Workers’ Compensation Law Prof Blog

A Kentucky Lawyer in the Trenches Writes on Black Lung Disease, Law, and Policy

            In a new article, published in mid-2018, author Evan Barrett Smith addresses current issues surrounding the federal Black Lung Benefits Act.  His focus is principally on legal developments since the year 2000.  Evan Barrett Smith, Black Lung in the 21^st Century: Disease, Law, and Policy, 120 West Virginia Law Review 797 (2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3152733.

        Smith initiates his discussion with noting that, to everyone’s surprise, cases of Black Lung by coal miners are on the rise.  At one point not long ago, he notes, some researchers believed that the diagnosis was one of the past.  Yet, modern coal mining practices and inattention to safety standards restricting coal dust exposure, among other factors, have reversed the trend. 

            This phenomenon was one known to this writer, as workers’ compensation judges in Virginia (Deputy Commissioners) have reported the last few years a significant uptick in the number of workers’ compensation cases for the condition.  It is also one that has been treated in a PBS documentary. See https://www.pbs.org/wgbh/frontline/film/coals-deadly-dust/.  (Smith, via Twitter, has endorsed the film.)

            The author is generally pessimistic; still, the good news is that, if fidelity is shown to dust exposure limits as established in 2014 by the Department of Labor, the Black Lung incidence rate should be lowered. This is so, however, only with compliance by industry.

            The author, while pleased that the Affordable Care Act, via the “Byrd” Amendment, restored a presumption of causation for miners, is highly critical of the adjudication procedures in federal Black Lung cases.  Indeed, he characterizes the delays in adjudication of cases as a “disgrace.”  Yet, he argues against the advocacy of some, who assert that Black Lung claimants should be able to compromise-settle their claims.  He points out that the most important benefit under Black Lung is medical treatment, and that this is an item which should not lightly be thought appropriate for a release.  And, because it is medical coverage that mine operators are seeking to avoid, they are not going to want to engage in partial settlements.  (That, in fact, is the Pennsylvania experience, where settlement of all aspects of a claim is the default method of settlement, one usually mandated by carriers if a lump sum with release is to conclude a case.)

            The Kentucky-based author, who has represented coal mining disease victims, has authored an articulate and superbly edited, educational review of the current landscape of Black Lung.  His commentaries, notably, are also at https://twitter.com/evanky?lang=en; and https://twitter.com/BlackLungBlog.

 

More Challenges in Workers’ Compensation Teaching: Permanent Partial Disability

Nothing more quickly allows me as a teacher to reveal and explore the fault lines of workers’ compensation theory than the subject of permanent partial disability. I teach—both in my class and in my workers’ compensation textbook—a simplified wage loss model. This reflects my background as a Maine lawyer cutting his teeth on the subject during the period 1995-1997: simply take some percentage of the difference between the pre-injury average weekly wage and post injury wage (e.g., 2/3 of the gross or 80% of the net). Whatever that figure is pay it for the duration of the disability/incapacity for work. The approach is analytically “clean” and helps students to quickly distinguish between total benefits (2/3 of the AWW)  and partial benefits (2/3 of the difference, as just explained).

There are all kinds of problems with this model. It seems consistent with the overall quid pro quo of workers’ compensation: a hypothetical worker who would have had a meritorious tort suit could have received damages in excess of this benefit amount plus medical treatment. But imagine the worker who would not have had a meritorious tort suit. Is such a worker receiving a windfall that is more equivalent to a welfare benefit? Some state legislatures seem to think so, though they simultaneously vastly underestimate the impact of successful negligence lawsuits by those who have not suffered injury from a pure “accident.”

Then there are issues with duration. States utilizing wage loss models may set a durational limit (which is also true of total benefits). Leaving issues of morality to one side, are durational limits on the amount of time a worker can receive workers’ compensation benefits for an established work-related injury legally defensible? I would argue not for our hypothetical, successful injured worker-tort plaintiff. But perhaps limits can be legally defended with respect to the injured worker who is a victim of pure accident. And, fair or not, attempting to calculate actual wage loss imposes the administrative burden of monitoring wage losses for many workers on an ongoing basis. Alas, I must, accordingly, at least allude to other, less simple partial benefit models, especially since there is a more-or-less 3-way split of approaches throughout the country (including in Wyoming which expresses partial benefits both in terms of work incapacity and physical impairment).

