Workers’ Compensation Law Prof Blog

Interesting Permanent Impairment Decision in Maine

News outlets have been reporting on the case Bailey v. City of Lewiston, decided by the Maine Supreme Judicial Court on July 20. As background, Maine uses permanent impairment ratings as a mechanism to determine caps on receipt of permanent partial disability benefits (called permanent “incapacity” benefits in Maine). When a worker’s permanent incapacity rating exceeds 15%, there is no cap on the number of weeks the worker may receive partial benefits (calculated in Maine as a percentage of the difference between pre-injury average weekly wage and post-injury earning capacity). When impairment is rated at 15% or below, a worker in Maine is limited to 260 weeks of partial incapacity benefits. (The structure is somewhat reminiscent of the Pennsylvania impairment/benefit mechanism at issue in Protz).

The employee in question, Bailey, suffered a respiratory work injury which developed into a reactive airways deficiency syndrome. By administrative award, he began to receive partial incapacity benefits in 2004. In 2007, his employer, the City of Lewiston, Maine, sought review of his award of indemnity benefits and determination of his level of permanent impairment. The administrative official denied any decrease in benefits, but also found that Bailey had reached maximum medical improvement (MMI), and had sustained permanent impairment of 32%. Because the 2007 award established permanent impairment in excess of 15%, Bailey was eligible for partial benefits without a cap.  In 2013, the employer again filed a petition seeking review of Bailey's incapacity, and a second petition seeking to re-determine Bailey’s permanent impairment, introducing an updated medical examination claiming to show permanent impairment had decreased to 0%. An administrative official rejected Bailey's claims that the doctrine of res judicata precluded the employer’s petition to determine the extent of his permanent impairment, concluded that the new medical report constituted a change of circumstances warranting a new permanent impairment rating, and reduced Bailey's permanent impairment level to 0%. The effect of this determination was to immediately end Bailey’s entitlement to further indemnity benefits. Bailey appealed to Maine’s workers’ compensation appellate division, Download Bailey appellate division decision, which concluded that the 2007 determination of permanent impairment as of the date of MMI was final, and therefore that res judicata principles barred re-litigation of that issue. The division also concluded that there existed no significant change of circumstances warranting disturbing Bailey's date of MMI. The employer appealed.

The Maine Supreme Judicial Court sweepingly (perhaps too sweepingly) affirmed the appellate division. The Court stated, “[h]ere, the Appellate Division's conclusion that re-litigation of Bailey's permanent impairment level was barred by the doctrine of res judicata is supported by the statute's plain language and legislative history.”  That broad issue was not what the parties were disputing, however. The precise issue below was whether a decrease in an employee’s permanent impairment, subsequent to the permanent impairment existing as of the date of MMI, may retroactively reinstate a cap on benefits. The Maine Supreme Judicial Court’s opinion may easily be read as establishing that any finding of permanent impairment is res judicata. MMI, however, means (in shorthand) that an employee’s anatomical condition is not reasonably likely to improve; it has nothing to do with whether an employee’s condition might worsen. The Court’s opinion strongly suggests that an injured worker may not petition for additional permanent impairment benefits even if a work-related injury worsens. But as claimant’s counsel, Jim MacAdam (for whom I once worked), has noted to me, such an outcome would be contrary to a long line of Maine precedent. Jim’s compelling example (an actual case) is of an injured worker suffering a work-related knee injury and undergoing a meniscus excision (3% permanent impairment), which leads to a partial knee replacement (10% permanent impairment), to a full knee replacement (15% permanent impairment), and ultimately to a leg amputation (25% permanent impairment). It is difficult to argue that permanent impairment should be based on the earlier phases of the injury. But such a limiting argument, if it is going to be made, should be addressed in the open. The appellate division found only that the date of MMI, and the degree of permanent impairment as of that date, were res judicata as applied to the cap. Nothing more. I certainly understand why the employee intends to move for reconsideration.

My academic interest in this case is that it continues to reveal the clunky interplay of permanent impairment and disability, two distinct concepts that resist continuing legislative efforts to bash them together.    

Michael C. Duff     

The Changing Nature of the Workforce: Wall Street Journal Essayist is a Calming Voice

            A staple of workers’ compensation journalism – and seminar topics – is the dramatic change that has been occurring, and will continue to occur, in our country’s job-makeup picture.

