Sunday, March 26, 2017
I had the good fortune to see an excellent panel presentation on “Injury Frequency Rates and Claim Trends” on March 18, during the inaugural College of Workers’ Compensation Symposium in Phoenix. Peter Rousmaniere showed slides persuasively demonstrating drops in the frequency of injuries and claims-filing over the last few decades, and predicting a substantial further fall-off in claims through the year 2022. Rousmaniere’s panel mates, Brad Ingram and Richard Thompson affirmed that the findings were consistent with their experience; and much of the attendees at the symposium appeared to be nodding in silent agreement. Perhaps predictably, an attendee’s hand shot up. “You know, this is pretty scary to those of us who make our living litigating workers’ compensation cases.” The comment, while refreshingly honest, would unlikely generate much sympathy among the general public. After all, most would agree that it is a great thing if human bodies are being torn asunder in the workplace with diminished frequency.
Of course, as Mr. Rousmaniere himself made clear, none of this is to suggest that those who are injured are being adequately compensated. Adequate compensation is, in my judgment, clearly not the rule. And if injuries really are diminishing a rather immediate question is why there should be workers’ compensation undercompensation in an era of apparent diminishing cost. Moreover, although Mr. Rousmaniere addressed the issue of under-claiming by claimants in his well-crafted model, this veteran of the working class (that is, me), has always suspected gross underreporting of workers’ compensation injuries. I have personally worked in blue collar workplaces (for my daily bread, not as an “experiment”) in which it was understood that you would be fired immediately if you filed a workers’ compensation claim. There is the letter of the law, the data of researchers, and the lived experience of the real world. Different things, all.
Leaving all that to one side, however, I wanted to say a word about the predictive power of injury models generally. President Trump’s proposed budget calls for a cut of $2.5 billion at the Department of Labor. One need not be a soothsayer to understand that OSHA, SSI, and Medicaid (among other programs) are on the verge of being pared down to virtual non-existence. I am similarly unenthusiastic concerning all federal programs dealing with workplace safety. Let us speak plainly. American manufacturing left the country to avoid regulation and unionized labor costs. As private sector union density approaches 6%, and safety regulations evaporate, it is not so hard to imagine an American workplace that is “re-dangerous.” Cars were no doubt being made dangerously in China, and if their manufacture is re-shored I should not be surprised to rediscover dangerous conditions. No doubt, robots and the like may improve the situation. But as last Friday’s Bloomberg piece—Inside Alabama’s Auto Jobs Boom: Cheap Wages, Little Training, Crushed Limbs—made abundantly clear, models of future injury rates will have to take into account the re-dangerous.
Michael C. Duff
Thursday, March 23, 2017
On Saturday (March 18, 2017), at the ABA Work Comp (WC) Seminar in Phoenix, I presented a paper on workers' compensation rights of undocumented workers. (I was assisted in the project by a talented Pitt Law student, Justin Beck, who is going into the field.)
The paper concludes with a fifty-state table. It is posted at www.davetorrey.info.
As far as I can tell, 32 states now have authority holding that an undocumented worker can be an employee for purposes of WC laws, 1 state has authority to the contrary (Idaho), 18 are officially undecided, and 1 (Wyoming) considers such workers employees if the employer believes the worker was documented. The total is 52, as I am including D.C. and the LHWCA.
Not everyone counts this item quite the same way. The attorney Gary Wickert, long known as a national subrogation expert, has a new online table out (cited in the bibliography), with slightly different results.
The bigger issue, nationwide, is the extent to which such workers are entitled to benefits.
Of special interest was the seminar commentary of the two injured worker lawyers from Phoenix and Tucson who presented along with me. In Arizona, no statute or common law declaration unequivocally exists that an undocumented worker is an employee for WC purposes. The language one of my colleagues used was that the state was “officially neutral” on the issue, and both sides seem to avoid the worker’s immigration status. As many undocumented workers sustain injury in the state, this custom and practice seems quite remarkable.
Friday, March 10, 2017
Pennsylvania Commonwealth Court Citing AMA Causation Guides (Second Edition) and its Reference to the Bradford Hill Criteria
The AMA Guides to the Evaluation of Permanent Impairment, now in its Sixth Edition, is an iconic text well known to all in our field. And, of course, in my state (Pennsylvania), the manual is under full-frontal assault in our Supreme Court. Protz v. WCAB (Derry Area School District), 124 A.3d 406 (Pa. Commw. 2015), appeal granted, ___ A.3d ___ (Pa. 2016). (2016 Pa. LEXIS 501 (Pa. Mar. 22, 2016), argued Nov. 1, 2016).
