Wednesday, October 26, 2016

Symposium: "The Demise of the Grand Bargain" -- A Report, Part II

... More of my report, here, on the September 23, 2016 symposium at Rutgers-Camden Law School ....

            As noted in my previous post, the final version of the symposium papers will be published in the Rutgers Law Review. For now, here are five points that I found of particular interest.    

  1. Professor Burton, in a reprise to prior advocacy, insisted that state workers’ compensation programs can still work better with a pro-active agency. See John F. Burton, Jr. & Monroe Berkowitz, Paean to an Active Workers’ Compensation Agency, John Burton’s Workers’ Compensation Monitor, Vol. 2, No. 7 (Sept./Oct. 1989) (available at
  1. Professor Burton (as he has in the past) questions whether contingent fees for attorneys in workers’ compensation are the best method of compensating lawyers. He stated that he believes that lawyers should indeed be paid, but he suspects that the contingent fee awakens in the lawyerly mind an inappropriate desire to compromise- settle and lump sum cases. Perhaps, he ventured, the most generous fees should be payable to lawyers in cases where his or her representation has facilitated a return to work for the injured worker.
  1. Professor Williams, of Rutgers Law School, an expert on state constitutional law, encouraged lawyers fighting drastic workers’ compensation reform to use state constitutional resources. Of course, such an approach was employed aggressively by Attorney Bob Burke in Oklahoma, who, armed with the Oklahoma Constitution, achieved the striking down of opt-out. (The state constitution was also employed in Oregon, where the state supreme court applied the Oregon Constitution’s “Open Courts” proviso, which has its genesis in the Magna Carta, to declare that an injured worker’s rights under both the compensation act and in tort could not be abolished.)
  1. Professor Justin Long, of Wayne State University Law School, encouraged the audience to conceptualize “retrenchment” in workers’ compensation law as another example of a larger attempt of employers (and individuals) to escape the public system. Mandatory arbitration clauses are another example. To this writer, the strategic effort of employers to detach themselves from traditionally acknowledged social responsibilities reflects the general decline in commutarianism about which much has been written.
  1. Professor Burton does not believe in promoting federal standards anymore. Of course, this was his theme in his Pennsylvania Centennial address in June 2015. See John F. Burton, Jr., Keynote Address for the Centennial Celebration of the Pennsylvania Workers’ Compensation Program, Hershey, PA (June 1, 2015), available at (last visited October 3, 2016). Burton insisted that the “playing field is very different now” than it was in the 1970’s, when the Commission, which he headed, published its nineteen voluntary recommendations.  Federal standards, in the present day, “are not a practical solution.”

            If you're like me, you'll be looking for that May 2017 law review edition.  I will summarize the articles at length when they're published!

October 26, 2016 | Permalink | Comments (0)

Symposium: "The Demise of the Grand Bargain" - A Report, Part I

        The Pound Civil Justice Institute, in partnership with Northeastern University School of Law and the Rutgers Center for Risk & Responsibility, recently convened a one-day academic symposium, “The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century.”  Some of the papers presented (most of them not in final form), can be found at  I was pleased to attend as a "discussant," as was Professor Mike Duff of this blog project.  

        The critical presentations (and their presenters) were as follows: (1) Work Injury and Compensation in Context,1900 to 2016, Emily Spieler, Northeastern University School of Law; (2) Workers’ Compensation at a Crossroads: Back to the Future or Back to the Drawing Board?, Alison Morantz, Stanford Law School; (3) Can State Constitutions Block the Workers'-Compensation Race to the Bottom?, Robert F. Williams, Rutgers Law School; and, finally, (4) Outside the Grand Bargain: The Persistence of Tort, Robert L. Rabin, Stanford Law School.  These papers will be published in the May 2017 issue of the Rutgers Law Review.

        As one can infer from the title of the symposium, the focus was on the slow but unmistakable swing of the pendulum away from workers’ compensation laws solicitous of worker interests and towards business. The most dramatic (nay, nihilistic) manifestation of that swing, of course, is the opt-out movement, which generates proposed laws that permit employers to opt out of the system if they establish private plans of their own design – while conveniently retaining the exclusive remedy.

            The first major paper, presented by Professor Spieler, first traces the history of workers’ compensation from its beginnings to 1972. In that year, workers’ compensation largely rebooted (my term) and, in Professor Spieler’s view, was reconceptualized by National Commission leaders as one which depicted adequacy of income replacement as essential to an effective system.  Thereafter, most states responded to some degree and liberalized their laws (Pennsylvania is a major example), but since 1980 retraction has, for the most part, been the major feature of legislation in the field.

            As a commentator on the panel, I noted that Pennsylvania is a jurisdiction where we have, to date, avoided the harshest aspects of retraction. While duration of disability benefits to all but the most severely impaired became limited in 1996, our injury definition and course of employment doctrine has not been the subject of retraction; Pennsylvania covers occupational diseases generously, and with presumptions; aggravations of pre-existing conditions can be compensated; Frye, not Daubert, guides the admissibility of expert opinions; and the rule of liberal construction endures.

