Wednesday, November 28, 2018

A Part-Time Professor's Recommendations for Holiday Workers' Compensation Book Giving (The Best Books I Read, 2018)

            I boldly offer here recommendations for holiday book giving for that special lawyer or judge in your life (or, for that matter, you or some other person), who is keen to enhance his or her knowledge about our field and/or those areas with which we often interface. 

            The writer Paul Bowles once indicated that he learned how to speak Spanish by studying a new word every morning.  He’d paste the word on a slip of paper and tape it to the mirror, better to review while he shaved. My own strategy for muscling-up on comp knowledge is to utilize the bus ride to and from work as a dedicated period of reading and annotation.  It’s also a balm for our bleak and the babies-are-crying ride across the ridges and slopes above the skyscrapers here in Pittsburgh, a trip I have dubbed, at least on the bad days, the Voyage of the Damned.

            Anyway, empowered by that approach, here are books I read from which, over the past year, I learned the most. I am pleased to recommend them to you.          

            The changing nature of work is always on the minds of workers’ compensation professionals, who wonder how things like misclassification, artificial intelligence, and automation will change work, both for us and for the workers whose injuries give rise to the need for the program.  Many a wonky provocateur has appeared at seminars of late peddling anxiety about the future of work – and workers’ compensation itself.  Indeed, such talking heads suggest, even judges can be eliminated by introduction of the innovative “Justice 2000” computer! 

            In any event, three books will better help you sort the wheat from the chaff on this topic. The Fissured Workplace: Why Work Got So Bad for So Many and What Can Be Done to Improve it (Harvard University Press 2014), by David Weil, is the best place to start.  Dean Weil explains in general how work has changed over the recent decades, emphasizing the tendency of large companies to contract out all aspects of commerce, other than their core competencies.  Professor Louis Hyman digs deeper in his book, Temp: How American Work, American Business, and the American Dream Became Temporary (Penguin 2018), setting forth dual (but related) narratives accounting for the growth of staffing agencies and the glamorous business consultancies that recommend them so heavily.  As for innovations in communications, the rise of the gig economy, and the role of employment law, the best book right now for the lawyer is Humans as a Service: The Promise and Perils of Work in the Gig Economy (Oxford University Press 2018), by law professor Jeremias Prassl.

            As a lawyer, I never did figure out how to effectively cross-examine a chiropractor. Resources have always been thin on that topic, and the conventional medical literature to this day largely excludes reference to chiropractic theory and practices.  Considering feuds and lawsuits going many decades back, critical analysis of chiropractic by allopathic physicians seems nowhere to be found.  One will better be equipped to understand chiropractic generally, and how it has been and is subject to criticism, by way of Holly Folk’s, The Religion of Chiropractic: Populist Healing from the American Heartland (University of North Carolina Press 2017).  This book was also a pleasure to read – a new revelation on every page.  I did not know, for example, that the original Dr. Palmer, father of chiropractic and the namesake of the top chiropractors’ school, also sold goldfish out of a wheelbarrow.    

            On the topic of things medical, an invaluable book is Teeth: The Story of Beauty, Inequality, and the Struggle for Oral Health in America (New Press 2017), by Mary Otto.  Here the author persuasively establishes that many of our disempowered citizens are held back (and even mortally endangered) by poor dental health.  She finally provides (for me, anyway), the answer for why Medicare does not cover dental treatment and why so few dentists will accept Medicaid patients.

            For the real student of the law, who wants to know how principles of American evidence law were first derived from the cases, and comprehensively cataloged, I recommend Andrew Porwancher’s John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (University of Missouri Press 2016). Meanwhile, for the lawyer or judge who wants a concise, updated evaluation of the workers’ compensation system from the social insurance economist’s point of view, the best book is by H. Allan Hunt and Marcus Dillender, Workers’ Compensation: Analysis for its Second Century (Upjohn Institute 2017).

            There is poetry on my list of recommendations. West Virginia University (my alma mater) in 2018 republished the long modernist poem The Book of the Dead (West Virginia University Press 2018), by Muriel Rukeyser. This is an account in verse, originally published in 1938, of the terrible Hawk’s Nest Tunnel tragedy of the early 1930’s, where hundreds of transient laborers, mostly African-American, engaged in building a tunnel, perished of acute silicosis.  The new edition features a valuable contextualizing introduction by West Virginia writer Catherine Venable Moore. 