Less well known is another book: the AMA Guides to the Evaluation of Disease and Injury Causation. This book, in its Second Edition, has the goal of assisting health care providers in generating expert opinions on causation “based on a careful review of the [patient’s] clinical findings, workplace exposures, and the literature linking (or not linking) the exposure of concern and the condition in question.” Of course, you will discern from this description that the book is a bodacious valentine (792 pages), to evidence-based medicine (EBM). (Note: I was a lay reviewer of the book.)
In the spirit of promoting EBM, the authors feature a short subchapter (pp. 688-91), describing the “Bradford Hill Criteria.” They are described in Wikipedia as follows: “The Bradford Hill criteria, otherwise known as Hill’s Criteria for causation, are a group of guidelines that can be useful for providing evidence of a causal relationship between a putative cause and an effect, established by the English epidemiologist Sir Austin Bradford Hill (1897–1991) in 1965.”
It’s clear that the lawyers at Chartwell, the Pennsylvania law firm, know all about the book and Hill’s Criteria. In their truculent opposition to presumption-based firefighter cancer claims, on behalf of the City of Philadelphia, it is obvious that defense counsel has used (and is using) this manual in cross-examination of the cancer-victims’ causation expert. They have done so to try (in all reported cases, successfully), to discredit the expert’s testimony as not being based on EBM principles. In affirming several of the cancer claim denials, the Commonwealth Court has noted the Hill Criteria and its most immediate source in AMA Causation Guides.
One can’t say that the court is ratifying the Hill Criteria. This is so as the opinions are simply affirming trial judge credibility determinations. Still, surely lawyers and judges have been better educated about the contemporary thinking about causation in disease (and other) cases, through the court’s exploration of the guidelines.
It’s worth noting, in this regard, that the court in the past has been very permissive in what expert medical proofs the trial judge can accept. In this latter respect, a memorable declaration: the WCJ can “reject a whole school of science if he wishes ….” Wheeling Pitt v. WCAB (Bruce), 827 A.2d 564 (Pa. Commw. 2003).
Will this permissive approach survive as the rule? Perhaps so. Still, effective counsel (on both sides), in occupational disease, and other non-obvious cases, will now surely be considering the Hill Criteria.
A postscript: The intrigue in Pennsylvania will continue. In this regard, the most prominent of the Philadelphia firefighter cancer cases has now been accepted by the Supreme Court. See City of Philadelphia v. WCAB (Sladek), 144 A.3d 1011 (Pa. Commw. 2016) (allocatur granted).
Tuesday, March 7, 2017
The ABA-founded honor society “The College of Workers’ Compensation Lawyers” (CWCL) will soon convene its first educational Symposium in Phoenix. The half-day CLE, on Saturday, March 18, 2017, immediately follows the ABA workers’ compensation sections educational seminar.
The moving force behind the event, Florida Judge John Lazzara, awarded me the task of selecting, and then presenting on, the “nation’s five most significant court cases of 2016.” My panel consists of none other than Professor Mike Duff, of this blog; and one of the icons of Pennsylvania comp, Burke McLemore of Thomas, Thomas, & Hafer. (Burke will also be in Phoenix to be inducted as a Fellow of the CWCL.)
Here is my pick of the top five, selections which will likely be familiar to you if you have followed the past tumultuous year in the field:
- Vasquez v. Dillard’s, Inc., 381 P.3d 768 (Okla. 2016) (Oklahoma statute allowing “opt-out” found unconstitutional).
- Rodriguez v. Brand West Dairy, 378 P.3d 13 (N.M. 2016) (exclusion of agricultural workers from workers’ compensation coverage held unconstitutional).
- Protz v. W.C.A.B. (Derry Area School Dist.),124 A.3d 406 (Pa. Commw. 2015), appeal granted, 124 A.3d 406 (Pa. 2016) (broad delegation by legislature to oblige physicians and legal system to utilize the “latest edition” of the AMA Guides was constitutionally impermissible) [note: argued 11.1.2016.]
- Vitale v. Schering-Plough Corporation, 146 A.3d 162 (N.J. Super. A.D. 2016), pet. for cert. for rev. granted, 2016 WL 7665625 (employment clause obliging workers to waive right to sue third parties in event of work injury held violative of public policy).
- Castellanos v. Next Door Co., 192 So.3d 431 (Fl. 2016) (mandatory sliding-scale fee attorney’s fees schedule which could afford minimal fees violated due process clauses of Florida and United States Constitutions).
For more information about the two programs, see http://www.americanbar.org/groups/labor_law/committees/wccom/midwinter.html.