Basing partial benefits on a loss of an injured worker’s post injury earning capacity, another approach to calculating partial benefits, presents its own difficulties. On what is this earning capacity to be based? One possibility centers on post-injury employment. When I practiced in Maine post injury wages were prima facie the measure of post injury earning capacity. The burden was on the employer-carrier to have it otherwise. But suppose the partially incapacitated employee loses her “injury job” and is thereafter unable to obtain employment. How will post injury earning capacity be measured then (not to mention the problem with supplemental claims that benefits should be paid at a total rate during the period of accompanying unemployment)? Or suppose an employee sustains an injury resulting in physical limitation likely to impact earning capacity in the future, but causing no immediate wage loss.  How is that future loss to be accounted for?

Enter the erratic topic of permanent impairment. Permanent impairment, in many states, kinda, sorta acts as a proxy for earning capacity through the vehicle of schedule benefits. But few are those who can explain just how. The analytical basis for specific determinations seem lost in the mists of time. From the very beginning of the American workers' compensation system, in the 1910s (see pages 94-106 here), we have been assured of proclamations such as, a lost arm is worth 312 weeks of compensation, a hand 244 weeks, and so forth. I’m inclined to blame the Europeans because “schedule injuries” were an original feature of 19^th century European workers’ compensation laws. Indeed, the West Virginia State compensation commissioner, reputedly early-on, prepared tables “from a combination of the tables used in Germany and Russia for compensation purposes.” (see page 102 here).

In all of this I am leaving out the awkward fact that Massachusetts originally did not connect permanent impairment benefits to work incapacity at all, even by proxy (see here at page 94). And, in my fair home state of bar admission, Maine, the legislature first proxy-connected permanent impairment to wage loss benefits, then reversed itself in 1965 by providing standalone PI benefits, and then reversed course again by providing "alternative" schedule benefits that must be set off against “general” partial benefits. (See the history here, and here).

These are, of course, exceedingly delightful details for law students to encounter. I hope you will forgive me for emphasizing the simplified wage loss model in the interest of Vygotsky’s Zone of Proximal Development.    

 

Michael C. Duff

"Kiss Your Stupid Lexus Good-bye!": Work-related Death and a Villainous Lawyer in a Young Adult Novel

            If I were any kind of step-son, I’d be taking my step-mother shopping at Tysons Corners.  But no, we were at our regular visit to the Route 1 Dollar Tree (South Alexandria, VA), when, for the third time, I came across that shopworn copy of the Young Adult novel, My Chemical Mountain (Ember/Random House 2013), by Corina Vacco.  The squib on the back cover refers to a work-related death, so I made the investment and purchased it.  And indeed, the book delivers on that unfortunate event, a catastrophe which serves as the backdrop of the story.  But, as it turns out, there’s another pervasive theme: the villainy of an evil company lawyer who tools around in a silver Lexus. 

        The story is set in fictional Poxton, NY, a town on Lake Erie, southwest of Buffalo.  The “chemical mountain” of the title is a nickname for the large pile of garbage which rises up from the post-industrial wasteland (demolished factories and landfills) which abuts Poxton and dominates its existence. 

        Our hero, Jason, 14 years old, is haunted by the work-related death, a year before, of his father.  Dad, who labored for “Mareno Chem,” was trying to expose the company for illegally manufacturing Phenzorbiflux, an illegal chemical product.  The precise manner of death remains a mystery, and only mentioned in the book’s first sentence: “I think about the seventeen tons of Phenzorbiflux that went missing the night Dad died.  Green, steamy chemical sludge.  Coveralls in a puddle of liquefied human skin.  The horrible phone call that woke us in the night.  I am hungry for revenge.” 

        And retribution is merited, as the family, in the wake of the death, is treated shabbily.  The Mareno Chem lawyer Dan Benecke has, in the wake of the death, pressured Mom into signing a stack of legal papers.  Like the death, however, whatever Mom has signed away and receives in return (a lump sum?) remains a mystery.  There’s no mention of workers’ compensation, and certainly no reference to a Section 32 settlement.  The family is, in any event, impoverished, Mom breaks down, gains weight, and must herself resort to dangerous factory work.

        Of course, the most constructive retributive response would be for Jason and his Mom to retain their own Lexus-driving attorney, seek workers’ compensation, and pursue other legal remedies. 

        Instead, Jason and his friends Charlie (jock) and Cornpup (nerd), embark on a series of adventures intended to expose Mareno Chem’s illegal polluting and, alarmingly, to gain personal retribution against Benecke.  In one scene, the three break into the company’s headquarters and ransack the lawyer’s office: “Anger is ripping through me again,” Jason narrates.  “I smash the picture frames on Dan Benecke’s desk.  I tear up his photographs.  I use a silver letter opener to slash his leather chair.  I scribble MONSTER in black ink all over his desk calendar.”  In a subsequent encounter, when the three are caught trespassing, Jason slashes Benecke in the face with a ninja “Chinse Star.”  In a constructive effort, the boys do attend a public hearing at which the company’s activities are investigated, and Cornpup even testifies about how the toxins in the local environment have disfigured him. 

