Wednesday, January 31, 2018

Third of Four Workers' Compensation Symposia in Laramie in 2017-2018

Continuing with my series of workers' compensation symposia at the University of Wyoming College of Law in Laramie on Friday, February 9, 2018. In this session, Wyoming attorney Mike Newman and I will be discussing the forms of workers' compensation benefits corresponding to a worker's extent of incapacity. we'll explore the familiar and the not so familiar. For example, did you know that about 20 workers' compensation laws were enacted around the world between the time of the British Act in 1897 and the first American statute circa 1910/1911? Each of these statutes were wage-loss statutes. Partial incapacity benefits were calculated simply by taking (about) 2/3 of the difference between the pre-injury and post-injury average weekly wage. This simple model is a far cry from what we have now: a confusing array of benefits based on earning capacity OR wage loss OR disability.  We'll discuss . . .

Michael C. Duff


January 31, 2018 | Permalink | Comments (0)

Thursday, January 18, 2018

The Death Gap: How Inequality Kills (2017): A Physician’s Impassioned Plea for the Poor … and a Challenge to the Workers’ Compensation Community

                In adjudicating workers’ compensation cases, I have long been impressed that a major constituency of our field is the working poor.  Many, if not most, live paycheck to paycheck – just as they did in 1915, when the great crisis of uncompensated injuries and deaths led to the creation of the system.  Many others have no group or other private insurance to pay for medical care during a dispute.  True, a good number of injured workers are under Medicaid plans even before they are injured, a telling sign itself, but it is common for workers to tell me that they could not afford insurance and had not purchased any Affordable Care Act plan.

               Dr. David Ansell, a physician at Chicago’s Rush University Medical Center, addresses the experience of the working poor in his book The Death Gap: How Inequality Kills (University of Chicago Press 2017).  He asserts, and seeks to prove, via epidemiological studies, that poverty translates directly into significantly abbreviated lifespans. This assertion was certainly familiar to me: one of our judges, now retired, had grown up in straitened circumstances, and he always marveled at the long lives the parents of his mostly middle-class colleagues (like mine) enjoyed – living comfortably into their 80s and even 90s.  That wasn’t typical at all, he insisted, among the highly-leverage inhabitants of his North Philadelphia neighborhood.  

               A principal aspect of Ansell’s critique is that lack of healthcare insurance, and consequent lack of good medical care, is responsible in material aspect for this “death gap.” This is an intuitive, common-sense argument, but it is enlightening to hear a physician in the trenches of patient care tell us exactly why.  Good care, for example, can be hard to come by in poor neighborhoods, and even when patients are able to gain access to hospitals they are denied needed specialty services.  In one gun violence-ridden area of Chicago, meanwhile, no trauma center existed, and at least one gunshot victim died during his extended ambulance ride to a hospital on the other side of town.  That’s an obvious example, but harder-to-measure health hazards, leading to lower life expectancy, also exist, via the chronic stress of living in poverty. 

                Ansell, in any event, rejects the proposition that all answers about illness and mortality can be answered by the “biomedical model of disease,” which posits that “diseases [simply] arise from biological defects or imbalances in the body.” Nor, he insists, can the answer be reduced to lack of personal responsibility on the part of the prematurely diseased and deceased.  Environments generated by the structure of our society matter.  

                Ansell’s book is one of advocacy, always poised in tone but, in the end, damning of the societal forces that have helped to shorten the lives of poor African-Americans – individuals he and his colleagues treat in their practices.  These forces he collapses into the construct of “structural violence,” which he defines as “the corrosive combination of poverty and racism,” a synthesis, he charges, which has “killed millions of Americans over multiple generations in neighborhoods of concentrated poverty.”      

                Ansell provides stories of how individuals and leaders have fought back against such violence in their own lives and by way community activism.  In these chapters, the book largely centers on the Chicago with which the author is so intimate, but he could be describing several American cities. 

