Workers’ Compensation Law Prof Blog

2019's Top Books for the Workers' Compensation Professional: One Teacher's Selections

            Here are my humble recommendations of the best books for the workers’ compensation professional – at least those that I read – for 2019.

            Let’s start, however, with two brief, largely negative, mentions. In the category of the entirely unsatisfactory experience falls the novel My Chemical Mountain (2013), by Corina Vacco. The teen protagonist spends the book working out a vendetta against his late father’s employer, a Buffalo, NY-area chemical factory, and its employment lawyer. The latter is an evildoer who has tricked the widow into signing what appears to be a very illegal workers’ compensation release and who tools around in a glitzy silver Lexus. In the end, our hero dynamites the factory and its attorney is sent to jail for his many misdeeds. “Kiss your stupid Lexus good-bye!” is our protagonist’s final ungenerous sentiment.  

            Not much better was Stephanie Land’s Maid: Hard Work, Low Pay, and a Mother's Will to Survive (2019). Land – whose sudden status as single-mother, thrown out by her abusive boyfriend – finds herself in an epic struggle to get by. She does recount what it is like to work as a maid. We learn, for example, that it is hard on one’s back, and she tells of many an Ibuprofen 800 popped to help her get through the day. Yet, much of the book is comprised of her bitter complaints about governmental poverty programs, the indifference of her family, and the innumerable woes of her toddler.

            Enough complaining of my own!

            The most educational book I read this year was The Technology Trap: Capital, Labor, and Power in the Age of Automation (2019), by Carl Benedikt Frey. Frey addresses that ubiquitous concern we talk about at workers’ compensation conferences: the growing threat of artificial intelligence (AI) to eliminate the jobs of millions of workers. The concern is voiced by lawyers and others in our community in a more narrow, existential way. If the number of jobs is significantly truncated, particularly those in the industrial sector, will workers’ compensation become superannuated, and along with it those who labor in the dispute resolution process? Of course, a healthy commentary already exists in this realm. But in this new book, Frey takes a novel retrospective/historical look at the situation and tries to predict the future from experiences of the past.

            Journalist Steven Greenhouse’s tour de force history of the labor movement, particularly as it has unfolded since the New Deal, is invaluable. That book, Beaten Down, Worked Up: The Past, Present, and Future of American Labor (2019), is, indeed, a history of labor and not simply of unions. The author treats the remarkable phenomena of fast-food workers campaigning for equitable pay in the “Fight for $15” movement and immigrant tomato harvesters fighting for humane working conditions in Florida. These are workers who were not, and are not likely to be, laboring under the auspices of a collective bargaining agreement. While this new book discusses all aspects of labor, front and center is the unavoidable account of the decline of union power and influence. For those sympathetic to labor, the Greenhouse book is a grim read.                                  

            Next on my recommended list is Jeffrey Pfeffer’s Dying for a Paycheck: How Modern Management Harms Employee Health and Company Performance – and What We can Do About It (2018). The author asserts that modern business practices create harmful work conditions for employees. He argues that businesses as a whole do little to tend to the emotional well-being of their workers. As a result, workers become disaffected, sick and, in some cases, even die because of work conditions. To Pfeffer, this is at once an injustice, as business, and hence society, are shown to have little regard for workers’ overall health; and a waste, because establishing good work conditions, and keeping workers happy, should both enhance employee performance and the success of business.

            Journalist David Owen’s new book, Volume Control: Hearing in a Deafening World (2019), is a personal-journey account his investigation into hearing loss, remedies for the same, and seemingly all of its cultural manifestations. Owen explores the mechanics and physiology of hearing loss, causation, audiograms, how such losses have been interpreted over the centuries, the experience of the deaf, the business and progress of hearing aids and cochlear implants, and regulation of noise in industry, the military, and in our personal lives.

              Workers’ compensation professionals can benefit by a grounding in the industrial and organized labor histories which were so formative to our field and the larger system of which we’re a part. Behemoth: A History of the Factory and the Making of the Modern World (2018), by Joshua Freeman, assists in providing such education. The book is an account of the rise and partial fall of the great factories which were, for so many years, the centers of international industrial growth. The manufacturing facilities treated by the author range from the early cotton mills of Britain and New England to those of the Ford Motor Company, its Soviet imitators, and the modern mega-factories of mainland China.

