Workers’ Compensation Law Prof Blog

The Origins and Effects of My Workers’ Compensation “Viscerality”

I am about to use a largely academic word—viscerality—to explain my atypically (for a law professor) non-academic relationship to workers’ compensation law. Please be patient with me. Viscerality is “a quality of being related to the physical as opposed to the virtual or imaginary world or reality.” For a legal academic, I have an unusual relationship to the world of work injury. I performed fifteen years (long years) of physical labor after high school before attending law school in 1992. In a nutshell, I lifted heavy things in warehouses, and in and around airplanes. I have been hurt—small breaks, deep cuts, purple bruises, vexing strains, and a balky back—and I’ve witnessed good friends getting hurt (some of them seriously). I’ve been in a warehouse when a man (not my close friend, but horrific just the same) was crushed to death by a forklift. My grandfather died of black lung when he was 52 and I was 10.

This background of viscerality rendered me a “difficult” first-year law student; and perpetually causes me to be astonished at a legal world in which it is assumed without (real) debate that a “contract” or “property” right is more important than the right to a remedy for physical injury. The places from which I hail might assign a different priority, if only they could. Because of physical injury rights’ relative unimportance (in the schema of official power), the legal boundaries within which workers’ compensation functions are only lightly policed by state courts (and really not at all by federal courts). In most places, adjustments to the workers’ compensation system need only be vaguely articulable as rational—if any legislative explanation of modification of the rules is “not irrational” it is upheld, and the burden is on the challenger to show irrationality. (I would not like the state of affairs even if legislatures more frequently represented citizens).

But in my old neighborhood such a “not irrational” standard would be unacceptable. And I’ve never really left my neighborhood (even though I now live 1800 miles away from it, as the crow flies). I continue to see the problem as someone from my neighborhood might. An intruder in my house is a threat to my personal security. I might want a gun to repel the intruder. A world in which those who could cause me grievous physical injury need incur no great cost (when all the paperwork has been completed) is a world in which I will sleep lightly. What is your definition of personal security? I fear more than guns. Personal security was the first of the absolute rights discussed in William Blackstone’s Commentaries (always close at hand to the early American lawyers). This son of East Boston, Mass (and of other working class places) would fear no dialogue with them.  I plan to take my viscerality more deeply into the 9th Amendment this summer. Wish me luck.

Michael C. Duff

Managing Cynicism: Teaching Law Students about Dueling Doctors in Workers’ Compensation

It does not take a law student embarked on my workers’ compensation course long to realize that, in many of the litigated cases we read, the opinions of the doctors involved are diametrically opposed. And opposed despite the underlying complexity of the medical issue under dispute—it is nearly self-evident in many of these cases that it would be impossible to determine whether disability was, for example, work-related “to a reasonable degree of medical certainty.” The second and third year law students making up my class have been exposed to talismanic expositions of the adversarial system in which they will work—“not a perfect system but the best we have,” & etc. (We’d have to ask Leibniz if it is the best of all possible worlds). But come on. Every case? Completely opposed opinions? I try to reassure them: this is not true in every case; by definition, we are reading litigated cases. Difficult cases. The problem is that so many of the litigated cases my class reads reveal absurdly opposed opinions at which all but the most sophisticated of repeat players might blush.

This, to me, is the Achilles heel of the system. We resort to expert opinion to answer what is essentially unanswerable: in many cases we cannot (in reality) disentangle work-related from non-work-related causes. We can’t do it in tort law either – we use terms like “but for” and “proximate” causation as if we know what the terms mean. As a student of David Hume, I know better. When there are multiple causes we resort to the “substantial factor” test and pretend we can say that a cause has made an “important” (“more than a mere scintilla”?) contribution to a harm. We also have incredible difficulty explaining the origins of pain. In an odd way it is actually comforting to think that unexplained pain is either the product of employee faking and malingering or is always real but denied unreasonably by the unfeeling agents of profit maximization.

In close cases involving the exercise of judgment, in connection with essentially unanswerable questions, who will make the bottom-line decision of compensability? Students understand the legislative urge (when viewed from 40,000 feet) to break free of the dueling-doctor-dyad in an attempt to achieve the holy grail of “neutrality.” It is somewhat harder to explain why the structures we pretend are neutral often aren’t. The IME, QME, Medical Panel, EMA often look from the outside like parties with allegiances (financial or otherwise), particularly from the perspective of an injured worker. And if the “neutral” opinion of that expert is binding, or may be disregarded only if there is “clear and convincing” evidence to the contrary, it is hard to explain why the selection of that individual (the de facto decision maker) must not only be actually free from impropriety but must also be free from the appearance of impropriety viewed from the perspective of a truly disinterested third-party. This is an ethical concept lawyers and judges know well, but which seems conveniently de-emphasized in “modern times” when assessing conflicts of interest in many professions (workers’ compensation is hardly alone in this regard).  

