Workers’ Compensation Law Prof Blog

An Account of the Lead-up to and Enactment of Workers’ Compensation in Great Britain, 1833-1906

            The leading historian of Great Britain’s experience with workers’ compensation laws (and its predecessor laws) is the scholar P.W.J. Bartrip, who authored multiple books on the subject. The texts best known to me are Bartrip & Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833-1897 (Oxford University Press 1983); and Bartrip, Workmen’s Compensation in Twentieth Century Britain (Gower Publishing Co. 1987).

            E.P. Hennock, of the University of Liverpool, however, also wrote on the subject. I have recently prepared a summary of his account of the lead-up to, and the enactment of, British workers' compensation. It is derived from his book, The Origin of the Welfare State in England and Germany, 1850-1914 (Cambridge University Press 2007). I have posted my Cliff’s Notes-style summary at www.davetorrey.info.

            Here is a top-six list of items that are truly remarkable about the British system, which is generally said to have existed from 1897 to 1948:

1.  The creation of workers’ compensation in England did not feature a compromise under which injured workers automatically gave up the right to sue in tort. No so-called “Grand Bargain” attended the creation of no-fault liability. Employer liability theoretically endured, though a worker who accepted workers’ compensation elected out of any tort remedy against the employer.

2.  Disability and death benefits only were paid – there was no medical compensation prescribed by the law.  (Employers, however, could make such payments voluntarily and often controlled medical treatment.)

3.  No agency was created devoted exclusively to ensure enforcement of the law.

4.  No insurance mandate existed.  Employers could insure through a mutual, a commercial enterprise, or self-insure.

5.  An employer could "contract-out" of the system by setting up a special fund and obliging workers, as a condition of employment, to accept benefits from the fund and waive any right to workers' compensation or damages in tort.  However, such plans were rare, as the law required such funds to provide the same level of benefits as the workers' compensation law.

6.  Litigation was robust from the outset, and disputed cases were heard in general county courts, not before an arbitral panel or other special tribunal.  

             For a present-day account of the system, in the wake of its demise in 1948, I recommend Richard Lewis, Employers’ Liability and Workers’ Compensation: England and Wales, in Ken Oliphant and Gerhard Wagner, Employers’ Liability and Workers’ Compensation (De Gruyter/European Centre of Tort & Insurance Law 2012).  Professor Lewis’ chapter of the Oliphant & Wagner book can be read online. See http://orca.cf.ac.uk/26855/. 

 

Holly Folk’s, The Religion of Chiropractic: Populist Healing From the American Heartland (UNC Press 2017), Immerses the Reader in the Origins of the Field (Part 3)

            While Folk’s book concentrates on the origins of chiropractic, which are found in the late nineteenth century, the author helpfully explores, in her final chapters, the modern history of the field and how it has evolved in the decades since World War II. 

            The author, in this respect, treats the American Medical Association’s efforts to portray chiropractic as a deviant pseudoscience.  Although successful in the 1950’s, by the 1970’s, chiropractic gained important victories.  By 1974, all states licensed chiropractors, chiropractic colleges could be accredited by the Federal government, and Medicare started to pay for chiropractic treatment. In 1992, notably, chiropractors began being commissioned as military healthcare providers.  The author also notes that “the acceptance of chiropractic into American healthcare was abetted by increased dialogue between some medical doctors and chiropractors.”

            Folk also reviews a renowned Illinois case where a chiropractor in that state led a team of his colleagues in filing an anti-trust suit against the AMA.  In 1987, the chiropractors prevailed, with the federal judge “focus[ing] on the organized campaign the AMA had run against the chiropractic profession, which was in violation of anti-trust law through the Sherman Act.”  The Court of Appeals affirmed (1989) and the Supreme Court (1990) denied certiorari.

            In her conclusion, Folk seems sympathetic to the critique that few studies exist on the efficacy of chiropractic. Indeed, some assessments may be found which discredit chiropractic, including those from the Cochrane Collaboration. These studies debunk the idea that conditions like asthma, allergies, or menstrual pain can be treated via manipulation.

            The author posits, “chiropractic is now believed to have a poor track record for healing the structural damage to the spine.  Rather, the treatment seems to be most effective for self-[remedying] conditions, like most cases of lower back pain.”  She also posits, “chiropractic treatment may actually be a form of ‘condition management,’ whose real benefit is helping patients wait out the natural healing process. Such an assessment is not too different from what chiropractors claim to be doing.  A minimally invasive touch-based therapy administered in time of acute pain may affect the body’s overall stress response and improve subjective well-being:  in this respect, chiropractic is true to its claim that ‘it works.’”