                One of the solutions Ansell advocates is single-payer insurance, specifically a Medicare-for-All program.  This advocacy was not surprising to me – after all, the book is a denunciation of inequality. And, indeed, a significant force towards promoting equality in precisely the realm about which Ansell writes is providing equal access to healthcare for all Americans.

                Our workers’ compensation industry has largely been hostile to a single-payer system.  Most of the arguments reflect what I consider system players worried about intrusions onto their financial and occupational turf – with the only constructive critique being that the return-to-work focus of disability and medical management (with which I have sympathy) would be disrupted.  This hostility has always been disappointing, since those of us in the field are the lead witnesses with regard to how much waste is involved in disputes over medical treatment, to wit, often endless litigation over causal connection and reasonableness and necessity of care; and amount of payment for the same.  Make no mistake – though we are said to be only a small part of the medical insurance universe, the waste involved in our system is appalling.

                Ansell doesn’t touch on workers’ compensation medical insurance, but his criticism of similar transaction costs, set forth in the context of accounts of actual patient suffering, rings true, and it buttresses the case for Medicare-for-All. 

                As to the return-to-work concern, we should also remember that European countries provide broad citizen access to medical coverage, yet still maintain workers’ compensation systems as well. These programs, notably, often focus on rehabilitation and return to work.  European plans have recently been discussed in the invaluable survey book, Ken Oliphant & Gerhard Wagner (Editors), Employers’ Liability and Workers’ Compensation (De Gruyter/European Centre of Tort & Ins. Law 2012). (I have summarized each chapter in successive issues of the Pennsylvania Bar Association workers’ compensation quarterly.)

                Dr. Ansell’s passionate work (one reviewer has called it a polemic*) presents, among other things, a thesis which is a challenge to the workers’ compensation community. The issue is whether protection of one’s own financial interests takes precedence over equal healthcare access for all citizens – and in our case, most notably, the working poor.

* See the review by Clare Bambra (7.15.2017), available at

January 18, 2018 | Permalink | Comments (0)

Sunday, January 14, 2018

The "Ending Forced Arbitration of Sexual Harassment Act" and Workers’ Compensation

The only thing preventing workers’ compensation cases from being systematically subject to mandatory arbitration is the current preference, the whim, of employers. Any state law purporting to forbid employers and employees from entering into mandatory arbitration agreements is almost certainly preempted. Mandatory arbitration of workers’ compensation cases would be terrible for injured workers. Major studies of arbitration awards demonstrate workers fare significantly worse in arbitral forums. Moreover, under the Federal Arbitration Act there is no substantive appeal from the award of a private arbitrator.

Fortunately, there is a glimmer of hope on the horizon. As was widely reported early last month, a bipartisan group of lawmakers, including Senators Gillibrand of New York and Graham of South Carolina, introduced legislation on December 6, titled the Ending Forced Arbitration of Sexual Harassment Act, to prevent employers from enforcing mandatory arbitration agreements in instances where their employees allege workplace sexual harassment or gender bias. The legislation was prompted by a tsunami of recent, well-publicized workplace sexual harassment allegations. It has become clear that many of the claims that might have been litigable in civil lawsuits could never be brought where an employee had signed an arbitration agreement. The likelihood for underdeterrence of sexually unlawful conduct seems high where, as is the case in a private arbitral forum, damages are significantly lower, employers have typically unilaterally devised the adjudicatory structure of proceedings, and arbitrators and employers are often together “repeat players” in arbitration (not to mention that arbitrators are often directly compensated by employers).