            True, agents of change have promoted laws that would further limit employee choice of physician, and regulate physicians in how they treat injured workers, but to date these retractive proposals have not gained a foothold. I did agree that the increasing popularity of lump sum compromise settlements (and increasing lack of oversight of the same) coupled with the ubiquitous demand that workers resign or agree not to reapply, signaled loosening of the idea that the system should focus on worker rehabilitation – another ideal of the National Commission. It seems in the modern day, rightly or wrongly, that most claims have become, via C&R, commodified, and rehabilitation is not even given lip service. Here I can only speak for my state. One of my co-panelists, the distinguished Louisiana lawyer Chuck Davoli, seemed less concerned on this point. Settling and resigning, he noted, gives the worker a chance to put his claim behind him and move one.

            Professor Spieler’s analysis (and those of others, particularly Professor Burton), that retractive legislation in many states has been facilitated by the decline of the labor movement, rang true to me. Burton, notably, stated that unions have little voice in state legislatures, and the “AFL-CIO nationally does not have workers’ compensation on its agenda.” “Workers’ compensation,” he insisted, “used to be a much more important item for labor.” As a result of this apparent decline, it seems that in many legislatures, trial lawyers now play a key role in protecting worker interests.

            And, of course, when it comes to the litigated case, the claimants’ bar is the injured worker’s only advocate. Retractive reformers know this, and have advanced laws in other states designed to limit lawyer participation. While too much lawyer and judge involvement undoubtedly exists, the unfairness of depriving injured workers of legal counsel is obvious if for only one reason – the employer and carrier will always have insurance and legal experts on their side.

            The presenters at the conference were mostly of one mind that retractive reform threatening demise was unsatisfactory. Some presenters, however, were only presenting data or, for example, explaining state constitutional provisos, and I did not detect their opinion on the overriding – sometimes passionate – theme of the conference.

            Perhaps the most remarkable presentation was by articulate Rutgers law professor Adam Scales, who suggested dismantling the system, promoting universal insurance, and allowing some level of employee tort actions against their employers.  (Watch for Part II of my report!)

October 26, 2016 | Permalink | Comments (0)

Tuesday, October 25, 2016

Teaching Worker Safety

In this post, I want to raise a general question about the place of workers’ compensation in the law school curriculum.  At many law schools, the “core” labor and employment courses include: Employment Law, Employment Discrimination Law, Labor Law, and Employee Benefits.  A course in Workers’ Compensation may or may not be included as a fifth course in that core curriculum, and it may not be offered as regularly as some of the other courses in the labor and employment field.  A survey course in Employment Law may touch upon the subjects of workers’ compensation and OSHA, but many such courses omit them and probably none cover them in great detail. So where does workers’ compensation fit, and how might the course best be structured to serve our students? 

The practice of workers’ compensation law is highly specialized and often characterized by state-specific details (and the resulting state-specific acronyms and jargon).  As just one example, in Florida and some other states the concept of a “major contributing cause” (MCC) provides a critical limitation on recovery.  Likewise, familiarity with state-specific developments such as Florida’s recent invalidation of a strict attorneys’ fee cap is important for those considering entering practice in the field. So, perhaps students are best served by specialty Workers’ Compensation courses that focus on the general structure of state workers’ compensation statutes, their historical development and limitations, and significant time studying the unique state-specific provisions in the jurisdiction where most of the school’s graduates will practice.    

On the other hand, an overly-narrow focus on the details of a single state statute may risk losing the forest for the trees.  A complete understanding of the role of workers’ compensation in our society really requires at least some critical consideration of theories of market behavior (compensating wage differentials for risky work), the tort system alternative/precursor to workers’ compensation systems, and other governmental regulation of worker safety (OSHA).  Students ought to consider whether we need workers’ compensation laws at all; if so, why; and how should they be structured?  To that end, I have experimented with a small-enrollment seminar course titled “Worker Safety Law and Policy.” The first few weeks of the course are devoted to understanding market theory, compensating wage differentials, and the identification of potential market failures that might justify legal intervention. Then we move to a consideration of the tort system precursor (and its FELA iteration) and the historical limitations of tort, including the unholy trinity defenses. Next we examine the history and structure of workers’ compensation laws, with a special focus on some key provisions and developments in Florida law. We also consider alternative approaches, like the different opt-out systems in Texas and, until recently, Oklahoma.  Finally, we turn to OSHA to consider whether there is a residual need for command-and-control type regulation of workplace safety and, if so, how it might best be structured to counteract market failures.  Understanding workers’ compensation from this broader, more theoretical perspective may help students gain a better appreciation of what the Grand Bargain represents and what is at stake in challenges to current state laws.  In my experience, I have found that this course structure works quite well, although it necessarily leads us to spend less time on some specific aspects of the Florida statute than would a typical course on Workers’ Compensation.