            The reader of Professor Folk’s book will not be equipped with better tools to cross-examine the chiropractor as to the mechanics of treatment, the mysteries of chiropractic signs (many of which have exotic names), or challenge the doctor with regard to duration-of-disability opinions.  Yet, the reader will be superbly briefed in understanding chiropractic philosophy and where it came from.  As Folk insists, “to really understand chiropractic is to know its origins, terminology, scientific theory and therapeutic logic in the way that chiropractors themselves do.”

Holly Folk’s, The Religion of Chiropractic: Populist Healing From the American Heartland (UNC Press 2017), Immerses the Reader in the Origins of the Field (Part 2)

            Folk’s book, full of details and historical and cultural context, provides an epiphany with every turn of the page. The reader will, in this regard, recognize many original theories and principles of chiropractic which have survived to the present.  The reader will also visit the aggressive pushback by allopathic physicians against their chiropractic competitors (lawsuits were rampant) and the similarly still-surviving antipathy (see above) between the two groups.   

            Folk persuasively asserts that the origins of chiropractic can be traced to other folk practices of the day, like magnetism.  (Indeed, D.D. Palmer, before he discovered chiropractic, was a “magnetic” healer.)  Chiropractic, like other competing alternative therapies, was a method of care embraced by many in the late 19^th century who could not accept central tenets of modern medicine, particularly the idea that germs, and other pathophysiological phenomena, caused illness.  Many people, particularly in the Midwest, and in rural areas, rebelled against doctors as elitists. D.D. Palmer, indeed, “capitalized on anti-authoritarian sentiments by presenting his treatment as an alternative to those of a dangerous, elite medical establishment.”

            The Palmers, meanwhile, elevated the idea of manipulating the spine to the level of metaphysics. They asserted that a “vital force,” that is, an “autonomous, purposeful force … in the universe,” is transmuted, via manipulation, to produce curative effects relative to human illness.  Chiropractic had a resoundingly spiritual outlook, which leads Folk to make reference in her title to the “religion of chiropractic.”

            The “vital force” effect was not limited to musculoskeletal pain.  Indeed, spinal misalignment allegedly caused any number of maladies.  Folk quotes D.D. Palmer as declaring, for example, “Cancers are but the symptoms of impinged nerves….  Cancers are the result of nerves being impinged in the foramen.”   

            The reader will also learn of the traditional view, highly offensive the profession, that chiropractors are poorly educated and operating on the margins of professional respectability.  Here, Folk brings up the drama, Come Back Little Sheba, first a play, later a movie, starring Shirley Booth.  Burt Lancaster in that film plays a chiropractor who is married to Lola, the Shirley Booth character. “Doc’s” life is depicted as having been ruined by getting Lola pregnant, marrying her, and being obliged to drop out of medical school and instead become a chiropractor.  As it turns out, Lola miscarries.  His personal and professional life thus ruined, Doc turns bitter and becomes an alcoholic binger. 

            The Palmers were colorful individuals and geniuses at marketing their newfound healing practice.  Folk, in this regard, refers to the Palmers’ relentless self-promotion as undertaken in an aggressive “entrepreneurial style.”  They advertised heavily, had their own press operation, and published periodicals full of testimonials.  Some of this promotion was even reduced to playful verse:   

No drugs or poisons deadly,
With their disastrous medley,
Into your stomach should be poured;
But by manipulation deft,
Not an ache or pain is left,
And your former vigor is restored.

Holly Folk’s, The Religion of Chiropractic: Populist Healing From the American Heartland (UNC Press 2017), Immerses the Reader in the Origins of the Field (Part 1)

            Prior to Act 44 of 1993, which brought to Pennsylvania workers’ compensation our regime of medical cost containment, chiropractors frequently testified as witnesses in workers’ compensation cases. They would most typically testify for the injured worker, as the treating physician, but a few chiropractors undertook independent medical exams (IMEs) as well.  

