Sunday, December 30, 2018

First Draft of Wyoming’s Workers’ Comp Air Ambulance Bill: Preempted and Unconstitutional?

That didn’t take long! Back on November 27, I predicted that, in light of the Wyoming Supreme Court’s opinion in the Air Methods/Rocky Mountain Holdings case, see the recap here, states would begin taking the position that they would simply not fully cover air ambulance expense. Just about a month later, Wyoming legislators have now introduced a bill that “controls all payments for air ambulance services.”  I argue in this post that the bill is (a) probably preempted on its face under the Airline Deregulation Act and (b) violates the Wyoming Constitution. It also, in my opinion, represents the dangerous precedent of a state simply refusing to pay for necessary medical first aid in a way that fundamentally breaches the workers’ compensation quid pro quo. (This is not a close question).

According to the bill:

Payments under this section will be according to a schedule established by the director taking into account the miles traveled and the type of aircraft used. The director shall attempt to approximate twice what Medicare would pay for air ambulance services in determining the payment schedule.

The bill would also require an air ambulance provider to take the double-Medicare rate or leave it:

Any provider of air ambulance services may voluntarily submit a claim for payment to the division within forty‑five (45) days of providing the services. If a provider submits a claim for payment to the division, the division shall review the claim, and if the services are determined compensable, the division shall offer to pay the claim in accordance with [the limitations set out previously]. Payment shall be conditioned on the provider's timely voluntary agreement to accept this payment in full and final satisfaction for all services provided and that the provider will not bill the injured worker. Failure of any provider to accept the division's conditional offer of payment within thirty (30) days may, in the division's discretion, be considered a rejection of the payment offer . . .

If the requirements for payment of services under [the preceding] paragraph . . .  are not met, the division shall make no payment to the provider of air ambulance services.

Under the bill, in the event the air ambulance carrier won’t accept the double-Medicare rate that the director of the agency “will attempt” to pay, the injured worker can apply to the administrative agency for direct payment of that same amount and “may, but is not required to, use any payment received under this section for payment of air ambulance services.” And, just so everyone knows where they stand, none of the administrative determinations as to the (non) compensability of air ambulance services would be subject to further review of any kind:

The division's decision as to whether to make payment under [the applicable provisions] shall not be subject to further administrative or judicial review, and the division's payment under [the provisions] shall fully satisfy any payment obligation of the division in regard to air ambulance services.

Finally, the air ambulance companies are expressly authorized under the bill to sue injured workers directly for the “balance” – the difference between the workers’ compensation regulatory scheduled maximum and the full charge for the air ambulance service:

The limitation in [an earlier portion of the section] requiring that fees or portions of fees for injury related services or products will not be billed to or collected from the injured employee shall not apply to fees for air ambulance services controlled by the federal Airline Deregulation Act of 1978.

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December 30, 2018 | Permalink | Comments (0)

Thursday, December 27, 2018

6th Edition of the AMA Guides, Legislative Supremacy, and the 2018 that Wasn’t

Despite protestations to the contrary, workers’ compensation has everything to do with “fault.” It is just not the cabined, microcosmic fault we think of as “tort.” If workers work, workers will be harmed and killed. We choose not to ascribe the harm caused (assuming it was unintentional) to individual employing actors. But because most harm that occurs in the workplace is macrocosmically foreseeable, ideas of fault are unavoidable. And, indeed, were it not for the growing “specter” of tort (or proliferating employer liability laws) in Europe, the British Commonwealth, and the United States, brought on by the industrial revolution at the end of the 19th and beginning of the 20th centuries, workers’ compensation as we know it would never have been implemented. So workers’ compensation very directly stands in the shoes of tort and it is this relationship that renders it more than a merely-discretionary, “welfare” benefit that may without real legal controversy be provided or taken away for any legislative justification a court might deem “rational.” (I am, of course, referring to the ideal system).

But the preceding paragraph presumes that tort itself may not be swept away for any formally rational legislative reasons—as I believe the early 20th century American workers’ compensation architects and courts assumed. After all, if the Legislature has the authority (bounded only by a sweetheart “rational basis” review by courts) to reduce or eliminate tort, why could it not substitute the 6th Edition of the AMA Guides for the 4th?  What was (or is) the constitutional theory that would prevent steep reductions in workers’ compensation benefits? At the heart of the 6th Edition controversy is the question of legislative supremacy. May the legislature do anything it wishes?