            At the College of Workers’ Compensation Lawyers Symposium (Phoenix, AZ, March 2017), for example, Peter Rousmaniere showed slides demonstrating how work injuries and deaths have continually declined in number, due in part to the changing character of the national workforce. One of his slides, for example, showed that in three high-risk occupational categories, sharp reductions of the same, as part of the overall employment marketplace, had taken place between the years 1950 and 2005. Another slide demonstrated impressive evidence of our country’s continuing shift from a manufacturing economy to a service economy. Mr. Rousmaniere’s complete slides can be viewed at this URL: http://www.americanbar.org/groups/labor_law/committees/wccom/archive/2017papers.html.

            In some regions, of course, even the service industry is taking a hit. The New York Times recently featured a story about how Johnstown, PA, has suffered in this regard. Rachel Abrams & Robert Gebeloff, In Towns Already Hit by Steel Mill Closings, a New Casualty: Retail Jobs (June 25, 2017), available at https://www.nytimes.com/2017/06/25/business/economy/amazon-retail-jobs-pennsylvania.html.

            Perhaps the newest issue to be addressed in this discussion, meanwhile, is how artificial intelligence may render obsolete even more jobs. See, e.g., Elizabeth Kolbert, Our Automated Future: How Long Will it be Before You Lose Your Job to a Robot?, The New Yorker (Dec. 19 & 26, 2016), available at http://www.newyorker.com/magazine/2016/12/19/our-automated-future.

             For the workers’ compensation field, an implication of this type of data – and stories – is that the fewer injuries which will take place, because of the changing workforce, is a smaller volume of cases for litigation and treatment by the system in general. While a country with fewer injuries is an inarguable good, of course, a reduced practice has practical implications for lawyers and agencies.

            Often the message that jobs are being eliminated is delivered to workers’ compensation lawyer audiences with the provocative (and perhaps mischievous) suggestion that even our professional jobs in the field are on the way out. To me, such predictions recall the Saturday Night Live skit from 1977 where a priest, played by Dan Aykroyd, eliminated a key confessor task by having it automated via with the “Penance 1000” computer. See https://www.google.com/?gws_rd=ssl#q=saturday+night+live+penance+dan+akroyd&spf=1501273234428.) The provocateurs’ suggestion is, after all, that justice – like a holy sacrament – can at some point be administered without human involvement.

            In any event, in a new Wall Street Journal article, the author, an artificial intelligence expert, portrays as exaggerated recent reports that score of workers will soon be jobless because of advances in the field. In his opinion, hype attends many of these analyses. As the subtitle of the article declares, “Smart machines will replace some jobs, but they will create many more.” Jerry Kaplan, Don’t Fear the Robots, The Wall Street Journal (July 22, 2017), available at https://www.wsj.com/articles/dont-fear-the-robots-1500646623 (subscription required).

             Kaplan asserts that the alarmists are ignoring the historical record. He notes, among other things, that 57% of the jobs under taken by workers in 1960 – e.g., office clerks, secretaries, gas pumpers, bowling alley pin-setters – no longer exist today. The alarmists recognize this phenomenon, but they argue, erroneously in his view, that the “coming wave of artificially intelligent computers and robots can do virtually any job that a human can do, so everyone’s job is on the chopping block.” Kaplan believes that this anxiety is nonsense. The core of his critique is that these innovations are simply the latest “wave of automation, and like previous waves, they reduce the need for human labor. In doing so, they make the remaining workers more productive and their companies more profitable. These profits then find their way into the pockets of employees, stockholders and consumers (through lower prices.)”

           It is the extra money that is created through automation that will create new jobs. People will now have more money for vacations, apparel, eating out, going to concerts, and the like. This foreshadows, Kaplan asserts, “increased demand for flight attendants, hospitality workers, tour guides, bartenders, dog walkers, tailors, chefs, ushers, yoga instructors and masseuses, even as artificial intelligence reduces the need for drivers, warehouse workers and factory operators.”  Kaplan concludes, “If history is a guide, this remarkable technology won’t spell the end of work as we know it. Instead, artificial intelligence will change the way we live and work, improving our standard of living while shuffling jobs from one category to another in the familiar capitalist cycle of creation and destruction.”            