So what is a professor of workers’ compensation to say about these matters? Three thoughts come to mind at the moment. First, any time entitlement to a public benefit is being determined one must be clear-eyed about who is in reality making decisions and apply the same conflicts rules upon that person that we would impose upon any public official. Naïve? So was the notion of due process in 1215—I’m glad no one gave up on that ideal in the 13^th century because it might be too hard to achieve (whether we can keep it is another question). Second, we must work hard to maintain a balanced perspective about what interests cheat. All interests cheat—but some cheating has greater impact on the system as a whole, and that is what should be focused upon. And, by the way, most people don’t cheat. If I didn’t believe that, how could I believe in the ideal of the rule of law? Because I do believe in the ideal of the rule of law, I like to think I’m a pretty good choice for a law professor. Third, we may at some point have to (again) admit that a benefits system resting upon slender reeds of causation will not work in the long run. Depending on what happens with health care in the next couple of years, the stakes of the causation determination may diminish. Thinking along these lines when considering the fatiguing spectacle of dueling doctors seems much better than descending into cynicism.    

Michael C. Duff    

Workers' Compensation Opt Out and Exclusivity

In a recent post on the Arkansas opt out bill (that looks like it is going away) I mentioned that the drafters had not repeated the mistake of including exclusivity in the bill, as the Oklahoma drafters had in that state's now-struck opt-out bill. A colleague wrote and asked me to expand on the point. Here was his question:    

I understand that workers cannot sue in tort for matters relating to ERISA plans. But in these Arkansas arrangements, what about suing employers for workplace injuries? If my employer has one of these proposed Arkansas plans and I am injured at my employer’s worksite, why couldn’t I sue the employer for damages related to my work-related injury?

The exclusive remedy provided under the Arkansas workers’ compensation law limits itself to “the provisions of this chapter.” Wouldn’t that language exclude the new opt out law, which has no similar language granting exclusivity to the rights of employees under the new law? So as an employee, would I have access to the benefits provided under the ERISA plan, and also the right to sue in tort?

This is an excellent question.  Here was my response:

A few points. Damages overall would be severely limited under opt-out bills purporting to establish ERISA-governed plans. Med-Mal suits against hospitals, doctors, etc., are of course immediately knocked out by ERISA. And, if the employee accepts the plan’s indemnity and medical benefits—most employees would have no choice, truncated as those benefits may be—he/she would have to reimburse the ERISA plan from any tort recovery. Even without ERISA, damages would be folded into the medical and indemnity benefits paid under the alternative plan. The employer would argue, even under state law, that all/most damages are/will be offset, rendering settlement for the plaintiff’s lawyer a nightmare.

Then we have the Texas phenomenon. In Texas, an employee can’t even get a tort recovery with which to reimburse the ERISA plan because employment is very commonly conditioned on signing an arbitration agreement that covers tort suits. As you know, the FAA preempts states from prohibiting arbitration as a condition of hire. Whatever you get in arbitration will be much less than a traditional tort recovery, and you would still have an obligation to reimburse the ERISA plan for its outlays. I’m convinced that the grand strategy here (it's already been implemented for some time in Texas) is to create an interlocking system of alternative benefit plans and arbitration agreements in every arena of labor and employment law. You may have been following arbitration closely in the context of #MeToo. Here, I discuss the phenomenon and in the first paragraph address workers’ compensation and arbitration agreements.

So—bottom line—I think the opt-out architects are starting to realize that there is no point insisting on exclusivity in an opt-out plan (and we saw from the Oklahoma experience how bad from a public relations/political perspective the optics were–not explicitly cutting off a tort right may also take away some state constitutional arguments) because tort is already so badly hamstrung. I also don’t think it is an accident that these opt-out laws appear in states where tort reform is hot. That’s why I try to keep track of tort reform developments: the less afraid you are of tort, the more willing you might be as a rational actor to risk giving up exclusivity.

