Monday, November 28, 2016

U.S. Supreme Court Politics and Why Florida May Not Produce the Test Case on Workers' Compensation Benefit Adequacy

When the U.S. Supreme Court denied cert in Stahl v. Hialeah Hospital earlier this fall, certain commentary around the blogosphere seemed to suggest that the reason for the declination was a lack of interest on the Court’s part in the application of federal due process floors to state workers’ compensation.  As everyone will recall, there is an argument that White hinted at some required baseline of adequacy for workers’ compensation benefits (see my article on these issues here). The problem is determining upon what the baseline could have thought to be grounded by the Court writing in 1917. The Court has assiduously avoided writing more on the adequacy of workers’ compensation benefits, specifically, or more generally on the question of some measure of adequacy in connection with personal injury damages. However, Justice White, writing in dissent on the occasion of the Court’s dismissal of a Petition for Cert of the California Supreme Court’s upholding of California’s medical malpractice damages limits in Fein v. Permanente Medical Group, 695 P.2d 665 (Ca. 1985), stated as follows:

Whether due process requires a legislatively enacted compensation scheme to be a quid pro quo for the common-law or state-law remedy it replaces, and if so, how adequate it must be, thus appears to be an issue unresolved by this Court, and one which is dividing the appellate and highest courts of several States. The issue is important, and is deserving of this Court's review. Moreover, given the continued national concern over the “malpractice crisis,” it is likely that more States will enact similar types of limitations, and that the issue will recur. I find, therefore, that the federal question presented by this appeal is substantial, and dissent from the Court's conclusion to the contrary. 472 U.S. 892 (1985) (White, J., dissenting).

I don’t think the legal situation regarding damages capping has changed much and suspect there is some sympathy at the Court for the notion of a damages floor protected by federal due process (just as the Court has been willing to establish a due process based damages ceiling in B.M.W. of North America, Inc. v. Gore, 517 U.S. 559 (1996).  

Consider the judicial politics of the situation, however. If you were a Justice sympathetic to the notion of damages floors, why would you choose a case from Florida to fight the battle? What Florida is showing us over and over again is that its state constitution (and able plaintiffs’ bar) is capable of fighting “floor battles” on state constitutional and statutory grounds. All that is required for establishment of a floor in Florida is working out state law theoretical questions of how to bring facial challenges to statutes. One suspects that the recent Florida trial level case insisting that NCCI rate setting proceedings comply with the state’s open meeting, Fee v. NCCI and the Florida Office of Insurance Regulation (Nov. 23, 2016), is but another step on the road to a constitutionally based theory of benefit adequacy. In any event, if I were a clerk to a Supreme Court Justice I would not be focusing on Florida for a test case on the workers’ compensation race to the bottom. There are better candidates out there and they are likely to make themselves known sooner rather than later.   

Michael C. Duff

November 28, 2016 | Permalink | Comments (0)

Tuesday, November 15, 2016

The Cancer Presumption in Workers' Compensation

What is a legal presumption? 

Can a legal presumption be rebutted by sufficient contrary evidence?

Wisconsin workers’ compensation law contains many presumptions.  For example, for firefighters, it is presumed that if a firefighter has cancer, the cancer is employment-related.  The Statute applies to any State, County, or Municipal firefighter who has worked for ten years with at least two-thirds of the working hours as a firefighter who has cancer of the skin, breast, central nervous system, or lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive systems.  For that firefighter whose disability or death is caused by cancer, the cancer diagnosis is presumptive evidence that the cancer was caused by employment.  However, no presumption exists for firefighters who smoke cigarettes or use tobacco products for claims after January 2001.  (Wis. Stat. §891.455 Presumption of Employment Connected Disease: Cancer)

Other presumptions in Wisconsin law include a presumption that a youthful worker (under age 27) is presumed to be able to earn the maximum wage rate by the time he reaches age 27, for purposes of Permanent Partial Disability, disfigurement, or death.  For example, a McDonald's burger-flipper earning $10 per hour who has a severe burn is presumed (instead of the $200 or $300 he actually earns per week) to be earning $1,400 per week under the Youthful Age Presumption.  Evidence of the worker’s likely inability to earn the maximum wage (due to cognitive or academic deficiency or similar lower earning work history) can be used to rebut the presumption and therefore limit the maximum Permanent Partial Disability or disfigurement award.

In a recent cancer case, the Pennsylvania workers’ compensation board found a firefighter cannot receive workers’ compensation benefits for prostate cancer because he failed to show his cancer was work-related despite a statutory presumption for firefighters.  The firefighter began working for the City of Philadelphia in the 1970s and retired in 2006 after a diagnosis of prostate cancer.  He filed a workers’ compensation claim saying his cancer stemmed from carcinogens he was exposed to while working as a firefighter, such as diesel fumes from fire trucks, second hand tobacco smoke from co-workers, and smoke from burning debris he encountered while fighting fires.  Note he also acknowledged he smoked an average of a half pack of cigarettes daily since the 1960s.  His doctor’s testimony that his carcinogen exposure caused the prostate cancer was rebutted by the City’s physician indicating that prostate cancer is typically more of a “disease of aging than it is of external influence.”  The Judge, in denying the claim, noted “Any elevated risks for prostate cancer among firefighters might also be explained by other factors, such as detection bias, ethnicity and geography.”

The cancer presumption in Wisconsin (for non-smoking firefighters) would be more difficult to rebut, but factors such as family history may prove the “other evidence” necessary to rebut the presumption.

Thomas Domer


November 15, 2016 | Permalink | Comments (0)