 

Bronchetti and McInerney on Increased Access to Health Insurance Impacting Claims for Workers' Compensation

Paul Secunda of Marquette Law alerted me to an interesting new Upjohn Institute paper today recently posted on the Social Science Research Network authored by Erin Todd Bronchetti (Swarthmore) and Melissa McInerney (Tufts). The paper is titled, "Does Increased Access to Health Insurance Impact Claims for Workers' Compensation? Evidence from Massachusetts Health Care Reform."  From the abstract:

We study over 20 million emergency room (ER) discharges in Massachusetts and three comparison states to estimate the impact of Massachusetts health care reform on claims for Workers’ Compensation (WC). Prior evidence on the relationship between health insurance and WC claiming behavior is mixed. We find that the reform caused a significant decrease in the number of per-capita ER discharges billed to WC. This result is driven by larger decreases in WC discharges for conditions for which there is greater scope to change the payer or the location of care. Conversely, we estimate smaller impacts for weekend versus weekday admissions and for wounds compared to musculoskeletal injuries. Our findings are consistent with the reform lowering WC medical costs for employers/insurers, primarily by inducing injured workers to seek care at less costly sites. The results suggest much smaller impacts on the propensity to bill WC for a given injury. 

The findings appear to lend solid empirical support to anecdotal reports showing reductions in workers' compensation claiming when general access to health insurance is expanded. By implication, one might expect increased workers' compensation claiming when access to health insurance is restricted, but as the authors note, findings in this area have thus far been mixed.

Michael C. Duff

Uber “Injury Protection Program” or Uber Opt-Out?

This past May, Uber initiated what it calls a “driver injury protection program” for its drivers. As anyone who has read my posts knows, I am an “independent contractor” skeptic. I simply do not find credible most of the companies claiming to have independent contractors but no employees. While Alaska seems to find the employee/independent contractor analysis too difficult to perform, I’ll bet most of my readers do not. Section 220(2) of the Restatement 2d of Agency states:

In determining whether one acting for another is a servant (employee) or an independent contractor, the following matters of fact are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

For those keeping count, those are ten factors. Any second-year law student can do an analysis of these factors. I have written probably a hundred briefs using the factors. In most cases, one gets a pretty good idea, pretty darned quickly as to whether the employee analysis tips one way or the other.

What is really going on is that companies do not like to be told they cannot dictate to states who is, and is not, an employee. The great irony is that it was employers who insisted upon common law factor tests after courts in the 1940s, most notably the U.S. Supreme Court in NLRB v. Hearst Publications, Inc., began to apply the “economic realities” test – what I describe to my students as the “oh, give me a break” test. Courts saw very well the reality of the situation – that a “contractor” obviously was a servant of a company just looking at the reality of the situation. Business went into convulsions over the opinion, complaining loudly that common law tests (such as the one now reflected in the restatement provision set forth above) must be used instead of any “realities” test. Thus, many statutes—including the National Labor Relations Act, which was at issue in Hearst-- were amended to ensure that common law tests be used. But, you know how it goes, you like the test until it produces outcomes you do not like.

So, the Driver Injury Protection Program (which for many reasons is not workers' compensation), asks us to buy into the assumption that drivers are independent contractors, without the mess and bother of analysis. And, I suppose, if states are going to exempt Uber by fiat from workers’ compensation laws (leaving state constitutional “special laws” considerations to one side—see page 71 here), something is better than nothing. It is probably worth mentioning, however, that, sooner or later, the federal courts will get cases in which aggrieved “contractors” will argue that the Program is governed by ERISA. ERISA, of course, applies to the “welfare benefit plans” of “employees.” Guess what the federal courts apply in addressing who is, or is not, an “employee” under ERISA? The Darden factors, named after the 1992 U.S. Supreme Court case, Nationwide Mutual Insurance Co. v. Darden, in which a rather muscular version of the factor test was established for determining who is an employee under ERISA. (Given that the asset value of just ERISA-governed health plans is roughly $9 trillion dollars, it is pretty important to know who qualifies as an employee in that environment).

In the end, I admit to being morally intransigent on this issue. It is not that economic activity is emerging that simply defies application of Section 220(2), or similar tests. It is rather that arguments that should not even be taken especially seriously have been sold to willing politicians. To me, opt-out is opt-out and, in the end, the wrong party is very likely to bear the cost of injury.