I'll add one additional point that I did not mention to my colleague. When I participated on an opt-out panel at the National Press Club a few years ago, I had the good fortune of sharing a stage with erudite Workers' Injury Law & Advocacy Group official Chuck Davoli and opt-out architect Bill Minick of Partnersource. The room was a bit tense and the views of the panel participants diverged substantially, as one would anticipate. And I left out one interesting participant: Bruce Wood of the American Insurance Association, whom my blogmate Judge David Torrey featured on this blog a couple of years ago. The AIA has been sharply critical of the opt-out model, and once you understand the vastly reduced liability created by tort reform, arbitration agreements, and ERISA opt-out plans containing no substantive benefit floors, you can see why. Heck, any employer could self-insure in this environment. All you need is a low cost third-party administrator and you are good to go. And the costs that don't get covered?  They "go" somewhere else. Get the picture?

Michael C. Duff  

Further Remarks on the Arkansas Workers’ Compensation Opt-Out Bill (That May Be Going Away)

While rumor has it the Arkansas opt-out bill, Download Ark Opt Out Bill (002), does not have time to be enacted into law, it has nevertheless provided me with a wonderful opportunity to get a look into the architects’ minds. This is a useful exercise because, as I have said repeatedly, opt-out is not going away. A section by section dissection of the bill would have you, my dear readers, heading for the exits. But I think a “moderate delve” may be tolerable.

The first major thing to note is the unusual posture of the bill. It was “dropped” into legislative session with very little time left to enact it. Under Section 5 of the bill:

(a) The state shall seek a federal waiver for regulatory authority to regulate issuance of a universal workers' compensation insurance policy under this chapter;

(b) The universal workers’ compensation insurance policy issued under this chapter shall be to one (1) company with no more than 500 employees;

(c) No additional universal workers’ compensation insurance policy shall be issued until the General Assembly grants authority to universal workers’ compensation carriers to issue universal workers' compensation insurance policies to an authorized employer.

It is hard to escape the conclusion that the drafters immediately feared the statute would not survive ERISA scrutiny (I share their assessment—I think much of the content of the bill would be preempted by ERISA, both under Section 514 and Section 502) and would not even take the chance of rolling out the system in the absence of a federal “waiver.” This is quite interesting. I am not sure what the drafters are contemplating the federal government could waive. Surely it cannot mean that the state authorities anticipate that the federal executive branch will “waive” the congressional determination that state laws “relating to” employee benefit plans are preempted by federal law. (Agencies may, of course, at times waive requirements that have been established administratively, a process roughly equivalent to prosecutorial discretion). But I would be very surprised to learn that anyone with legal training in the Department of Labor believes the agency possesses the authority to disregard a congressional directive. In any event, the drafters seem to contemplate holding the state statute in a kind of “abeyance” during which permission will be sought from the Feds—post enactment—before proceeding further (so don’t worry legislators if you don’t quite understand the details). A bit weird and this presents—uumm—a bit of a federalism tension.

The second major thing to note is that the bill is very poorly written. It is so poorly written that I feel confident it was drafted in great haste; why, I don’t know. Regardless, it is a very difficult bill to read—in sections it is impenetrable.

There are a few major substantive issues worth mentioning here.   

Direct/Indirect Consequence

Substantially fewer benefits are available to a “covered employee” for a “covered disability” that is not the direct consequence of a “covered injury” by accidental cause than for a “covered” disability that is the direct consequence of a covered injury by accidental cause. Yep, that will sure simplify the causation analysis. I refuse to scrutinize the distinction at length (there is a lot of imprecision created by overuse of the term “covered”), but anyone who imagines there would be clearer legal outcomes utilizing a direct/indirect “consequence” standard instead of the “injury by accident arising out of and in the course of employment” standard is wrong. But that is not the point. The point is that the state is purporting to authorize and regulate ERISA plans in lieu of workers’ compensation. And in an ERISA regime, it would be a Plan Administrator (not a judge or other public official) making these kinds of causation/“consequence” determinations. The private administrator’s determinations would almost always have to be challenged in federal court under an arbitrary and capricious standard of review (for you non-lawyers, that means the party appealing usually loses).

Covered/Non-Covered Medical Expenses

Although the bill lays out how rates of medical expense compensation will be determined—there is a lot of tethering to CMS Medicaid fee schedules, for example—the statute does not unequivocally state what medical conditions are covered in the first place. See Section 11-16-204. But in Section 11-16-205 there is a somewhat elaborate mechanism whereby the covered employee and “authorized medical care practitioner” together may determine that “noncovered medical care is preferred” but the provider nevertheless (despite the noncoverage of the preferred treatment) “desires compensation under this chapter.” Did I mention that the practitioner is permitted to balance bill the “covered” employee for noncovered medical care?