November 28, 2018 | Permalink | Comments (1)

Tuesday, November 27, 2018

Air Methods/Rocky Mountain Holdings v. Workers’ Compensation Division): The Wyoming Supreme Court Affirms Full State Reimbursement for Air Ambulance Services

Imagine the following. (A simplification of Air Methods/Rocky Mountain Holdings v. Workers’ Compensation Division).  A worker is injured in a remote Wyoming location (that is, in almost any Wyoming location). The only way for the worker to reach a hospital in a reasonable amount of time is through use of aircraft – an “air ambulance.” The lift to the hospital is expensive, $30,000 or so. Wyoming has a workers’ compensation “schedule” (don’t worry about the details) that would only result in payment of half that amount, or less (let’s keep the math simple, too). So Wyoming grants the air ambulance companies’ claims to that reduced extent. The air ambulance companies are not pleased and, says a federal district court, the state cannot limit the amount that air ambulance companies can charge injured workers for a post-injury lift because that (regulation of air transportation) is exclusively a matter of federal law – a sphere into which Wyoming may not enter. Fine, says Wyoming, then we won’t pay anything at all to the air ambulance companies for their past-due bills, if federal law says we have to pay the whole $30K per ride. Wrong, says the same federal district court (a bit later), we order you, Wyoming, to pay the whole $30K. Hold on, says the federal circuit court on appeal, you were right, federal district court, about Wyoming not being authorized to limit air ambulance companies to state-truncated fees. But federal courts can’t go ordering states like Wyoming to pay bills in these kinds of situations. Wyoming and the air ambulance companies will have to figure out how to resolve this. OK, says air ambulance companies, we’ll just renew our claims at the Wyoming state workers’ compensation administrative level. When Wyoming administrative adjudication officials “severed” the part of the “ambulance regulation” the federal courts said was “bad,” they were left with a provision that said, with respect to air ambulance services, “if transportation by ambulance is necessary, the division [another portion of the Wyoming workers’ compensation agency] shall allow a . . . charge for the ambulance service.” The Wyoming Supreme Court upheld the administration determination on severance, which led to the conclusion that the air ambulance folks must be paid in full.

This essential narrative must play out everywhere air ambulance preemption has been upheld. I’ve already argued the federal circuit court opinions will be tough to square with ERISA preemption law upon which Airline Deregulation Act preemption was originally modeled. I won’t repeat those arguments here. Eventually, the U.S. Supreme Court will get that case. The practical question at the moment is how states will react now that they have effectively been required to write blank checks for air ambulance services. The Wyoming Attorney General attempted to argue that air ambulance carriers could be required under state law to bill injured workers directly for the difference between reasonable ground ambulance charges and air ambulance charges. Because the state had not made the argument at the administrative level, the Wyoming Supreme Court, under principles of waiver, refused to rule on it. But this tells us what will come next. States—one way or the other—may take the position that they are simply not going to cover air ambulance expense. I would argue that in those circumstances an employee must have a right to sue in tort for uncovered expense. But the larger issue is the precedent of a state refusing to cover necessary medical service when the cost becomes too high. Perhaps an insurance market will emerge to service this “gap.” Regardless, a “limited” quid pro quo is always a slippery slope. But I suppose building states in mountain ranges has slippery-slope consequences. I wonder what the Swiss do.

Michael C. Duff       

November 27, 2018 | Permalink | Comments (0)

Monday, November 26, 2018

Evidence for the Workers' Compensation Judge at 2018 NAWCJ Judiciary College: FSU Law Professor Ehrhardt Roars as Usual!

            This writer, for the tenth year in a row, attended the National Association of Workers’ Compensation Judges “Judiciary College” in Orlando. The College was held on August 19-22, 2018, as always at the Marriott World Center.  Judges from more than 20 states attended.

            Attendance at the Judiciary College is invaluable for the WCJ who desires to achieve excellence in his or her profession.  The knowledge to which one is exposed – and which can be shared – has, in the field, no equivalent.

            An interesting aspect of the Judiciary College is hearing the approach of the various states as to the admissibility of evidence.  I have attached my short essay on the 2018 evidence panel presentation here:  A Note on Evidence Lectures at NAWCJ Judiciary College 2018.