Michael C. Duff

An Injury During Gounod's "Faust," at the Met, Prompts Litigation, Unusual New York Legislation

            New York City attorney Harvey Mars, who works with the Associated Musicians of Greater New York, Local 802, has reported on an unusual development in workers’ compensation. Under the New York Act, musicians and other performing artists were excluded from the definition of “employee” until 1986.  They were considered, instead, independent contractors.  In that year, however, such workers came under the coverage of the law and were captured within the term “employee.”  This development was and is considered a major advantage to this class of workers. 

            In the wake of a serious accident suffered by a Metropolitan Opera star, however, this advantageous status quo was threatened. During a 2011 performance of Gounod’s Faust, the mezzo-soprano Wendy White was injured when, apparently, a hinge connecting a platform to a stairway failed.  The fall caused a career-ending injury to her torso which “caused nerve damage that prevents her from singing sustained high notes.”  The incident was presumptively covered by workers’ compensation, but Ms. White has been pursuing a civil action against the Met so as to be potentially entitled to damages.

            In the meantime, legislation to amend the law was advanced in the legislature to make workers’ compensation coverage in effect a matter of election for musicians, allowing them to opt out in advance of any injury. This legislation, vigorously opposed by organized musicians, was approved but then vetoed, in December 2016, by Governor Cuomo.  (Oddly, the legislation was drafted as if retroactive in effect – it would allow Ms. White to proceed with her civil action.)  Meanwhile, an appellate court refused to dismiss the case summarily, on exclusive remedy grounds, suggesting that the original inclusion of musicians in the New York Act did not apply to “stars.”  (The author does not think much of that reasoning – or how it could ever possibly be applied.)  

                In any event, the crisis seems to have been averted by further legislation which the governor did, in fact, sign, in March 2017.  The new law limits the exception “only to Ms. White’s accident….  Such legislation, known as a ‘picture bill,’ would allow Ms. White’s suit to proceed but would not otherwise disturb the broad coverage the law extends to performing artists….”  Read this interesting account at http://www.harveymarsattorney.com/articles-publications/.

 

The ‘‘NEW GIG Act of 2017’’: A Harbinger of the End of Employee Status as We Have Known it?

I spent some time today reading through the “New Economy Works to Guarantee Independence and Growth Act of 2017” (the NEW GIG Act of 2017), a bill introduced on July 17 by Senator John Thune, Republican of South Dakota. Senator Thune asserts, “My legislation would provide clear rules so . . . freelance-style workers can work as independent contractors with the peace of mind that their tax status will be respected by the IRS.” Senator Thune describes the bill as a measure that would “add certainty to worker classification rules.” The problem is that the bill does not by its terms even apply to freelance-style workers, it applies much more expansively to “service providers,” defined very broadly under the bill as “any qualified person who performs service for another person.” (interestingly, the term is not defined until well into the text of the bill, at amended Internal Revenue Code Section 7706(2)(j)). The bill would radically alter the classification of both “employees” and “employers,” as defined presently under the Internal Revenue Code (I.R.C.), but my focus here is on the employee definition.

In sum, under what would be new Section 7706 of the I.R.C., a “service provider” might not be an employee for many statutory reasons (see proposed amended I.R.C. Section 7706(a)(1)). There would be so many ways not to be an employee (or to be a “qualified service provider”), the “requirements” are recited for about 5 pages of text, in amended I.R.C. Section 7706(a)-(d) of the bill, that when I started to write them out for this post I abruptly stopped, fearful of losing my busy blog audience mid-paragraph. There would be so many ways not to be an employee that I would be a very poor lawyer if I could not make several colorable arguments under the text that any employee was a “qualified service provider”. I will leave it to you, through inspection of the linked text, to agree or disagree with my assessment.

One thing there was not, of course—this being a federal tax bill, was a preemption provision. Unlike some of the House tort-reform bills, passed and sent on to the Senate in recent weeks (and unusually opposed by significant contingents of states-rights minded republicans, there is no generic language instructing that the bill is to have any bearing on state law--say, for example, on workers’ compensation law. It is patently obvious, however, what kind of mischief could be generated if large numbers of “employees” for state law purposes were deemed not employees for federal tax purposes. It would be but one step from that confused sequence of events to attempts to “harmonize” federal and state law. That harmonization, if aggressively undertaken, could easily wreak havoc on all laws applicable to “employees.” Is that a good or bad thing? I suppose it depends on what you think about those laws.