My admittedly jaundiced eye sees a scenario in which the doctor tells the injured worker, “look you need procedure x, but they will only pay me for procedure y under the terms of the plan. So sign this acknowledgement of financial responsibility if you want me to proceed further.” Frankly, it is a chilling prospect.  I guess you should not deliver painkiller to the injured worker until all of the correct signatures have been obtained at the scene.

Preference for Lump Summing and Actuarial Benefit Caps

Although biweekly indemnity benefits are permitted, it caught my eye that maximum benefits are frequently expressed in aggregate terms:

“Indirect consequence” injury=max of 156 weeks at the normal benefit rate (75% of preinjury AWW); all compensation (presumably also medical benefits) 234 weeks x national (Longshore) AWW

“Direct consequence” injury=max of 520 weeks x normal rate; all compensation 780 weeks x the Longshore rate

Injury by co-employee=max of 2600 weeks x normal rate; 3900 weeks x Longshore rate

In short, there is a lot of math to do, and the obvious expectation is that the opt-out insurance carrier will lump sum claims at present value. It is not clear to me that under the bill injured workers could obtain legal representation to check all that math (and other things). Unless I am missing something—and it is possible that I am—there is no explicit mention of attorneys’ fees (or even attorneys) in the bill. (In a few places in the bill curious reference is made to attorneys-in-fact acting as employee representatives). Perhaps the bill means to incorporate by reference sections of the existing Arkansas Workers’ Compensation Act.

No Permanent Partial Incapacity Benefits

While 11-16-209 of the bill provides compensation for scheduled losses, I find no provision in the bill for partial benefits. None at all. If the drafters thought they were making such provision in 11-16-201, the section should be redrafted for clarity. Again, perhaps this is an incorporation issue?

I could dance all night, but will stop here. It hardly seems necessary to conclude that a system of the kind presented here (again, allowing for the possibility that I am not getting the entire intended statutory picture) is one in which employers: have control of causation determinations, have the ability to shunt significant responsibility for medical costs on to employees (and others), do not appear to assume responsibility for partial incapacity benefits at all (except arguably by proxy through use of scheduled benefits), and make it difficult for employees to ascertain to what benefits they are entitled even while making no provision for employee attorney representation. Such a system would obviously reduce employers’ operating costs substantially. I think ERISA, as currently written, would prevent wide scale adoption of such systems (seeking both to spur creation of and to regulate ERISA-governed plans). In another post, I will discuss similarities between the Arkansas and Wyoming constitutions that I think create additional state law obstacles to enactment of such systems.    

 Michael C. Duff

 

Background Helpful for Understanding ERISA Issues under the New Arkansas Workers' Compensation/Opt-Out Bill

I'm reprinting commentary I wrote back in 2016 concerning the former Oklahoma opt-out bill. Although I'm just getting back into this, I think the analysis remains accurate: 

This summer, I’ve been doing a lot of work on the subject of workers’ compensation “opt-out.” Over the last couple of years or so this has been a hot topic in workers’ compensation circles, though it has cooled off recently while the Oklahoma Supreme Court deliberates in a pending case, Vasquez v. Dillard’s, Inc., implicating some of the underlying issues in this area. Essentially, opt-out is about certain folks figuring out that if you combine “regular” workers’ compensation benefits with non-workers’ compensation benefits you arguably wind up with a multi-benefit “employee welfare benefit” plan governed by ERISA (the Employee Retirement Income Security Act of 1974), a federal statute. Why does that matter? Because states have limited or no control over the substance of benefits provided by ERISA-governed “employee welfare benefit plans.” Employee welfare benefit plans need do no more than deliver what they unilaterally promise to deliver. That promise has no connection to any state-imposed benefit floor. Why would a state cede control of statutory workers’ compensation benefits? As they might say in the French Foreign Legion, “that’s a long story.”

This is not the first time the law has encountered the idea of substituting ERISA-governed plans for state-mandated employment benefits. Back in the 1990s, for example, some employers resisted New York’s efforts to require the payment of state-mandated pregnancy benefits by arguing that New York could not interfere with their ERISA-governed “multi-benefit” plans, which did not cover pregnancy benefits. The Supreme Court said to the employers, in Shaw v. Delta Airlines, “well, yes employers, you can have multi-benefit ERISA plans, but states can force you to comply with the substance of certain mandatory state benefit laws that ERISA carves out from coverage (workers’ compensation, unemployment compensation, and disability insurance).”