            As a new defense lawyer, I found it challenging to try to prepare for a principled cross-examination of a treating chiropractor.  During law school, we had been trained to go to Falk Medical Library, at the University of Pittsburgh Medical School, to undertake research.  There, we could use the hardcopy medical literature indexes to learn about unfamiliar medical issues.  By doing so, we would better equip ourselves, or our bosses, with questions for cross-examination.  When I tried to find materials at Falk about chiropractic treatment, studies about chiropractic, examination “signs,” and the like, I came up empty.  Meanwhile, I could find little easily-accessible information by traditional research methods.  

            I knew, of course, the basics: chiropractic had been subject to discrimination in the past, including under the Pennsylvania workers’ compensation laws.  Yet, in the early 1980’s, our Supreme Court had directed that such care was to be compensated and included on employer lists of approved physicians.  I also knew of the familiar difference between “straights and mixers.”  Straights devoted themselves almost exclusively to manipulation, while mixers tended to integrate their care with other modalities, such as counseling about diet and the use of vitamins.  And, of course, I knew of the great hostility that existed for decades between general physicians (allopathic doctors) and chiropractors.

            Since I have been a judge, I observed that hostility articulated dramatically by a neurosurgeon who carries on a minor side business in IMEs.  Challenged by claimant’s counsel that his opinions were far different than the treating chiropractor, the doctor declared, in his deposition, “Please, do not degrade the institution of American medicine, and its great achievements, by using, in the same sentence as ‘doctor,’ the word ‘chiropractor.’”

            For the last two decades, a phenomenon has occurred – at least in my region, chiropractors rarely testify anymore.  A major reason is that the 1993 introduction of utilization review seemingly ended what many carriers viewed as overtreatment by chiropractors.  In this regard, it was not uncommon, before 1993, for such providers to prescribe, for a back-pain sufferer, three to five adjustments per week. Such prescriptions could never survive utilization review.  In addition, at least at the time, it was said that chiropractors felt that, for the treatments that they were able to provide, the Pennsylvania fee schedule (paying at 113% of Medicare), compensated them fairly.   

            Of course, other reasons exist for why chiropractic involvement in litigated cases is rare. Litigation itself has diminished in the wake of compromise settlements (authorized in 1996).  Further, top-notch physiatrists, orthopedic surgeons, and neurosurgeons now hang out IME shingles.  Injured worker lawyers want, and need, experts with similar punching power.

            As a new lawyer desiring more information about chiropractic, I would have benefited from Holly Folk’s new book, The Religion of Chiropractic: Populist Healing From the American Heartland (2017).  Folk, who teaches liberal studies at Western Washington University, concentrates on the historical origins of chiropractic and the profession which, a little more than a century ago, soon blossomed around it.  Folk’s study is largely an account of chiropractic’s founders, D.D. Palmer and his son, B.J. Palmer, of Davenport, Iowa.  Veterans of the field will, of course, recognize Palmer as the school usually associated, in the modern day, with the better-educated chiropractic professionals.  It was none other than these two creators of the field that founded the school. 

Injured Worker Became Involved in Virginia Politics in Wake of Uncompensated Injury

            In the late 1960’s and early 1970’s, workers’ compensation reformers advocated for a uniform extraterritoriality provision for state workers’ compensation laws. Their goal was to ensure (1) that no worker who sustained an injury would ever be denied a forum in which to prosecute his or her case, and (2) that games-playing would not defeat the effort. In the end, unfortunately, only a few states adopted the law, including Pennsylvania, Delaware, Kentucky, Alabama, and New Mexico. Unfortunately because in Pennsylvania the law has been a success, and it defines the reach of the law with certainty.   

            Many states have extraterritoriality provisos other than that of the model law but, surprisingly, New York and New Jersey keep their rules in the court precedents.

            Extraterritorial jurisdiction, in any event, does indeed have its vagaries. A worker’s frustration with the same has now made a remarkable headline. See Daniel Marans, How A Literal Shock Inspired A Former Marine To Run For Office As A Democratic Socialist: A workplace injury and its aftermath were a political wake-up call for Virginia state delegate-elect Lee Carter, Huffington Post (Nov. 12, 2017), https://www.huffingtonpost.com/entry/lee-carter-delegate-democratic-socialist_us_5a074548e4b05673aa5997fd.

            As reported in the Huffington Post, the newly elected Manassas, VA, state delegate, Lee Carter, first became interested in politics after his back injury claim (caused by an electric shock) was dismissed by the Virginia Commission for lack of jurisdiction. Carter, an ex-Marine in his late 20’s, prevailed last week in his run as a Democratic Socialist, unseating a conservative Republican.