Michael C. Duff

New Edition of Duff's Workers' Compensation Law

I am pleased to announce that the Second Edition of my law school textbook, Workers' Compensation Law, has been published by Carolina Academic Press and is available (with Teacher's Manual from Carolina Academic Press. The book is oriented to beginning law students, or anyone else looking for a legal introduction to workers' compensation. While an essentially a complete exposition, the book is not, nor does it pretend to be, a treatise. Rather, as a law teacher embarking on his 12th year of teaching this fall, I have made a number of stylistic and substantive choices that are in accord with what I have found to be most effective in a law school classroom -- and with an eye to the Carnegie Foundation's "Educating Lawyers" publication. I should also probably mention that the book is very reasonably priced, coming in at just over a third the cost of other law school textbooks.

Michael C. Duff

 

Recent Minnesota Undocumented Worker Case Involving Workers’ Compensation

In a prior post, I noted the distinction between workers’ compensation coverage of undocumented workers and difficult remedial questions emerging when considering retaliation claims under a workers’ compensation statute. In Sanchez v. Dahlke Trailer Sales, that precise issue was presented. A Minnesota trial judge granted the employer’s motion for summary judgment arguing that because the employee, Sanchez, was an undocumented worker he could not prevail on a retaliatory discharge claim as a matter of law. A Minnesota appeals court reversed the trial court, and the Minnesota Supreme Court affirmed the decision of the appeals court.

An abbreviated version of the facts is that Sanchez, a Mexican national, overstayed his visa and obtained employment with the employer, Dahlke Trailers, by using fraudulent documents, a fact Sanchez alleged Dahlke knew. Sanchez worked for Dahlke as a body shop assistant for roughly 8 years—from 2005-2013, when he allegedly suffered a work-related injury in September of 2013. He returned to work and the claim eventually settled; but according to Sanchez workplace relations thereafter became rancorous, and during the course of the workers’ compensation proceedings Sanchez admitted to his undocumented status. In response, Dahlke indicated Sanchez could not work for Dahlke anymore “because of his legal situation.” Dahlke later delivered a letter to Sanchez stating “we are sending you home on an unpaid leave of absence. Once you provide us with legitimate paperwork showing that you can legally work in the United States, you can come back to work at Dahlke Trailer Sales.”

I omit discussion here of whether Dahlke’s action was a “discharge,” an important issue in the case, but not what I want to focus upon. I am more interested in the trial judge’s rationale for granting Dahlke’s motion for summary judgment. According to the Minnesota Supreme Court opinion:

Because Sanchez acknowledged that he could return to Dahlke if he became legally authorized to work, the district court found as a matter of law that his unpaid leave was a result of his immigration status, not his workers’ compensation claim. Additionally, . . .  the court reasoned that Dahlke was simply complying with federal law prohibiting employers from knowingly employing undocumented workers.

In a McDonnell-Douglas burden shifting regime, this would be a difficult case for an employee to prevail. Even if Dahlke had a mixed motive for sending Sanchez home on unpaid leave, it is clearly the case that Dahlke was legally prohibited from continuing to employ Sanchez. That justification simply could not hold up as pretext. Of course, motive is often a trial question, and it appears not to be clear as to whether McDonnell-Douglas burden-shifting even applies to this category of Minnesota cases. Ultimately, as the court stated, “there is reason to doubt that Dahlke ever intended to rehire Sanchez, regardless of any change in his work status.”

But there is a thornier problem. It is one thing for a state to cover an undocumented worker with workers’ compensation benefits. It is quite another for it to provide an antiretaliation remedy as compensation for post-discharge damages. Minnesota law provides:

a civil action for damages incurred by the employee including any diminution in workers’ compensation benefits caused by a violation of this section including costs and reasonable attorney fees, and for punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled. Damages awarded under this section shall not be offset by any workers’ compensation benefits to which the employee is entitled.

The well-known Hoffman Plastic Compounds case famously stated;

Under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA’s enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations. The [NLRB] asks that we overlook this fact and allow it to award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud. We find, however, that awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the [NLRB] has no authority to enforce or administer.

The response of the Dahlke court to the case’s underlying facts was that:

The workers’ compensation antiretaliation statute does not require that Dahlke continue to employ an employee after becoming aware that he is undocumented. Rather, it prohibits Dahlke from discharging an employee because he sought workers’ compensation benefits . . . The retaliatory discharge provision does not require employment, but instead focuses on of[sic] a particular motivation: the employer is liable only if it discharged the employee “for seeking workers’ compensation benefits.”