The matter has been complicated in recent years. Oklahoma has enacted (and other states have considered enacting) a law facilitating an ERISA multi-benefit approach without requiring that multi-benefit plans comply with traditional workers’ compensation law (significantly changing the Shaw v. Delta Airlines scenario). This state-sanctioned “opt-out” from traditional workers’ compensation law is rife with complexity. Back in 1974, Congress wanted very strict legal uniformity with respect to ERISA plans (See Fort Halifax Packing Co. vs. Coyne) because prior abuses nationwide had prevented employees from receiving benefits they thought they had earned.

In furtherance of this drive for uniformity, with very few exceptions, ERISA preempts attempts by states to regulate employee benefit plans. However, benefit plans created “solely to comply with workmen’s compensation laws” are not governed ERISA. Usually, there is a clear line of demarcation between ERISA and workers’ compensation plans. However, it is not easy to classify an “alternative benefit plan” authorized by a workers’ compensation opt-out law. Is it a plan excluded from ERISA because created to comply with a “workmen’s compensation law?” Or is it an ERISA-governed plan? . . .

I am convinced . . . that, if alternative plans are indeed ERISA-governed plans, the very law authorizing their creation is preempted, under Section 514(a) of ERISA (29 U.S.C. 1144(a)). . . . This is perhaps the one moment in workers’ compensation law when I get to utter something resembling the Heisenberg Uncertainty Principle: the moment an employee plan ceases to be a workers’ compensation plan and becomes an “alternative” plan the state opt-out law creating the alternative plan is probably instantly preempted. The rule is simple: any state law (including an opt-out law) referencing an ERISA-governed employee benefit plan is preempted. (See, e.g., District of Columbia vs. Greater Washington Board of Trade).

As I have noted, the “buzz” around opt-out appears to be on hold pending decision of Vasquez v. Dillard’s Inc. That case will likely be decided on state constitutional grounds and may do little to clarify opt-out/ERISA issues. But, I think opt-out, involving as it does the tension between ERISA and state attempts to innovate with workplace injury remedies, is merely a harbinger of things to come. The simple federal-state employee benefit model that has been in place since the mid-1970s will likely be repeatedly tested, and in the not-distant future.   

I will also note that the Arkansas bill does not repeat the Oklahoma statute's error of explicitly retaining exclusivity. There is no need for exclusivity because ERISA-governed plans are almost always immune from tort suits. 

I'll be doing a more detailed analysis of the Arkansas bill in the next couple of days.

Michael C. Duff

Arkansas Reviving Frankenstein's Monster -- the Return of Workers' Compensation Opt-Out

I've just caught wind today that a bill, SB673, has been filed in the current Arkansas legislative session that would (as far as I can tell on first inspection) revive the workers' compensation opt-out "experiment." The proposed system is termed, "the Universal Workers' Compensation Act" (apparently because the plans provided under it would be multi benefit in scope).

As in the Oklahoma model, the phrase opt-in may be a more apt description. [On re-reading, I have changed my mind - this seems to be opt-out because the default position appears to be that an employer is "in," but I may change my mind again.] And, actually, the bill seems to want to dispense with the causation element in workers' compensation altogether (A 24-hour plan? They must be pretty sure of tremendous cost savings elsewhere):

11-16-102. Purpose and intent. 

(a) The purpose of this chapter is to establish a statutory alternative authorizing and encouraging employers to secure coverage for compensation for injury or death of employees without regard to work-relatedness under the authority granted to the General Assembly by Arkansas Constitution, Article 5, § 32.

Furthermore, the bill concedes that it purports to authorize plans governed by ERISA:

(b) To accomplish the purpose described in subsection (a) of this section, it is the intent of the General Assembly that this chapter provide comprehensive plan design for employees within a plan under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., as it existed on January 1, 2019, to be unencumbered by state laws that impact the 11 plan design and financing of this chapter.

The "ERISA as it existed on January 1 language" is interesting. Does someone know something I don't about coming changes to ERISA -- probably someone does. Concern about Medicare for All?