Why is the Ending Forced Arbitration Act so significant? The premises of the Act are obviously that arbitration is not adequate to vindicate the policy of compensating individuals for sexual harassment; and that the policy objectives of sexual harassment law exceed those of the more abstract (and some like me would say dubious) policy supporting compulsory arbitration of employment (or even tort) claims. Once this kind of questioning has begun—and it will begin, either here or elsewhere—it will likely be infectious. The era of blind application of the FAA to nearly all labor and employment claims – a freight Congress obviously never meant for the FAA to carry – may be underway. The only plausible legal justification for the absurd expansion of the FAA has been that Congress has remained silent in its wake. Once Congress speaks through establishment of an exception, however, it will be forced to explain, and to make currently absent analytical distinctions. Why should sexual harassment claims be exempted from the FAA and not racial harassment claims? Why should a federal arbitration statute from the 1920s trump 21st century state tort law?

And it is the federalism question in the final line of the last paragraph that gives me most hope for workers’ compensation. If there is an area of civil law that so firmly evinces the historical state police power than workers’ compensation law, I am unaware of it. It is for this very reason that the most aggressive federal employment statute, in terms of preemption—the Employee Retirement Income and Security Act of 1974 (ERISA)—explicitly carves out workers’ compensation plans from its coverage. Let us hope that Congress is finally coming to its collective senses. The answer to putatively overcrowded dockets and allegedly overzealous plaintiffs was never practical elimination of the rule of law.    

Michael C. Duff 

January 14, 2018 | Permalink | Comments (0)

Thursday, January 4, 2018

Portable Benefits: Carrying Less to a Vanishing Point?

The problem with the idea of portable benefits – employee benefits (including workers’ compensation) provided across employers to putatively, radically different workers in the “gig” economy – is pretty simple. Seen in its best light, the idea is a half-measure crafted because we lack the political will to provide explicitly adequate benefits in changing social circumstances. Seen in a worse light, the idea represents naked acquiescence to well-heeled employers who have decided, unilaterally, that Section 220 of the Restatement Second of Agency, which contains the traditional common law test for whether an individual is an employee or an independent contractor, is too hard to apply and leads to inconsistent findings of employee status, rendering business planning unpredictable. Seen in its worst light, the idea is just another way station—with opt-out and compulsory arbitration—along a road to poverty, paved with illusions of absolute employer liberty, to the ineluctable detriment of working people.  

A long time ago, someone told me, in only slightly more polite language, that it was folly to give a former Teamster (like me) a Harvard Law degree. Time will tell. I do confess to a proclivity for asking inconvenient questions. Like these. Is the goal behind portable benefits the provision of a standard of living adequate to sustain life? Or is the goal simply to provide a vehicle for employers to pay employees the least possible benefit that our present society can, in remotely good conscience, countenance?

I am a great fan of the late William James, the famous pragmatic philosopher. James assessed truths by preliminarily assessing the “cash value” of seeking them. Some questions may not be worth asking, nor their answers worth knowing. But I think that with respect to workers’ compensation—or any of its proposed substitutes—the two questions possessing the greatest “cash value” are 1) Can we agree on the definition of an adequate benefit? How much does an injured worker adequately need to eat and have lodging? (we can start there); and 2) Once we have the answer to 1), are we willing, as a society, to provide that amount?

I am deeply suspicious that we purposefully avoid answering the first question (either procedurally or substantively) because we fear how the more powerful elements in society may answer the second.

So, to proponents of “portable benefits,” I ask, first, how much, precisely, will the package pay to injured workers in terms of indemnity and medical payments? (In fact, I would ask the same question as it relates to any manner of being injured at work, including being sexually or racially harassed or discriminated against). Saying that you do not know is unacceptable, since we now have a system which, though inadequate, is fairly well understood in terms of what must be fixed. Portable benefits advocates must also answer a second question. How do you prevent “non-portable” employers from masquerading as "portable" employers in an all-too-familiar race to the bottom? Put another way, how would you prevent regular employees from being misclassified as "gig" employees. We are presently experiencing a contagion of misclassification in the current employment law regime and I am not confident that a "gig" regime will be any less resistant to moral hazard. 

Inconvenient questions, I know. But this Teamster will not give up on benefits floors before having the answers. 

Michael C. Duff   

January 4, 2018 | Permalink | Comments (0)