            Carter, whose residence is in Virginia, was working for his Georgia-based company in Illinois when he sustained his injury.  He incurred medical bills and, apparently, three months of disability. For reasons not stated in the article, his employer’s workers’ compensation carrier denied his claim. (Group health insurance apparently paid many of his medical bills).

            Carter, we are told, “decided to file a workers’ compensation claim against the company with the state of Virginia…. He reasoned that while Illinois was a resolutely pro-worker state and Georgia was equally pro-business, Virginia was the ‘Goldilocks’ option ― the perfect balance that might make the Bella Rose Group likely to strike a deal with him…. ‘I figured let’s go with the least contentious state,’ Carter said.”

            Of course, that is not how any type of legal system works and, indeed, “Carter called at least four Virginia-based lawyers in search of representation but they all refused, citing the complicated question of whether his claim was even in Virginia’s jurisdiction.”

            In the end, the Commission dismissed the case for lack of jurisdiction, finding that Carter’s contract was made in Georgia, and that the employer had no place of business in Virginia. (Carter, notably, told the reporter that the four lawyers did not suggest that he prosecute his claim in a different state – which is an unlikely omission; meanwhile, Virginia lawyers have told the reporter that the agency’s ruling is reasonable under the law.)

            Carter’s problems became more complicated in the wake of his injury: after he returned to work, his employer was unable to accommodate his part-time schedule and he was ultimately fired – an act which Carter characterizes as retaliation for pursuing, however fecklessly, workers’ compensation.

            Indeed, “the first bill Carter plans to introduce in Richmond is a measure to strengthen protections for workers against employer retaliation for filing workers’ compensation claims…. ‘It’s kind of messed up,’” he told the reporter, "'that it was easier to run a two-year election and get 11,000 people to vote for me than it was to figure out the workers’ compensation system ….'”       

            Huh? The frustrating aspect of this article is that lawyers gave Carter advice that he did not have a cognizable claim in the state.  He chose to ignore this counsel, prosecuting his claim on the same theory as did some fairy-tale heroine in choosing her most preferred bowl of porridge. 

            And, of course, instead of advocating for a strengthened anti-retaliation law, our own hero should now be arguing for Virginia’s adoption of the model extraterritoriality statute.  

 

           

           

The Opioid Abuse Crisis and the Marketing of Oxycontin (Recent New Yorker Article)

            Last week, in open court, I watched a CCTV videotape of a well-dressed, middle-aged man enter a bus, take a seat, and promptly take consecutive hits of Fentanyl-laced heroin. Within moments he experiences a massive, though apparently silent, fatal reaction and dies on the spot.  His head thereupon hangs between his legs until concerned passengers notice and come helplessly to his aid. (That this is what the video showed was not disputed.)

            I didn’t, and don’t, know all of this individual's circumstances, but the shocking visual was just one more, highly vivid, example of the opioid abuse crisis that is so often in front of us in the workers’ compensation field.   

            A quick but thorough history and analysis of the role Oxycontin in the crisis can be found in a recent New Yorker article, Empire of Pain: The Sackler Family’s Ruthless Promotion of Opioids Generated Billions of Dollars – and Millions of Addicts (10.30.2017 edition), written by Patrick Keefe.

            As obvious from the title, a focus of the article is how Oxycontin was marketed.  On this point, the author quotes a lawyer characterizing how sales representatives pushed the drug in Kentucky. Purdue Pharma allegedly “pinpointed ‘communities where there is a lot of poverty and lack of education and opportunity …. They were looking at numbers that showed these people have work-related injuries, they go to the doctor more often, they get treatment for pain.’”

            Keefe’s article can now be read online for free. 

            Much has been written on this issue (the author helpfully cites what seem to be the leading texts), but Keefe’s focus on the marketing angle and the role of Purdue Pharma's owners is striking. See https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain.

 

 

A Note About the 2017 Iowa Amendments: The Shoulder as Subject of Scheduled Loss

            It is old news now, but the pro-business changes to the workers' compensation law in Iowa enacted, on March 30, 2017, are quite remarkable. These changes, found in H.B. 518, affect both benefits and procedure.