Given that many of the contributors and readers of this blog practice in the field, I’m curious about what others think is the best way to approach the subject of workers’ compensation in law school.  Where does workers’ compensation—or, more broadly, worker safety—fit?

Jason R. Bent

October 25, 2016 | Permalink | Comments (0)

Sunday, October 16, 2016

More Devils in the Details of Workers' Compensation Federalization

For those attempting to imagine the federalization of workers' compensation, I would suggest that the nuts and bolts not be forgotten. In a truly federal system, cases would have to be heard in some type of federal forum. Consider that -- as Jon Gelman noted today on one of his blogs -- the Social Security hearing backlog has reached historic proportions. As of last March, there were 1,114, 079 pending claims awaiting a hearing decision with an average age of 318 days. The age and processing time of SSDI claims have been steadily increasing since 2010. I have had personal experience with this backlog in my small, rural state of Wyoming. It took three years for my uncle's (clearly meritorious) SSDI claim to make it to the precipice of hearing. I resolved the claim informally the day before the hearing. It has been 19 years since I handled SSDI claims as part of my job, but even back then it was very hard to get to hearing. I cannot help but think about this nuts and bolts experience with SSDI when reflecting on a federal workers' compensation system. I honestly wonder whether a federal administrative adjudication system could be sufficiently nimble to deal with the day to day claims volume that would come with the territory. And all of this comes before the substantive dilemmas to which I have alluded in prior posts.

Michael C. Duff    

October 16, 2016 | Permalink | Comments (0)

Wednesday, October 12, 2016

Listen, then speak

During the last month or so there has been a remarkable amount of deep thinking going on about the condition of workers’ compensation in the United States. On September 23, I had the privilege of participating in an academic conference at Rutgers Law School titled, “the Demise of the Grand Bargain.” It was quite a thrill to have the opportunity to share a stage with academic luminaries John Burton, Emily Spieler, Robert Rabin, Alison Morantz, Adam Scales, Bob Williams, George Conk, and Price Fishback. This blog’s own David Torrey also ably provided a judicial-academic perspective, while Workers’ Injury Law & Advocacy Group (WILG) official Chuck Davoli represented a perspective from the claimants’ Bar.

Then, on the September 26, I was privileged to address WILG’s annual convention on ERISA/workers’ compensation opt-out issues. The audience was gracious enough not to get up and walk out as I droned on discussing very long (too long!) statutory passages from ERISA.

Finally, last week, the Department of Labor gave a presentation and released a report on the state of workers’ compensation. Since that time, I have been asked repeatedly whether I thought workers’ compensation was likely to be “federalized.”

I have tried hard to say as little as possible in the wake of this activity in order to allow as much as possible of what has transpired to “sink in.” I find that at the end of this activity I have come away with the following points:    

  • I do not believe that workers’ compensation is on the verge of being taken over by the federal government. I simply do not buy that there is sufficient political will in the country to accomplish something of that magnitude. The amount of legislative resources to accomplish such a task would be larger than many imagine. Large sections of ERISA and the Affordable Care Act would have to be rewritten. It is not clear to me who would (or could) do the writing.
  • Related to the foregoing, to the extent that the Grand Bargain continues to be any kind of actual negotiation, I am at a loss to understand how the winners in the current status quo could be forced to the bargaining table. Who bargains when they are winning?
  • I think much more likely than the dramatic scenarios that have been under discussion is an ongoing (agonizing) state-by-state challenge of an in-progress race to the bottom that will be tightly focused on individual states’ constitutions. The state challenges will take different forms: special laws (as in Oklahoma); equal protection (as in New Mexico), state due process; access to courts; right to a remedy, & etc. These challenges will center on rights analyses because, at the state level, it is much less easy to obscure the original bargain of tort for workers’ compensation rights and remedies.
  • In connection with the previous point, I do think that the Department of Labor (and others) will increase their investigative focus on the adequacy of workers’ compensation benefits and, to the extent increased study demonstrates persuasively the inadequacy of benefits, I think it could influence the state-law challenges I referenced above.  
  • Cost shifts to federal programs will be difficult to measure because they presume stable Federal-State baselines that have in fact been deeply influenced by state-based causation standards. In other words, it is sometimes very difficult to say that a shift to the federal system would have occurred in the absence of changes to state-based causation standards (my thanks to Rutgers Law Professor Adam Scales for helping me to understand this point).
  • The opt-out phenomenon is not over. Shaw v. Delta Airlines very clearly provides states with the ability to allow compliance with workers’ compensation statutes through ERISA-governed plans. I suspect Oklahoma’s statute was a first draft; we are likely to see others. Moreover, not every state’s constitution will allow for the kind of “special law” or equal protection analyses that scuttled opt-out in Oklahoma.

Michael C. Duff

October 12, 2016 | Permalink | Comments (0)