Workers’ Compensation Law Prof Blog

“The Tamping Iron Speaks”: Poetry Inspired by a Notorious Work Accident

            Many readers of this blog will be familiar with the name of Phineas Gage, the victim of one of the most remarkable work accidents in history. Gage, who suffered a brain injury, is reliably mentioned in just about every neurology and neuroscience book for the lay public that one can pick up.

            In September 1848, Gage was supervising workers blasting rock in preparation of a roadbed for an early Vermont railway. “Setting a blast” involved a skilled worker boring a hole deep into an out­crop of rock, adding blasting powder and a fuse, and then using a “tamping iron” to tamp sand into the hole above the powder, in effect to make a plug.

            Gage became distracted during the process. According to an accurate Wikipedia summary, “As Gage was [undertaking the process] … his attention was attracted by his men working behind him. Looking over his right shoulder, and inad­vert­ent­ly bringing his head into line with the blast hole, Gage opened his mouth to speak; in that same instant the tamping iron sparked against the rock and (possibly because the sand had been omitted) the powder exploded. Rocketed from the hole, the tamping iron‍ – 1¹⁄₄ inches … in diameter, three feet seven inches … long, and weighing 13¹⁄₄ pounds … ‍ – ‌entered the left side of Gage's face in an upward direction, just forward of the angle of the lower jaw. Continuing upward outside the upper jaw and possibly fracturing the cheekbone, it passed behind the left eye, through the left side of the brain, and out the top of the skull through the frontal bone.”

            The amazing aspect of the story of the story is that Gage not only lived, but was able to recover and live a fairly normal life for another twelve years. The loss of significant frontal lobe brain tissue altered his personality severely but did not, as many physicians at the time expected, necessarily result in his death. See https://en.wikipedia.org/wiki/Phineas_Gage. Gage did ultimately die of brain seizures caused by his injury.

            Although much has been written about Gage, a modernist poem has now been published which is perhaps in its own category – it gives the point of view of the tamping iron which both caused the injury -- and which Gage so famously clung to, after the accident and for the rest of his life. The poem, The Tamping Iron Speaks, authored by Zoe Hitzig, appeared in the June 7, 2018 issue of the London Review of Books. The poem is presumably inspired by her contemplation of the iron, as it is on display, along with Gage’s skull, at a museum at Harvard Medical School (the poet is also an economics Ph.D. candidate at Harvard.)

            For this brief reverie, see https://www.lrb.co.uk/v40/n11/zoe-hitzig/the-tamping-iron-speaks

Nonstandard Work/Work in the True Gig Workforce: An International View, A Pennsylvania View

            Oxford University's Jeremias Prassl has just published what seems to be the first book by a law professor analyzing the gig economy and its relationship to international precepts of modern employment law.  Jeremias Prassl, Humans as a Service: The Promise and Perils of Work in the Gig Economy (Oxford University Press 2018).   

            I'm on my second read-through, and one won't want to miss this item.  It's beautifully written and edited, with revelations on most every page. 

            After describing the current landscape of the gig economy, Prassl asks, "Can we protect consumers and workers without stifling innovation?"  To this query he replies, "As courts and governments around the world begin to grapple with the gig economy, Humans as a Service explores the challenges of on-demand work, and explains how we can ensure decent working conditions, protect consumers, and foster innovation.  Employment law plays a central role in leveling the playing field: gigs, tasks, and rides are work -- and should be regulated as such."

            Just a couple months before Prassl's book came out, I completed my own view of the situation as I see it from Pennsylvania.  I have posted my two papers, presented last month at my agency's educational seminar in Hershey, at www.davetorrey.info.  I have appended to each paper a bibliography for those who wish to do further reading.  These papers were largely inspired by the excellent January 2018 seminar on the topic convened by the National Academy of Social Insurance,  “Nonstandard Work and Social Insurance: Designing Risk Protections for a Changing Workforce.”  Videos of that conference, and all the presentations, are available at https://www.nasi.org/civicrm/event/info?reset=1&id=228.  

   

The Debate in N.Y. Over Law Students Appearing in Workers’ Compensation Cases

The New York Workers’ Compensation Board has proposed a rule that would permit “law school graduates and senior law students” to represent any party in interest before the workers’ compensation board “only in those type of matters that have been authorized by the Board and set forth in the approved program . . .”