As a quiet 2018 implicitly revealed, there are really only a handful of constitutional theories that may presently be deployed in an attempt to scrutinize legislative power modifying workers’ compensation statutes. (The year of the constitutional challenge, in other words, required more theories). Federal theories are generally unavailable. 14th Amendment Equal Protection and Due Process challenges almost never succeed. State constitutions offer more possibilities under state equal protection, due process, right to remedy, open courts, right to trial, and—in Oklahoma at least—“special law” theories. But state analogues of the federal Equal Protection and Due Process clauses tend to be similarly cramped: unless a fundamental right or suspect classification is involved judicial review amounts to a plaintiff attempting to show that a workers’ compensation law is both hypothetically and in fact irrational. As I have mentioned elsewhere, the Florida and Kansas constitutions contain quirks allowing for legal attacks unavailable most places in the country. But ultimately, the “quid pro quo” in the breach is a description in search of a constitutional remedy. Some of these vicissitudes derive from the hybrid nature of workers’ compensation—it is both a bane to workers who clearly would have had a meritorious tort claim at the time of establishment of the quid pro quo (beginning in about 1911) and a boon to workers who would not have had a meritorious claim at that time. For this reason, state legislatures get away with treating workers’ compensation like discretionary “welfare” benefits, which they are not.

We comfortably (and somewhat mindlessly) consign judicial review of workers’ compensation statutes to lowly rational basis review unless a legislature seriously entertains a scheme that threatens to completely cut off rights to remedies for injury (think opt-out, compulsory arbitration, occupational disease limitations periods, categorical exclusions of entire classes of claimants). At those moments of crisis, we will tiptoe in the direction of serious discussion of the permissible lower boundaries of workers’ compensation benefits. But the moment passes, and so do we.

My blue collar background and bias makes me cringe at the notion that constitutional protection of life and limb was ever meant by the founders to be so whimsical. Property is important, and so is my right arm. Politics can make strange bedfellows and I find myself more and more influenced by “Lockean proviso” objections of Second Amendment scholars. I accept that a precondition of agreement to join civil society is a guaranty of personal security. I am insecure when an intruder enters my home. And I am insecure in a world in which people doing dangerous things know in advance that they can harm me for very little cost. I’ll be writing more in upcoming months about the unenumerated rights that I think were being hinted at (if not quite identified) in the seminal 1917 workers’ compensation case, New York Cent. R. Co. v. White:

it perhaps may be doubted whether the state could abolish all rights of action, on the one hand, or all defenses, on the other, without setting up something adequate in their stead. No such question is here presented, and we intimate no opinion upon it.

Why might it be doubted? I am not sure “due process” or “equal protection” can answer the question. But something will. We continue to parse this Zen-like utterance, this question the court raised, but declined to answer. White’s doubt lives on. And regardless the putative increased safety of American workplaces, nothing endures but change – and fundamental questions surrounding the nature of the social compact.

Back to my grading . . .


Michael C. Duff

December 27, 2018 | Permalink | Comments (1)

Wednesday, December 12, 2018

New Critical Book on Lyme Disease Educates Lawyers and Judges

            In a new book, the author, a journalist, explains Lyme Disease, posits that the medical establishment has improperly rejected the proposition that the malady can become chronic, and theorizes that the spread of the disease is due to climate change.  See Lyme: The First Disease of Climate Change, by Mary Beth Pfeiffer. Island Press.  2018.  288 pp.  See also 

            The book, in detailing what she calls the “four myths” about Lyme Disease, supplies the attorney with a wealth of information with which to prepare for cross-examination of a physician who cleaves to the view of most experts, who insist that the condition is easy to test for, diagnose, and treat; and who reject the proposition that it can become a long-term problem for victims. The book treats occupational injury contraction only briefly, though the author does reference veterinarians, highway workers, and soldiers-in-training as individuals who are at high-risk for incurring the disease.

            Like at least one other reviewer (Times Literary Supplement, 9.21.2018), this reader was unable to say that the author makes out her case that a conspiracy exists to quash research into the disease; the plausibility of such an effort seems weak, and the purported arrogance and villainy of the medical establishment seems overstated.

            Still, the book is a tour de force of critical thinking about how medicine and society have responded to what appears to be an increasingly hazardous medical condition. It is valuable reading for the workers’ compensation specialist. In this regard, Lyme Disease is a challenge for both the insurance industry which underwrites risks and the lawyers who seek to obtain benefits for disease victims. Employers and insurers, in general, deny claims when causation is not obvious, and are wary of claims of chronic conditions that are suspected of having their genesis in non-work-related and/or superseding maladies. These two anxieties are at a high pitch in the Lyme Disease debate. Further, experts apparently differ over whether current testing for Lyme Disease is dependable. The author spends a whole chapter on this latter issue.  