But this does not address the question. The Hoffman case reaffirmed the already firmly-established principle that backpay was unavailable to the undocumented worker in that case, not reinstatement (which has always, obviously, been unavailable). The problem is that any prospective remedy for the unlawful discharge of an unlawfully present worker is prohibited under federal labor law. Workers’ compensation remedies are retrospective in the sense that they compensate for an injury in fact sustained during employment. I see the two categories of remedies--workers' compensation benefits vs. anti retaliation damages--as being distinct, and although I have my problems with Hoffman Plastic, I do not see how state antiretaliation remedies fail to conflict with its interpretation of federal policy. (For my critique of Hoffman’s interpretation see here and here). In an upcoming post, I will discuss the very interesting problem of what happens when a state court gets a federal preemption question wrong, which may be the situation here.

Michael C. Duff

Some Worker-Centered Observations on Workers’ Compensation Non-Claiming

In reading Judge Torrey’s insightful review of Peter Rousmaniere’s excellent work on non-claiming, I was reminded of conversations about workplace culture that I have had with my students here in Wyoming. As a former blue-collar Teamster working in a very dangerous environment on the airport tarmac (a somewhat unusual background for a law professor), I was part of a work group that valued, and even insisted upon, the reporting of workplace injuries to our employer. The culture was, in part, a product of worker solidarity—we really cared about each other—but it also had something to do with a certain self-interested, Philadelphia–laboring mindset that I have often thought was beautifully encapsulated by a passage from a labor law opinion, authored by Judge Learned Hand in the 1940s, explaining that when workers:

in a shop make common cause with a fellow workman over his separate grievance, . . . [they] know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping . . .

 In short, I will support you in your grievances—including the filing of a workers’ compensation claim—if you, one day, help me in mine. Of course, this kind of sentiment is most compelling when there is a high likelihood of injury in the future. But even when that is not the case, workers may be motivated by a situation described analogously by the ADA as “direct threat”: “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If I am hurt, and cannot perform my job properly and safely, I may wind up hurting you. Much of this is common sense in a reasonably-sophisticated industrial workplace. “Bravado,” or culturally based “lawsuit-avoidance,” would make few inroads on an informed, cohesive group of employees that has been thoroughly exposed to the impacts—both medical and legal—of not reporting workplace injuries. 

Even where employees are not culturally bashful about suing, the specter of retaliation is present, and I think fear of retaliation predominantly explains non-claiming.  My co-workers and I (this is purely anecdotal, I realize) knew benefits existed, were not especially put off by the prospect of a legal battle, and were not involved in benefit coordination calculations. We feared being fired. As union density has eroded over the last few decades, the claim-protecting mechanism of a collective bargaining agreement has eroded with it. When I worked out on the tarmac, I could not (without cost to my employer) have been discharged for filing a workers’ compensation claim, because an arbitrator would likely have reinstated me under the just cause provision of the collective bargaining agreement regulating my workplace. Outside the confines of the Railway Labor Act, Section 7 of the National Labor Relations Act protects concerted activity in non-union workplaces. During my time as an NLRB agent, I was involved in a number of interesting cases in which employees effectively made workplace safety and injury complaints in a concerted manner, thereby gaining some anti-retaliation protection under the NLRA. In fact, the old chestnut of the non-union “concerted activity” cases, Washington Aluminum, involved workplace safety: employees who engaged in a work stoppage to protest a very cold workplace. The employees, who had been discharged for insubordination, were ordered reinstated by the Supreme Court. In short, subject to narrow exceptions, employees fired for complaining concertedly about working conditions are entitled to reinstatement and backpay under the NLRA. I suspect there are a good number of employees and even lawyers who are not aware of this principle.

I always believed as a blue-collar worker that workplace rights-claiming was an act of worker self-defense; and as a claimants’ lawyer I made the point of reminding my Maine worker-clients that they had likely been paying for their own workers’ compensation insurance for years through lower wages. That realization affected them. In the end, informed worker engagement may be the ultimate pragmatic counterweight to the business interests that Judge Torrey correctly observes are not in the business—nor would we expect them to be—of promoting claims.

Michael C. Duff