Monday, March 6, 2017
As I noted here last week, in Pennsylvania, the Supreme Court generally enforces the exclusive remedy with an iron first. There is, indeed, no intentional tort exception. Barber v. Pittsburgh Corning Corp., 555 A.2d 766 (Pa. 1989); Poyser v. Newman & Co., 522 A.2d 548 (Pa. 1987).
Yet, under the landmark case Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), an employee may sue his or her employer for diseases which manifest themselves outside the law’s 300-week statute of repose. A remarkable exception to the exclusive remedy hence exists.
Aggressive plaintiffs in Philadelphia recently tested the limits of the exception. See Smith v. American Airlines, 2016 U.S. Dist. LEXIS 107402 (E.D. Pa. 2016)
There, fleet service agents alleged that they had been exposed to cancer hazards from long-term, unsatisfactory use of airplane lavatory cleaning chemicals. They brought a class action in federal court seeking damages in the nature of medical monitoring. The district court, however, held that such claims were barred by the exclusive remedy. The court, in this regard, refused to read – or expand – Tooey. Specifically, the court refused to allow claims for hazards that might cause delayed manifestation diseases more than 300 weeks after last exposure. The court dismissed the idea that Tooey should be so liberally interpreted, responding that “this argument is highly speculative and without legal support.”
The court added, meanwhile, that “costs for medical monitoring qualify as a claim” under the Pennsylvania Workers’ Compensation Act. (See Footnote 14). Thus, the exclusive remedy would in any event protect the employer from this type of civil claim. For this proposition, the court cited Brendley v. Pennsylvania Department of Labor & Industry, 926 A.2d 1276 (Pa. Commw. 2007); Fried v. Sungard Recovery Services, Inc., 900 F. Supp. 758 (E.D. Pa. 1995). On this point, see generally Torrey-Greenberg Treatise, § 4:10 (3rd ed. 2008).
Friday, March 3, 2017
Authority now available regarding insurance coverage for civil action claims brought under Tooey v. AK Steel Corp. (Pa. 2013)
In Pennsylvania, the Supreme Court generally enforces the exclusive remedy with an iron first. There is, indeed, no intentional tort exception. Barber v. Pittsburgh Corning Corp., 555 A.2d 766 (Pa. 1989); Poyser v. Newman & Co., 522 A.2d 548 (Pa. 1987).
Yet, under the landmark case Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), of the Pennsylvania Supreme Court, an employee may sue his or her employer for diseases which manifest themselves outside the law’s 300-week statute of repose.
A remarkable exception to the exclusive remedy hence exists.
One school of thought, since 2013, has posited that general liability policies (like the CGL) will cover the employer in such situations.
When, in 2013, I first heard that assertion, I rejected it out of hand, and have remained of the view that no authority exists to commend it. Virtually all liability policies (as far as I know) exclude bodily injury claims by employees against their employers. The idea, after all, is that commercial liability policies are supposed to be coordinated, and that insurance for those claims is found under the Workers’ Compensation and Employers Liability Policy.
This position seems to have been vindicated. A persuasive Pennsylvania federal district court case, filed on January 26, 2017, has ruled that a claim under Tooey was not covered by a general liability policy which included such a standard exclusion. The court flatly held that the bodily injury exclusion for claims by the insured’s employees was applicable in the face of a Tooey claim. (The plaintiff widow’s spouse had developed, and died from, mesothelioma, more than 300 weeks after his last exposure in the 1970’s, and was suing his former employer in tort.)
In the declaratory judgment case that so held, the court granted the carrier’s motion for summary judgment. National Fire Ins. Co. of Hartford v. Burns & Scalo, 2017 WL 372144 (E.D. Pa., filed Jan. 26, 2017). The carrier had no liability to its general liability policy-insured.
As suggested above, presumably any such insurance coverage is found under Part 2 of the Workers’ Compensation and Employers Liability Policy. See generally Torrey-Greenberg, § 23:43.
That’s why employers purchase Part 2 coverage. See Donald D. DeCarlo & Roger Thompson, Workers Compensation: The First Hundred Years, p.207 (American Society of Workers Compensation Professionals 2nd ed. 2012) (noting, inter alia, that Part 2 features the following language: “the insurer promises to pay all sums that the insured legally must pay as damages because of the bodily injury to employees ….”). See generally David D. Thamann and Diana B. Reitz, Workers' Compensation Guide: Interpretation and Analysis, Chapter 3 (National Underwriter 2000).
Thursday, March 2, 2017
As I noted in my December 29, 2016 posting, the talented Post & Schell attorney Kyle Black has written the definitive brief (for Pennsylvania, in any event), on the issue of whether an injury or death caused by a hate crime arises in the course of employment. (See below). Mr. Black has now allowed me to post this important briefing on my website. See www.davetorrey.info.