Ordinarily I would make a series of points here explaining various ERISA preemption problems under the bill. And that will come when I have had a chance to study the bill more closely (though rumor has it it may be passed and signed before I have a chance to do so). Extremely curiously, Section 8 of the bill suggests that Arkansas may be conceding that the bill would be preempted by ERISA in the absence of federal approval. It strikes me as a very odd provision:

SECTION 8. EMERGENCY CLAUSE. It is found and determined by the General Assembly of the State of Arkansas that there is a need for federal approval; that Section 5 of this act mandates the state seek federal approval to implement; and that Section 5 of this act is immediately necessary because the state needs time to seek federal approval. Therefore, an emergency is declared to exist, and Section 5 of this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: 
(1) The date of its approval by the Governor; 
(2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; (3) If the bill is vetoed by the Governor and the veto is 1 overridden, the date the last house overrides the veto.

The compensation rate under the bill appears to be 75% of the claimant's average weekly wage capped at 2x the "National Average Weekly Wage."  I will have much more to say later. (I'm confident).

Michael C. Duff

Are Tennessee Undocumented Workers Covered by Workers’ Compensation? It's Complicated. . .

In a remarkable case just decided by the Tennessee Supreme Court, Sandoval v. Williamson, the Court concluded that a provision in the Tennessee Workers’ Compensation Act, “which does not allow for additional [partial] benefits . . . for any employee who is not eligible or authorized to work in the United States” is not preempted by federal immigration law.

The facts are straightforward. An acknowledged undocumented worker, Sandoval, suffered an injury while working for his employer, and the parties settled a permanent partial disability claim under Tenn. Code. § 50-6-207(3)(A) (although the details of the settlement are not reported, the scope of indemnity liability is 2/3 of the employee’s pre-injury average weekly wage for the period of compensation [impairment rating times 450 weeks]). However, Sandoval “failed to return to work” at the end of the initial compensation period and under § 50-6-207(3)(B) filed for additional benefits to which he was arguably entitled (under an all-too-familiar but bewildering extended partial benefit formula – a complaint for another time). But, as mentioned above, the benefit “extension” does not apply “to injuries sustained by an employee who is not eligible or authorized to work in the United States under federal immigration laws.” § 50-6-207(3)(F).

There are a couple of odd features to this case/statute. First, it appears that under the statute an undocumented worker is eligible for a partial benefit the statute calls an “original award,” (and maybe for a total benefit, too), but an undocumented worker—even the same worker—is not eligible for “increased benefits.” Now it may be the drafters had in mind a structure in which the original injury (being the product of already unlawfully-performed work that is in effect a fait accompli) should be recognized; but that subsequent benefit eligibility tacitly condones ongoing unlawful presence. The problem from a policy standpoint is that the chosen structure over the long term simply creates cheaper workers’ compensation claims and a corresponding incentive for employers to hire undocumented workers. (Breyer’s dissent in Hoffman Plastic rings just as true to me now as it did when I first read it). I also think the statutory structure sets up an interesting equal protection problem. Imagine two similarly situated injured workers (same injuries & etc.), one lawfully-present and one not. The lawfully-present worker receives an original award and increased benefits. The undocumented worker receives only the original award. As a state, if you want to exclude all undocumented workers from receipt any receipt of benefits, that may or may not be constitutionally permissible (even if demonstrably bad policy—the costs will simply shift somewhere else), but can you really constitutionally provide part of a benefit to one classification of worker without some explanation other than “we’re trying to comply with federal immigration policy”?

Which I imagine is why the claimant was placed in the unusual position of having to argue “offensively” with respect to preemption. Usually, it is insurance carriers and employers arguing that a state’s policy of permitting compensation of undocumented workers is preempted by federal immigration policy. The claimant in such cases is defending the state’s allowance of compensation.  Here, the claimant argued that a state’s decision not permitting compensation of undocumented workers was preempted by federal immigration policy. I think Tennessee’s exclusionary policy is—I’ll be nice—ill-advised. And it may even provide some creative plaintiff/claimant with an interesting equal protection argument (personally, I’d file a negligence suit in connection with an employee hurt in the workplace by arguable employer negligence yet denied the “increased benefit”). But I’m ultimately pleased to see the Tennessee Supreme Court join the overwhelming weight of national authority in holding that federal immigration policy does not preempt state workers’ compensation law. In the long run, that view will be (I am convinced and delighted to say) more protective of injured undocumented workers (in the name of simple justice) and of state workers’ compensation autonomy, an autonomy I continue to support in light of the overall reality of federal policy vacuums that I doubt I’ll outlive.

Michael C. Duff