            The accuracy of diagnosis, and physician cynicism over the authenticity and cause of chronic problems, are major themes of Pfeiffer’s book. Rarely does a chapter pass without accounts of physicians purportedly misdiagnosing Lyme, instead ascribing chronic problems to such things as fibromyalgia, chronic fatigue syndrome, malingering as to school attendance, and modern-day neurasthenia (the accusation is that chronic Lyme is a “middle-class malady”). These are all phenomena of workers’ compensation claims handling and litigation.

            Lyme Disease is incurred by the bite of a tick which is itself infected by the bacteria Borrelia burgdorferi. See The main culprit is the Blacklegged Tick, a species of anthropod parasite that, given our rapidly warming planet, is expanding its range northward deeper into the U.S., particularly the northeast. Pennsylvania, indeed, is a jurisdiction which is said to have an increased number of infections every year.

            It is notable that the bite of the tick is not communicating to the victim venom, as with the bite of a snake or spider. Instead, the tick itself has incurred the bacteria from sucking the blood of mammals like infected deer and mice, and even of birds.

            It is deer that are the most visible culprit. Suburban sprawl continues its remorseless extension into wooded areas, and fewer predators exist to cull the herds. The result is a burgeoning deer population which in turn infects the ticks who are so voracious for their blood – and which in turn infect humans. The disease can be highly debilitating, though physicians believe that antibiotics, particularly a course of doxycycline, can cure most cases. See

            It is on this point, however, that significant dispute among physicians exist. The author charges that the condition has been “minimized, underestimated, and politicized to the point that doctors” fear treating it aggressively with antibiotics. The Centers for Disease Control and the Infectious Diseases Society of America (IDSA) in this regard, reject the proposition that the condition can be chronic, and have established restrictive, evidence-based guidelines that should be followed in identifying and treating the malady. (As to the CDC, see

            Members of the International Lyme & Associated Diseases Society, on the other hand, believe that Chronic Lyme exists, and argue for long-term use of antibiotics as the remedy. They argue that Lyme should be taken much more seriously, and caution that the disease can cause injury to an individual’s central nervous system.  

            As foreshadowed above, the author posits that four myths surround Lyme Disease. These are (1) that Lyme is overdiagnosed; (2) that Lyme Disease Testing is reliable; (3) that Lyme Disease is hard to contract; and (4) that Lyme Disease is easy to treat. Pfeiffer seeks to debunk these myths in her book, which has the added feature of 20 pages of references.

            Many resources exist about Lyme Disease, particularly online, but the workers’ compensation specialist will be well-prepared for encounters with claims in this area by a close examination of Ms. Pfeiffer’s critique.          


December 12, 2018 | Permalink | Comments (0)

Tuesday, December 11, 2018

"Save the Tick!": Notes from the 2018 Texas Bar Association Workers' Compensation CLE

            On August 23-24, 2018, I attended the Texas Bar Association Workers’ Compensation CLE.  I was a speaker and, as requested, gave a presentation on significant national developments in the law over the last 12 months.  The venue was Austin, TX, and about 250 lawyers attended.

            Texas is the only state in which employers are not obliged to take part in the workers’ compensation system.  According to a recent article in Business Insurance,* in 2018, 28% of Texas employers did not carry workers’ compensation insurance; and 1.8 million workers, or 18% of the workforce, labored for these “nonsubscribers.”  

            Yet, a robust workers’ compensation program exists in the state, the contours of which are easily recognized by an out-of-state practitioner such as myself, and to others as well.   I offer here a brief background of the Texas system and select notes that should be of interest to all: SAVE THE TICK . Texas Bar Association Work Comp CLE 2018.  


* Louis Esola, Opt-out Texas Sees Dip in Employers Offering Comp Coverage, Business Insurance (Dec. 4, 2018).

December 11, 2018 | Permalink | Comments (0)

Monday, December 3, 2018

Top Northeast Pennsylvania Physicians Talk Opioids, Medical Marijuana, and CTE - With a Coda on Nurse Case Management

            Northeastern Rehabilitation Associates, a group of physiatrists who specialize in treating injured workers, convened its annual occupational medicine seminar on October 16, 2018.  The venue, like the last few years, was the Mohegan Sun at Wilkes-Barre, PA.

            I always counsel my lawyer and judge colleagues here in Pennsylvania: the seminar is a can’t-miss if one is interested in immersion in the critical medical and medico-legal topics of workers' compensation. 

            I have set forth in an essay select items which I discerned, from my notes, as highpoints for the lawyer and judge from that seminar.  They deal with opioids, medical marijuana, and CTE.  The seminar audience was largely nurse case managers – who seem more and more a part of the litigated workers’ compensation case – and the final session of the program dealt with the role and ethics of such professionals.

            You will find the essay here:  Northeastern Rehabilitation Occ-Med Seminar FINAL


December 3, 2018 | Permalink | Comments (0)