important reading for the workers' comp professional.
A common theme in workers’ compensation disability literature is that injured workers should be expected to rehabilitate themselves and eventually return to work, regardless of the severity of disability. We look forward to workers’ recoveries. Advocates of rehabilitation and return to work routinely promote the examples of the actor Christopher Reeves, and of catastrophically-wounded soldiers, who show astonishing resiliency and are restored to productive lives.
These individuals are heroes. However, is everyone who is catastrophically injured expected to respond in this courageous manner? In a new memoir, A Body, Undone (NYU Press 2016), this expectation is questioned. The author, Wesleyan University Professor Christina Crosby, sustained a severe spinal cord injury at age 50. Now 61, she is paralyzed from the chest down and is wheel-chair bound, though she is able to move her arms and can grasp items like the pages of a book. Crosby knows all about the heroism narratives, but she is intent on setting aside that model and telling the reader what it is really like to live as a quadriplegic.
Read the complete book review, Is Heroism the Standard?, at www.davetorrey.info.
Monday, August 1, 2016
One of the challenges that modern law school teachers of workers’ compensation law face is how (and whether) to teach beginning students about some of the complicated interactions between state and federal law. Workers’ compensation opt-out laws—which will be discussed in coming posts—are one example of this kind of interaction (in that case between workers’ compensation and ERISA). Another such interaction is between workers’ compensation and Medicare when cases are being “lump sum” settled in lieu of a claimant receiving ongoing benefit payments out into the future.
A Medicare Set-aside is a mechanism which “sets aside” a portion of gross settlement proceeds for future work related or accident related medical services and prescription drug costs which are “covered and otherwise reimbursable by Medicare”. The intent is to maintain Medicare as a “secondary” payer where an otherwise “primary” payer such as a workers’ compensation or liability insurance carrier would be responsible. These agreements or “arrangements” may also provide that Medicare be reimbursed for any payments it made during the period before an employer or insurance company’s liability for a work-related injury had been established. Set- asides are a hot topic of discussion because of their broad impact on the workers’ compensation settlement process.
Medicare Set-asides were first utilized in 1995 and after the “Patel” memorandum in 2001, which initially described the legal necessity for set-asides, became incorporated on a widespread basis within workers’ compensation settlements, judgments and awards. Medicare Set-asides may take different forms including workers’ compensation set asides (WCMSA), liability set asides (LMSA) or group health set asides (GHSA).
The Centers for Medicare & Medicaid Services (CMS) is the federal agency that administers Medicare. CMS approved $1.8 billion worth of WCMSA’s in fiscal year 2013 (latest available statistics see p. 22 here). According to one researcher WCMSAs make up about 49% of workers’ compensation total gross settlement proceeds and of that 40% arises due to prescription drug pricing. These are staggering sums in the context of settling workers’ compensation claims and can often lead to cases not being resolved or being resolved with the medical component of the case left open.
Medicare will defer payment for work or accident covered and otherwise reimbursable medical services and prescription costs until the amount placed in the Medicare Set-aside “account” has been properly depleted. Proper depletion means the administrator of the Medicare Set-aside has used Medicare Set-aside funds only for future work or accident related expenses.