Workers’ Compensation Benefits and Overall Wage Growth: Putting Some NCCI Data in Context

Recently, I wrote on this blog about the most recent National Academy of Social Insurance data showing continued declines in employer costs and employee benefits per $100 of employer payroll. As I have written, there are various explanations for this phenomenon. Perhaps it reflects significantly safer workplaces overall. Perhaps there is significant underclaiming of benefits and ongoing legal obstacles to obtaining and retaining benefits. (See here Emily Spieler and John Burton’s article, The Lack of Correspondence Between Work-Related Disability and Receipt of Workers’ Compensation Benefits). The NASI data set does not attempt the expensive and complicated task of capturing information required to answer these granular questions. (In my opinion, the federal government should be gathering the information).

This past November, the NCCI released an issue brief showing that “since 2000, indemnity benefits on a wage-adjusted basis have . . .  kept pace with wage growth across all indemnity injury types in most of the NCCI states.” Assuming this fact to be accurate, is it a counterweight to the NASI graph in my last post that shows a decidedly downward-sloping line for benefits since roughly 1991 (from $1.65 per $100 in payroll in that year to 80 cents per $100 in payroll in 2017)?

One immediate reaction with respect to comparing anything with wage growth since 2000 is – what wage growth? Keeping pace with wage growth may mean keeping pace with real wage declines. As the Pew Research Center reported in 2018, “today’s real average wage (that is, the wage after accounting for inflation) has about the same purchasing power it did 40 years ago.”  Moreover, “what wage gains there have been have mostly flowed to the highest-paid tier of workers.” And with respect to recent years, the Economic Policy Institute claims “nominal wage growth since the recovery officially began in mid-2009 has been low and flat. This isn’t surprising—the weak labor market of the last seven years has put enormous downward pressure on wages.”

This highlights at least a couple of problems. First, wage growth since 2000 is an especially difficult metric from which to draw many conclusions about the adequacy of workers’ compensation benefits since the Great Recession lay embedded within the period. But, intuitively, I accept the idea that benefits in the aggregate have “kept pace with” wages in the aggregate during that period. The larger question is whether wage growth keeps pace with inflation. (Keeping pace with breadcrumbs may be all that the workers' compensation system demands). Still, what might be more useful for analytical purposes is to compare the relationship between wage growth and benefits during the 1980s, 1990s, and 2000s. I suspect benefits came crashing down relative to wages in earlier decades, and that we are now working from that already depressed baseline. (John Burton has written about the diminished urgency of fixing workers' compensation subsequent to the disbanding of the 1972 Commission. In a nutshell, benefits initially went up for a short period, and then seemed to deteriorate following the election of Ronald Reagan, which ended any realistic threat of federal intervention into state workers' compensation systems). In other words, more rapid erosion may have occurred in earlier decades and some seem to demand accolades for not slipping further.

The second problem with comparing benefits to wage growth is that most wage growth in recent decades has gone to the top of the socioeconomic ladder. In order to assess the relationship more carefully I would want to know how benefits have kept pace with wages at several different junctures of the wage scale. It may be that workers’ compensation benefits have kept pace with the wages of low-earners but not with those of high-earners. Or it may be that low wage earners have experienced significant real wage declines, and there is a policy question as to how to adjust workers’ compensation benefits in the context of those declines.  

In any event, it is hard for me to conclude that the NCCI issue brief is contrary to NASI figures. Each data set measures different trends, and each shows why multiple metrics are required to gain a clear picture of what is transpiring nationally. It is also evident that workers’ compensation is subordinate to larger economic trends. For example, I have little doubt that the current relative silence in workers’ compensation policy circles has everything to do with waiting to see who is going to prevail in the Medicare for All battle. Hard to have a deeper policy debate on workers’ compensation when the entire paradigm could be set on its head.