The next time we encounter injury or death via these unfortunate events, Pennsylvania lawyers and judges will be ready to read a top-notch critical analysis of the governing law.
Workers’ compensation lawyers in Pennsylvania and elsewhere are waiting nervously for the Supreme Court to make its ruling in the renowned Protz case. See Protz v. W.C.A.B. (Derry Area School Dist.),124 A.3d 406 (Pa. Commw. 2015), appeal granted, 124 A.3d 406 (Pa. 2016). The big issue – will the court really accept the claimants’ advocacy that the legislature had no ability to adopt the AMA Guides?
So some background …. Many state laws provide that awards of permanent disability are to be based on impairment ratings derived by the American Medical Association manual, Guides to the Evaluation of Permanent Impairment. Workers have, over the years, mounted constitutional challenges to the ability of legislatures to adopt the Guides by reference. See Steven Babitsky & James J. Mangraviti, UNDERSTANDING THE AMA GUIDES IN WORKERS’ COMPENSATION, FIFTH EDITION, p.3-1 et seq. (5th ed., 2015 Supp.).
In 2015, such a challenge was successful, as a middle-level Pennsylvania court (the Commonwealth Court) held that the law’s proviso that the impairment rating evaluation (IRE) physician is to utilize the “most recent edition” of the Guides was violative of the Pennsylvania constitutional provision forbidding “unconstitutional delegation of authority,” found in the constitution at Article II, Section 1.
(As to the statute, see Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, PA. STAT. ANN. tit. 77, § 511.2.)
The Workers’ Compensation Judge on remand was to utilize not the Sixth Edition but, instead, the Fourth – that is, the edition which existed when the IRE statute was enacted in 1996. The court noted that the Pennsylvania Constitution provides, at Article II, Section 1, “the legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” This provision embodies “the fundamental concept that only the General Assembly may make laws, and cannot constitutionally delegate the power to make law to any other branch of government or to any other body or authority.”
As foreshadowed above, the Pennsylvania Supreme Court accepted the case on appeal, and oral argument was held on November 1, 2016.
No consensus seems to exist on how the court will rule.
The court could affirm the Commonwealth Court, and we in Pennsylvania would hence revert to use of the Fourth Edition. Or, in a dramatic gesture, the court could indeed completely jettison the AMA Guides. This speculation is fueled by Chief Justice Saylor’s obvious dislike of the manual. Indeed, in a decision filed in January, the Chief Justice quoted Dr. Nortin Hadler’s memorable critique when he ventured, “we note that the approach of tying the continuation of disability benefits to impairment rating protocols has been decried by many physicians and characterized as ‘unappealing, if not Orwellian’ in commentary.” See Duffey v. W.C.A.B. (Trola-Dyne, Inc.), ___ A.3d ___ (Pa., filed Jan. 19, 2017). See
In any event, a veteran workers’ compensation lawyer has speculated to me, “they [the Court] [must] not have a majority for any view regarding Protz yet… If the Chief Justice can get three other votes, I think it gets thrown out lock, stock and barrel …. Then it will be a fight to the death in the legislature to get something the current administration will agree to.”
Wednesday, March 1, 2017
Employees who sustain work-related injuries are, of course, normally free to sue third parties said to be liable in the injury. The Pennsylvania Supreme Court, however, has held that it is legitimate for an employer to demand from an employee a pre-injury waiver of the employee’s right to sue such a third party. Bowman v. Sunoco, Inc., 65 A.3d 901 (Pa. 2013). Pennsylvania aligns itself with the majority on this issue.
Now, however, a New Jersey appellate court has disapproved of such waivers. See Vitale v. Schering-Plough Corp., 146 A.3d 162 (N.J. Super. 2016). The New Jersey Supreme Court has accepted the case on appeal.
In the wake of this developing law, a talented law student has authored an essay, Employee Waivers of the Right to Sue Third Party Tortfeasors: Law, Policy, Recent Developments, and Implications for Workers’ Compensation and the Injured Workers it Serves. The author, Alex M. Lonnett, who attends Pitt Law School, has, with this essay, won first place in the law student writing contest sponsored by ABA-founded College of Workers’ Compensation Lawyers. Mr. Lonnett is generally sympathetic to the minority rule, concluding that such waivers “undermine the foundational philosophy behind workers’ compensation statutes and harm both the employee and employer.”
Mr. Lonnett has provided this writer with the final version of the essay. It’s available from DavdTorrey@aol.com.