            Among the most remarkable changes were (1) the now-familiar creation of a rebuttable presumption that drugs or alcohol in one’s system caused the injury; (2) making partial disability awards, payable upon a worker’s return to work, based strictly on impairment, without reference, as before, to earning capacity; (3) inclusion in the disability analysis of the injured worker’s remaining work years as a factor to evaluate disability; (4) clarifying that an employer faced with a claim is not liable for its employee’s preexisting, previously compensated injuries; (5) disallowing lump sum commutations without the consent of the employer; and (6) prohibiting injured worker lawyers from collecting fees out of claimant’s disability checks when benefits have been voluntarily paid. See NCCI Legislative Activity Report, pp.1-7 (Apr. 7, 2017), https://www.ncci.com/Articles/Documents/II_LegislativeActivityWeeklyReport_2017-13.pdf. See also Clyde McGrady, Iowa Passes Bill to Slash Workers' Comp Benefits, CQ Roll Call Insurance Briefing, 2017 WL 1149131 (Mar. 28, 2017).

            Of particular interest – certainly to a Pennsylvanian like myself (we have a wage-loss system) – is yet another change: the “scheduling” of injuries to the shoulder, making benefits payable, based upon percentage impairment, for a maximum of 400 weeks. No industrial disability analysis is employed. This is a clever, yet simple, way of reducing litigation and benefits – simply take a whole category of injuries … and establish proxies for the same.

Wyoming Workers' Compensation Symposium #2

I'm pleased to announce that the second of our four University of Wyoming College of Law Symposia to be conducted during the 2017-2018 school year will be held on Friday, November 10, 2017 from 1-2:30 pm Mountain Time in Laramie, Wyoming. The event will be live-streamed and is free, though registration is requested. The topic of the presentation will be Scope of Coverage and Causation in Workers' Compensation Claims. We're excited to be continuing the series and hope you can join us.

I’ll be appearing with Wyoming practitioner Justin Kallal, a 2001 graduate of the University of Wyoming College of Law. https://kallallaw.com. The format will consist of a 40-minute presentation by me of treatise/hornbook law followed by a presentation by Mr. Kallal on nuances of Wyoming law. We will try to reserve 10-15 minutes at the end for questions.

The event site is here: http://www.uwyo.edu/law/events/workers-comp-symposium/index.html.  Registration is requested.

Michael C. Duff

 

 

 

A Sociologist Takes on Legal Financial Obligations: "A Pound of Flesh" (2016)

                Lawyers and mediators in the workers’ compensation system struggling with settling cases often encounter major roadblocks: legal obligations from other spheres of the injured worker’s life. These obligations must be satisfied before the settlement can be approved – or sometimes even considered. The ubiquitous legal obligation in my state, Pennsylvania, is the child support arrearage. If the proposed settlement (or award, for that matter), is $5,000.00 or more, that arrearage must first be addressed.

             Another class of legal financial obligation, or “LFO,” can also impede negotiations. These are the obligations that are imposed on criminal defendants in addition to jail time. They regularly include fines, court user fees, restitution, collection charges and, if in arrears, interest on all of these. In my practice, I have, only a few times, run into an LFO in this category affecting a workers’ compensation settlement. However, many of the working poor (a major constituent in the litigated cases in my state), are said to be saddled with these obligations.

            If such individuals have criminal pasts and have been penalized with such sanctions, so be it. Yet, as sociologist Alexes Harris points out in her new book, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (Russell Sage Foundation 2016), the enforcement of such sanctions on the poor can prevent them from ever getting back on their feet and restored to employment and citizenship. This is so because they were poor in the first place, come out of jail penniless, and then struggle to make ends meet. The upshot of this highly leveraged situation is that are simply unable to meet their LFOs. They are then relentlessly summoned back into court, further fined, or even imprisoned for failure to pay.

            The author asserts that the poor who have committed criminal acts are in effect permanently punished. She compares the situation to the debtors’ prisons of old or, more chillingly, to institutions such as the Angola Correctional Institution in Louisiana, where poor African-American convicts would labor on prison farms.

             A Pound of Flesh is an excellent tour de force of the subject for lawyer and judge. Of particular interest is how the author observed court hearings on LFOs. Of further interest are her interviews with prosecutors, public defenders, judges, and the all-important court clerks in charge of enforcing these obligations. The author disapproves of the considerable discretion that such “street level bureaucrats” often exercise in the determination of who is excused from payment – and who must be returned to jail.