        In the end, however, violence spells the end for Benecke and the monstrous company for which he labors.  In this regard, just as Jason’s final effort to expose the company commences, Charlie goes rogue and, in a surreal scene, dynamites the Marino Chem plant, perishing during the effort.  This disaster, however, reveals the company’s wrongdoing once and for all, so Charlie’s martyrdom is vindicated.     

        A work-related death thus animates the whole story.  And, indeed, concern about injury from industrial labor pervades the book.  Cornpup’s disabled grandfather was a steelworker at the now-closed Bethlehem Steel plant who lost two fingers saving another man.  Mom must labor in a dangerous factory.  Indeed, her co-worker sustains a serious injury which causes Mom to reform her life and vow to eat more healthily: 

        Mom closes her eyes.  “There was a bad accident at the plant.  A woman – my friend – was injured.  She’s in the hospital.” ….

       Mom takes another bite of green leaves.  Strange.  Very strange.  “Fat people are more likely to have a work-related accident.  Did you know that?”, she says to me.

        “No,” I whisper.  I didn’t know that at all.

        She starts to cry.  “It was horrible.  She got caught in a machine.  Skinny people can slip out of things.  Skinny people almost never get caught in machines.”

         I get it.  When you’re huge, you’re a huge target.  It’s easier to shoot a bear than a sparrow.  But Jeannie didn’t die or anything, so I don’t understand what the big deal is.   

         A blurb on the back cover maintains that My Chemical Mountain is “reminiscent of the Outsiders,” another ostracized-teen adventure story.  However, other stories made famous by film came to my mind.  For a trio of adventurers, Stand By Me (Will Wheaton, River Phoenix, Jerry O’Connell).  For a rogue who goes nuclear, Taps (Tom Cruise).  And, for the slashing-with-Ninja weapon episode, Enter the Dragon (Bruce Lee).  Indeed, when Jason slashes Benecke, the latter simply strokes his wound philosophically and, like the evil drug lord Han, addresses the teens with a menacing lecture. I was ready for the Fight in the Hall of Mirrors. 

        Like Han, however, Benecke gets it in the end.  After the final, flaming end of Mareno Chem, he’s fully exposed: 

         Dan Benecke was arrested, charged with felonies.  I wish I could’ve been there to see it.  I would’ve stood in front of his mansion and shouted, Hope they put you away forever, asshole!  No more fancy vacations!  And you can kiss your stupid Lexus goodbye!

        The implausible scenarios and dialogue of My Chemical Mountain detract from a good story, one with characters with whom the reader gains empathy.  I enjoyed, in any event, reading it!  Still, if I had a teen I don’t think I would want him or her to be thinking that violence is the answer to adversity, as it was for both Jason and Charlie. 

        For a video trailer:

 

 

Teaching Workers’ Compensation Causation in Law School

I’m fortunate to have had all my workers’ compensation students as torts students in their first year of law school. I’m in a good position to explain to them that references in workers’ compensation statutes and cases to legal phrases like “proximate” causation and “foreseeability” can muddy the distinction between negligence and workers’ compensation causation analyses.

Most students of workers’ compensation quickly become aware of the “no fault” nature of workers’ compensation. What one really means by “no fault” is that workers’ compensation “liability” is not predicated on an employer’s breach of a “reasonably prudent person” standard of care. One of the problems with importing the concept of foreseeability into workers’ compensation is that it suggests that a breach analysis is being carried out: having foreseen a risk of harm did the defendant unreasonably fail to avoid the harm? Such a breach analysis is foreign to compensation law, of course. But foreseeability, in addition to suggesting the existence of a fault-based, breach analysis, also implies that proximate cause is relevant to workers’ compensation analysis.

Leaving to one side the problem that tort lawyers frequently debate the propriety and imprecision of the term “proximate cause”— many preferring in its stead the phrase “legal” cause — proximate cause also is analyzed in terms of foreseeability. In short, it is often concluded that, under principles of proximate cause, a defendant should not be held liable for what she could not have foreseen. In workers’ compensation, on the other hand, liability in most jurisdictions turns either on whether the workplace has increased the risk of the injury suffered (increased risk test); or whether the employee, even if injured by a “neutral” risk, would not have suffered injury but for her presence in the workplace (positional risk test).  Notice the complete absence of considerations of foreseeability in the analysis. (Unhelpfully, in Wyoming one of the required factors for compensation of “injuries which occur over a period of time” is that “the injury can fairly be traced to the employment as a proximate cause . . .”)

