Friday, June 1, 2018

Identifying the Source of Recent Constitutional Challenges

             In a new article, the articulate chair of the Virginia Workers’ Compensation Commission discusses the unprecedented number of constitutional challenges we have seen the last two years or so surrounding state workers’ compensation laws.

            Commissioner Marshall first points out that the basic constitutionality of such laws was long ago confirmed by the U.S. Supreme Court. Further challenges through the decades, meanwhile, have generally been unsuccessful. It is specific provisos, he observes, that in the present day have been the principal target of attack. Most of these challenges, notably, are to markedly retractive laws. Here he reviews challenges to limited attorney’s fees in Florida and Utah, the ability of large corporations to opt out in Oklahoma, the automatic adoption of the 6th Edition of the AMA Guides in Pennsylvania, and the exclusion of agricultural workers in New Mexico (that was actually a longstanding law).  See Wesley G. Marshall, Modern Constitutional Challenges to Workers’ Compensation Systems, IAIABC Perspectives, p.6 (March 2018).

            The phenomenon of the recent constitutionality challenges has been treated in a number of publications. What is remarkable about Commissioner Marshall’s essay is his identification of five factors that have prompted or contributed to the trend.

> He first notes that in the last years of the Obama Administration, increased attention was being paid by the federal government to perceived benefit inadequacies in state workers’ compensation laws. “National attention,” he posits, “may have caused some lawyers and judges to examine laws with greater scrutiny.”

> Commissioner Marshall then notes, secondly, that the various media critiques (like the sharp assessment of state systems by ProPublica and NPR) “may have raised awareness about an unbalancing of the system.”

> Third, “fundamental challenges to the system,” reflected by such things as the radical retraction of Oklahoma opt-out, make aggressive responses more likely; here the author quotes Professor Duff: “When you have legal changes which challenge the fundamental aspects of the whole legal system, then anything is fair game.”

> Commissioner Marshall adds, as a fourth factor, “good lawyering” – groups like the Workers Injury Law Group (WILG), for example, “developed a collaborative approach to identify vulnerable system features and the best venues in which to pursue them.” The author might well have added that in a principal battleground, Oklahoma, the heroic injured worker lawyer Bob Burke threw down the gauntlet against opt out (and other overreaching), and has succeeded in having many of the most offensive provisos, and opt out itself, struck down. Great Caesar’s Ghost, there has not, in the history of workers’ compensation, been such an astonishing performance. “Good lawyering” indeed.

> Finally, as a fifth factor, Commissioner Marshall notes that injured worker attorneys have a vested pecuniary interest in vigorous challenges to benefit cuts. Cuts in benefits (a classic example of retractive legislation) “obviously have a direct impact on attorney compensation. So it seems undeniable that the pursuit of [attorney] compensation is one key consideration.”

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