“Such law interns may, under the general supervision of an attorney, file forms, [and] make applications as required, fully participate in informal adjudicatory proceedings, prepare and enter stipulations other than waiver agreements, [and] appear at hearings before Workers' Compensation Law judges in noncontroverted claims or at such hearings, other than trial hearings, in controverted claims, and prepare and file applications for administrative review and full board review, and rebuttals, as necessary. Such law interns may, under the immediate supervision of an attorney, appear before Workers' Compensation Law judges at trial hearings in controverted claims and at all hearings before board panels, and prepare and enter waiver agreements.”

Some claimants’ attorneys are pretty upset about the proposal. But the Board argues that “such amendments are necessary to decrease the total number of unrepresented claimants appearing in Board proceedings, particularly where no indemnity benefits are sought and the only issue is entitlement to medical treatment. Upon review of current internal records, the Board finds that, in 2016, there were 247 unrepresented claimants with cases pending before the Board, in which the claimant did not seek indemnity benefits.  This number is largely consistent with past years; in 2014 there were 229 such claimants and in 2015 there were 302.  It is the Board’s position that the legal assistance provided by a law school or legal intern will help many of these unrepresented claimants navigate the workers’ compensation law and the adversarial hearing process."

Claimants’ counsel very rightly argue that a law student (or law school graduate -which I assume to mean a recently graduated law student who is not yet gainfully employed or is working pro bono) could not possibly represent an injured worker as ably as experienced counsel. Claimants’ counsel also argue that the real solution is to provide adequate attorneys’ fees for all classes of workers’ compensation cases, and I agree.

As a law professor who practiced law for 11 years (workers’ compensation in Maine and labor law with the federal government), interned with the Massachusetts Department of Industrial Accidents during the second and third years of law school, and handled five SSDI cases before Federal ALJs during the third year of law school, I have a unique perspective on the issue.

Law students face an incredibly difficult job market and law schools are doing everything in their power to gain in-school experiential opportunities for their students. As a workers’ compensation law professor, I would be thrilled for my students to have in-school workers’ compensation experiential opportunities. Students would benefit from the experience generally, and might become attracted longer-term to the practice of workers’ compensation law, an interest I unashamedly try to instill in them.

It is true that law students will not be prepared to take on the most complex cases, and I would suggest that the New York Board be very explicit about defining the types of cases to which law students should not be assigned. Without even thinking too hard about it, one could come up with excludable categories involving multiple carriers on the risk, and cases involving significantly conflicting medical evidence in arcane medical areas. (Obviously, very simple cases do not go to hearing in the first place). But all of this could be managed with reasonably skilled supervision and teaching. I would strongly suggest that the Board stay in close contact with law school clinical instructors, who perform equally delicate balancing acts in areas of law that are (I say respectfully) just as complex as (or more complex than) workers’ compensation. In my law school, for example, we have clinics and practicums in Estate Planning, Trial Practice, Energy Law, International Human Rights/Immigration, Family and Child Legal Advocacy, Criminal Defense and Prosecution Assistance, and Civil Legal Services. Virtually all the students in these law school clinics and practicums have live-client contact or appear before courts and administrative agencies (many have argued before our state supreme court).  And I will note in passing that most folks know that third year medical school students engage in live-patient intern practice.  

Of course, I think attorneys’ fees should be available to practicing attorneys for many, if not all, the kinds of cases that would likely be assigned to students under the rule. And there is no doubt a real risk that state legislators might become too comfortable with the idea of unpaid legal labor once they saw it. But there is a relatively simple partial solution to that problem – the Board should establish with law schools externship (not internship) programs that would both pay students a competitive hourly wage (in comparison with other types of law school work) and simultaneously earn them law school credit. That could create some real goodwill between law students and practicing lawyers. The American Bar Association approved these kinds of paid externships in August 2016 and many law schools have adopted these programs.

As a former nine-year administrative agency lawyer (with the NLRB), I also understand that administrative officials frequently have very little control over what legislators do. At the end of the day, the official is faced with the stark reality that (apparently) hundreds of claimants go without representation. Is it any wonder that administrators would attempt to fix the problem with whatever resources they possess? I would not want to deny an injured worker some representation in what all agree can be a tangled mess of a system. One must be guided here by a higher moral compass.  

One caveat – I do not like the application of the program to “law school graduates” (which appears to be part of the rule).  I am not sure what the phrase means. One hopes the “graduates” will have passed the Bar exam since, unlike the case with students, there is no cap on the duration of such a hire. But in any event, opening such a program to that class of participant really does hint at a shadowy unbounded servitude inappropriately (in my view) sponsored by the state. I would have to know a lot more before I could agree it was a good idea.

Michael C. Duff