In a recent class we discussed “Good Samaritan” doctrine. I pointed out that in some jurisdictions whether an employee has left the course of employment to assist a third-party who is in danger (danger invites rescue!), thereby potentially rendering a resulting injury non-compensable, depends on whether the employer could foresee the attempt. It did my heart good to see the entire first row cringe. I dislike the use of the phrases proximate cause and foreseeability in workers' compensation law almost as much as I disapprove of major legal disputes being referred to in leading electronic legal news services as “rows.” 

Michael C. Duff          

"Taking One For the Team": Unfortunate Result in a Workers' Compensation Claim via Employer's Safety Incentive Plan

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       The issue of safety incentive programs in the workplace has been current for a number of years now.  A common concern is that safety programs which promise a periodic bonus to all, if no injuries occur, may create anxiety among workers that they should avoid reporting their injuries.   A thoughtful new discussion is Patrick Hagge, Safety Incentive Programs: Best Practices and Common Pitfalls, https://news.leavitt.com/business/safety-incentive-programs/.

          This anxiety came to life in a March 2018 unreported workers’ compensation opinion here in Pennsylvania.  Burch v. WCAB (Graham Packaging), 2018 WL 1102078 (Pa. Commw. 2018).  See https://www.courtlistener.com/pdf/2018/03/01/t._burch_v._wcab_graham_packaging.pdf.

        In that case, the injured worker struck her head violently on a low-hanging vent.  She knew of the rule that injuries were immediately to be reported.  She did not do so, however, because a full accident-free year at the plant entitled each employee to a $150.00 bonus, and she “did not want to cause her co-workers to lose the bonus ….”  Indeed, she commented furtively to a co-worker that she was “taking one for the team.” 

        She told her employer, instead, that she hit her head on a branch while gardening or chasing her dog at home.  That was the story she also provided to her physician, who submitted the bills to her group health plan. The worker also became entitled to wage-loss benefits under the employer’s STD plan.  Soon, however, the private carrier started making inquiries for subrogation purposes and claimant, fearful of insurance fraud accusations – and obliged to have neck surgery – finally reported her injury.  Unfortunately, she did so one week after the 120-day notice-of-injury period expired, and the agency adjudicators, and now the appellate court, all denied her claim as time-barred.

          The worker had, notably, sought to establish actual knowledge by employer by presenting evidence from a co-worker that her supervisor was making inquires and surely must have known or suspected that the injury occurred at work -- but these speculations had been rejected by the judge who acted as final fact-finder.   

          The employer, meanwhile, presented its HR manager, who voiced the better thinking about such programs – which had obviously run amuck for the unfortunate worker: “Scarborough testified that the Employer has an incentive program that pays each employee $150 for each year the plant goes without a reportable injury.  She stated that the program is meant to encourage workers to report unsafe conditions in order to prevent injuries.  It is not intended to discourage employees from reporting injuries.  They are required to report injuries.”

    

National Academy of Social Insurance, at its Policy Conference, Raises Issue of Caregiving

            The National Academy of Social Insurance convened its 31^st Annual Policy Conference last week in Washington, D.C. This year, the theme of the January 31, 2019 all-day session was “Regenerating Social Insurance for Millennials & the Millenium.” It was one of the best conferences I have attended in recent years! The collection of the conference background materials and essays can be found at this link: https://secure.nasi.org/regenerating-social-insurance-for-millennials-and-the-millennium/.

            Workers’ compensation and it concerns were not, notably, a feature of the various discussions. However, a repeated area of consideration was the future of caregiving, both of the young and the old. And, of course, all in our field know that those who take care of others are often exerting themselves significantly, and injury often results. The issue of insurance and workers’ compensation coverage then arises.

            A top legal scholar in this area, notably, is Professor Peggie Smith of Washington University School of Law in St. Louis. See https://law.wustl.edu/faculty-staff-directory/profile/peggie-r-smith/. She has many of her publications listed at that website, but I have long known of her article, Home Sweet Home? Workplace Casualties of Consumer Directed Home Care for the Elderly, 21 Notre Dame Journal of Law, Ethics & Public Policy 537 (2007).

            If the Academy follows its usual procedure, videos of the Millennials Conference sessions will also soon be posted. A definite recommendation!