Michael C. Duff

Some Observations on PTSD Coverage Expansion and Firefighter Presumptions

I had the privilege and honor of presenting on this subject on December 12 on a panel at the National Council of Insurance Legislators' Annual Meeting. My co-panelists were Robert Stokes of the law firm Flahive, Ogden & Latson; and Glenn Deshields, Legislative Director of the Texas State Association of Fire Fighters. The main points I attempted to make were first that PTSD could not reasonably have been part of the original workers' compensation quid pro quo because negligent infliction of emotional distress was in its infancy as a tort cause of action. It makes sense to me that PTSD would expand under workers' compensation as negligent infliction of emotional distress expanded under tort. And when you have claimants like first responders held in universally high regard, a "bridge" is formed that permits policy expansion. I also emphasized a point that David Torrey has made in some of his writings -- there is nothing new about occupational disease presumptions.  They existed in the British Act of 1906 and were picked up in New York beginning about 1920. I have some cites in my working paper that may be of interest to researchers. 

Whenever policy makers consider expanding workers’ compensation coverage there is concern expressed that expansion risks converting workers’ compensation into general accident or health insurance. It is easy to understand why policy uneasiness may emerge when assessing expanded coverage of arguably work-related disabilities like post-traumatic stress disorder (PTSD), or when debating the option of adopting relaxed workers’ compensation causation standards—"Firefighter Presumptions”—in connection with diseases sustained by law enforcement officials, safety personnel, and first responders. After all, expanded coverage means expanded costs (and, of course, the need to insure against those costs). But workers’ compensation has had a long history of fundamental expansion since its inception over a century ago, often to the point where one can no longer imagine the expansion as not being originally part of the system. Often under the surface, workers’ compensation expansion is tracking similar expansion in tort liability, and the workers’ compensation expansion reflects a perceived need for enhanced tort immunity—though many involved in the debate may not be aware of this dynamic. In other words, increases in workers’ compensation costs are constantly being weighed against the potential for increased tort liability.

 

To take one broad historical example, many observers of workers’ compensation may be unaware that, in the earliest versions of the American workers’ compensation statutes, circa 1911, no provision at all was made for payment of ongoing medical care in connection with work-related injuries. At that time, workers’ compensation medical benefits were limited to post-injury first aid at the workplace, and perhaps initial medical treatment for, at most, 90 days. The first United Kingdom workers’ compensation statute (of 1897, as amended in 1906—the progenitor of most American statutes did not cover ongoing medical benefits: something akin to national health care for workers was about to arrive on the scene in the U.K. in 1911. The other early workers’ compensation model, German workers’ compensation, established in about 1884, was similarly part of a much broader universal health care insurance system in which work-related medical costs and indemnity payments merged into a broad social insurance structure). The point is that American statutes had to expand to cover ongoing medical treatment for work-related injuries. Few in 2019, however, think of medical coverage for work-related injuries as an “expansion” of the original idea of workers’ compensation. Workers’ compensation “had” to expand because, if American workers’ compensation statutes had not covered the expense of ongoing medical treatment for work-related injuries, that expense would have to have been pursued by workers in tort litigation, with all the expense that process has always entailed. American stakeholders preferred expanded workers’ compensation and tort immunity to expanded tort liability.

 

Along similar lines, many readers may know that workers’ compensation was originally limited to coverage of extra hazardous employment. One reason for the limitation was that it was not known by state legislatures until 1917 whether the United States Supreme Court would uphold on constitutional grounds a version of the Grand Bargain that included non-hazardous employment. Another reason for states deciding initially to cover only extra hazardous employment was that it was there that the need for workers’ compensation coverage was most acutely felt. (Necessity is often the mother of invention). Eventually, the U.S. Supreme Court very broadly authorized the Grand Bargain—the historic “quid pro quo” of workers’ compensation benefits for tort damages (and defenses). The High-Court authorization solved major problems, but created new ones. Now that states possessed a more-or-less legal blank slate on which to write workers’ compensation law (albeit with some very broad boundaries), they were placed in a position of having to flesh out exactly what the quid pro quo should entail. But states had no hesitation expanding workers’ compensation coverage from solely extra hazardous employment to most employment. And, again, from the perspective of employers, with the costs of workers’ compensation expansion came (and comes) the benefits of expanded tort immunity. There were, of course, other statutory beneficiaries: workers relieved of the time and expense of pursuing tort litigation (to say nothing of workers who would have had no viable tort claims at all); and society-at-large, which benefited from having the costs of workplace injury shifted to producing sectors of the economy (and away from broad taxpayer subsidization), and which also benefited from safer workplaces generally.  