November 26, 2018 | Permalink | Comments (0)

Monday, November 19, 2018

New Scholarship: Compensating Injury and Disease Caused by the "Sedentary Workplace"

           In a new article, published in the Lewis & Clark Law Review, the authors assert that employers should be liable for workers’ compensation when workers, because of their sedentary duties, sustain such injuries as heart attack, stroke, and pulmonary embolism.  The authors believe that jurisdictions which liberally construe the concept of accident (or injury) already maintain laws which accommodate recovery for such maladies, as long as expert evidence demonstrate medical causation.  The authors emphasize that making employers no-fault liable in this fashion will incentivize them to address – via providing such things as frequent breaks and “standing desks” – the growing hazard of the more sedentary workplace.  See Natalie Bucciarelli Pedersen & Lisa Eisenberg, If Sitting is the New Smoking, What does this Mean for Employers?  A Look at Potential Workers’ Compensation Claims in the Sedentary Workplace, 22 Lewis & Clark Law Review 965 (2018).

           The authors establish that the present-day workplace is indeed more sedentary than years ago.  They assert that sedentary lifestyles show a higher incidence not only of the ailments noted above, but of cardiovascular disease, cancer, and type 2 diabetes.  They argue that employers should go beyond providing wellness programs and become pro-active in encouraging on-the-job fitness regimes.  In their view, this is so because science informs us that mere exercise and healthy lifestyle outside of work, that is, the aspect of life within one’s control, is no substitute for at work activity.  They describe the energy category of “NEAT,” or nonexercise activity thermogenesis, to support the proposition that not having workers active at work in fact causes injury: “‘A body that’s sitting isn’t expending energy,’”, they explain, “‘so the signals that normally result in you moving – and which, in turn, burn calories – start to check out, molecularly bored with not being called to duty.  Meanwhile, the processes that build up fat get busier.’ …. Thus, it seems what people do in their time not devoted to exercise is quite important to maintaining their health.”  

            The authors point out that the law in a few countries has recognized this phenomenon.  For example, in Denmark, a worker now has the right to a standing desk, while the Australian and Canadian workplace safety agencies, with their “Stand Up Australia” and “Sit Kicker” initiatives, respectively, recommend that employers provide such desks and allow workers to interrupt their sitting every half hour.  The authors suggest that the OSHA general duty requirement may at some point be interpreted to oblige employers to initiate similar programs.  Some U.S. employers, meanwhile, are ahead of the curve of regulation on this point.  Allowing such innovation is not, of course, wholly altruistic.  The L.L. Bean clothing company, for its part, “has a policy of three stretch breaks a day for employees, believing that the increased production gains from the breaks make them well worth it.” 

            As for liability in workers’ compensation, the authors are well-versed with national trends, and realize that many legislatures, at the behest of business, have revolted against broad coverage of injuries and would likely do to so in the face of proposals for covering maladies sustained via sitting.  And, of course, jurisdictions which demand “unusual exertion” as part of the arising out of and/or accident test could well defeat even the suggestion that a gradual sitting injury could be compensable.  Yet, the authors argue, if employers are not no-fault liable for physical problems caused by sitting, the costs of the same are necessarily shifted to other systems, like private health insurance and Medicaid. This result is, in the authors’ view, unsatisfactory: “[P]lacing the burden for sedentary workplace harms on medical insurance undermines the core purpose of allocating the burden for workplace harms to employers: to treat them as a cost of production.”     

            The authors are correct that, in jurisdictions where the concept of injury is liberally construed, compensation systems as a matter of legal causation would potentially accommodate claims centered on a sedentary work injury.   It is when medical causation is considered that the authors’ thoughtful advocacy becomes highly problematic. Most, if not all, of the ailments which they identify are not obviously caused by work, and usually implicate pre-existing conditions and/or co-morbidities.  The causation battles which would inevitably result from frequent claims based on sedentary work make them non-cognizable from a practical point of view. 

            As for the more basic objection that one’s overall health (including the salutary effects of exercise) is largely a matter of personal responsibility, the reader will recall that the authors posit that employers not having workers active at work in fact causes injury.  That may well be, but the entire proposal, which features employers obliging workers to undertake all sorts of physical efforts during the work day, seems at once invasive of privacy and paternalistic – in the extreme – as well.  It is submitted that, whatever the gradual dangers of a sedentary job, one’s general health remains a matter of personal responsibility.

November 19, 2018 | Permalink | Comments (0)