The rest of the paper can be found here.

Michael C. Duff

Is a Picture Worth 1000 Words?

This year, I had the honor and privilege of serving on the National Academy of Social Insurance Workers' Compensation Data Panel. Twenty-three panel members from various backgrounds and policy perspectives (including my blog mate Judge David Torrey) scrutinized data collection over a period of several months and then met in early November to debate, discuss, and refine findings and thought about findings. It was scintillating to this evolving policy wonk. The panel makes every attempt to be a neutral body. Of course, everyone operates through a series of cognitive biases and honest brokers reveal those biases in advance. I think everyone who reads these pages from time to time understands that I am biased in favor of injured workers. When I smell a rat, I say so.  I'm not embarrassed about choosing a side or about choosing the particular side I've chosen -- I conjecture there are plenty of advocates out there who can make the case that what is good for their respective clients is good for America. I made my choice a long time ago.

Still for all of that -- the chart above seemed to rankle certain workers' compensation observers. What does it show? It's very simple. The benefits for injured workers per $100 of payroll continues to go down. The costs for employers per $100 of payroll continues to go down. Now you and I can have a debate about why that might be so. But that is what the numbers show. You might argue that the metric itself is flawed. Maybe you think that benefits and costs per $100 of payroll is a meaningless statistic. Of course, if you have that view you would be in opposition with NASI panels going back several years and, by the way, the use of the metric by other governmental agencies. But, of course, you have the right to disagree with everyone -- I do it all the time. The full NASI report is here, and in my humble opinion is essential reading.

Some critics of the current report seemed to be complaining that benefits can't be decreasing all that much because since the 2012-16 Oklahoma drama there have been no major incursions on the workers' compensation citadel. In a way, I agree with them. Creeping erosion has been the norm. We won't see more opt-out drama until the next severe economic downturn. When that comes--and it always will--the same questions we were considering in 2016 will once again be front and center. I am always amazed at how very intelligent people can talk themselves into the proposition that the 2016 tumult was a tempest in a teapot. I hope you will remember (when the time comes) that this observer thought that, when times get especially bad, the first question an employer might pose to a legislator is, "why do we have to have this expense at all?" If you think there is a clear answer to that question, I respectfully respond that you are wrong. Legal and social consensus is always much more fragile than contemporaries imagine.

The outgoing Obama Department of Labor produced a 41 page report titled, "Does the Workers' Compensation System Fulfill its Obligations to Injured Workers?"  My answer to the question is, of course it doesn't. But if I'm going to be intellectually honest I have to concede that the answer depends on the premises that 1) there is a broader social obligation to injured workers and 2) we have some kind of consensus about what is meant by fulfillment.  It is on point number 2 that I think we have tremendous disagreement. Some believe that workers' compensation is a bare, anti-destitution safety net program. Others believe that because injured workers have forfeited valuable tort rights something more than starvation wages is required.

Forgotten in the clamor is the point that the National Commission in 1972--chaired by the esteemed John Burton and peopled with members who could hardly be considered anti-business--concluded, at the risk of oversimplification, that workers' compensation was inadequate and thought that federal intervention could be in order in the absence of significant improvements. To me, that is the correct context in which to view the chart above -- but that is one man's opinion. The DOL report discussed the National Commission's 19 Essential recommendations and discussed the six focus areas of those recommendations only two of which I'll mention here:

• adequate weekly benefits for temporary total, permanent total and death benefits including both statutory rates and a desired earnings replacement rate. This area included recommendations that the maximum weekly benefit rise to a maximum of at least 100 percent of the state’s average weekly wage initially, and then to 200 percent, and that, subject to this maximum, benefits be at least 66 2/3 of the worker’s gross weekly wage. Notably, many of the 84 National Commission recommendations not included in the 19 essential recommendations went further with regard to income maintenance, including that beneficiaries in death cases have their benefits escalate with increases in the state average weekly wage and that maximum weekly benefits should ultimately reach 200 percent of the state’s average weekly wage. 

• no arbitrary limits on the duration of benefits for permanent total disability or death,including that total disability benefits be paid for the duration of the worker’s disability or for life

In my day, I was a fair to middling trial attorney and was schooled by excellent mentors to sit down when I'd made my point. You'll be the judge of whether I have. I'll merely point out that the graph above begins only eight years after the Commission's report was issued -- and the graph does not seem to reflect a system that could possibly be improving from the perspective of injured workers.

Michael C. Duff

Dispatch from the Front Lines: More Injuries in Amazon's "Safe America"

One reason it is hard to bamboozle me on the true state of working America is that before I became a lawyer, and then a law professor, I did 15 years of hard labor in working America. I've worked as a janitor, in warehouses, restaurants, and on airport tarmacs -- often as putative part-timer doing full time work without full benefits. I've been hurt on the job. And none of it as part of a social science experiment. It was my livelihood, and I didn't know if I'd ever make it out. So let's just say I'm a different kind of law professor when I evaluate labor and employment issues. Here's a little sunlight revealing what is going on in a workplace governed by America's second largest employer. If you thought nobody could make Walmart look like a safe employer consider this joint Atlantic/Reveal expose:

Amazon’s famous speed and technological innovation have driven the company’s massive global expansion and a valuation well over $800 billion. It’s also helped make Amazon the nation’s second-largest private employer behind Walmart, and its CEO, Jeff Bezos, one of the richest humans on Earth. Now an investigation by Reveal from the Center for Investigative Reporting has found that the company’s obsession with speed has turned its warehouses into injury mills.

Reveal amassed internal injury records from 23 of the company’s 110 fulfillment centers nationwide. Taken together, the rate of serious injuries for those facilities was more than double the national average for the warehousing industry: 9.6 serious injuries per 100 full-time workers in 2018, compared with an industry average that year of 4. While a handful of centers were at or below the industry average, Reveal found that some centers, such as the Eastvale warehouse, were especially dangerous. Dixon’s was one of 422 injuries recorded there last year. Its rate of serious injuries—those requiring job restrictions or days off work—was more than four times the industry average.

The full story from November's Atlantic is here.

Statistics and data are important, but sometimes (for whatever reason) they just don't line up with what any fool can see is truly unfolding on the ground. How much more do you have to see about what is going on at Walmart and Amazon, the number 1 and 2 private sector employers in the U.S. to understand that it is not safe out there?

Michael C. Duff

 

Shameless Self-Promotion: My Wyoming Workers' Compensation Treatise Has Been Published

I'm very pleased to announce the publication of my Wyoming Workers' Compensation treatise. I'm especially tickled that I was able to do it "open source":

A Treatise of Wyoming Workers’ Compensation Law seeks both to introduce Wyoming workers’ compensation students to the law of their own jurisdiction, and to provide a continuing resource to those same students as they embark on workers’ compensation legal practice after graduation. In this way, the text fills a gap in the literature by serving as a concrete exemplar of what it means to assist students in becoming “practice-ready” as soon as possible after graduating from law school. In short, practice ready lawyers must have some exposure to the law of their own jurisdictions. Furthermore, Wyoming Workers’ Compensation Law is meant to be a resource to all practicing lawyers in the state of Wyoming. This objective is intimately connected with the mission of the University of Wyoming as a Land Grant Institution broadly striving to serve the needs (including legal needs) of Wyoming citizens.

 

Substantively, the treatise canvasses the traditional areas of workers’ compensation law: employee/employer definitions, causal connection to work, evaluation of the extent of disability, types of benefits, and a brief discussion of the Wyoming administrative structure. In several places the treatise first introduces a substantive area of law generally, for example “causal connection,” and then focuses on how Wyoming analyzes the area of law. In discussing some substantive areas of workers’ compensation law, the treatise underscores especially unique Wyoming idiosyncrasies. Not content to merely “restate” the law, the treatise in certain areas subjects the law to academic criticism and suggests legal reform in order to stimulate broader discussion of the legal doctrine.

The text is free to download. You just need your name, email address, and law school affiliation (which I don't think is aggressively policed so you can probably simply enter the name law school closest to where you reside).

Michael C. Duff