Workers’ Compensation Law Prof Blog

President Orders Continued Meat Production: And Then There's the 13th Amendment

Update: The President's Order has issued. I now have doubt as to whether the Defense Production Act provides immunity to tort actions (if that was the plan) to parties bound by it outside the context of military contractors. See In Re Aircraft Crash Lit. Frederick, Md., 752 F. Supp. 1326, 1330 n.2 (S.D. Ohio 1990); see In Re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 843 n.27 (E.D.N.Y. 1984). As we used to say back in my ice hockey days, this could be a donnybrook.

When I was a young whipper-snapper, an airline supervisor once ordered me to put my rain gear on and enter an airplane baggage compartment into which "lavatory fluid" had discharged due to a malfunction. I told him to pound sand. That memory popped into my head when I read that the President was ordering meat facilities to remain open (disclosure: I became a vegetarian in 1983 - how prescient of me). As Bloomberg reports (here behind a paywall):

President Donald Trump plans to order meat-processing plants to remain open, declaring them critical infrastructure as the nation confronts growing disruptions to the food supply, a person familiar with the matter said.

 

Trump plans to use the Defense Production Act to order the companies to stay open, and the government will provide additional protective gear for employees as well as guidance, according to the person.

 

Trump signaled the executive action at the White House on Tuesday, saying he planned to sign an order aimed at Tyson Foods Inc.’s liability, which had become “a road block” for the company. He didn’t elaborate.

 

The order, though, will not be limited to Tyson, the person said. It will affect all processing plants supplying beef, chicken, eggs and pork.

 

The White House decided to make the move amid estimates that as much as 80% of the U.S. production capacity could shut down.

 

Illnesses in the meat-processing industry and shifts in demand as restaurants have closed have disrupted the food supply chain in recent weeks. Dairy farmers are dumping milk that can’t be sold to processors, broiler operations have been breaking eggs to reduce supplies and some fruit and vegetables are rotting in fields amid labor and distribution disruptions.

 

Many low-income Americans, meanwhile, have been waiting in long lines at food banks, which have reported shortages.

 

Asked about the supply of food to the country, Trump said: “There’s plenty of supply.”

The deep game here may be that the Defense Production Act has been interpreted as providing broad liability immunity to producers compelled to comply with its terms. See the statute here, and agriculture-specific anti-liability regulation here.  So "anti-liability" is apparently coming by Executive Order and by Mitch McConnell edict. I think it remains to be seen how far into state law the immunization will purport to intrude (is workers' compensation liability included?). Some of us can avoid lavatory fluid, and some of us can't. But if this goes much further the constitutional dimensions of tort law may be tested a lot more starkly than in prior periods of "tort reform." Perhaps we will reach a point where even the most desperate of workers will not enter Covid-19 hot zones. The next likely thought in the President's head may encounter the 13th amendment of the U.S. Constitution:

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

And, as a colleague of mine just said, "Happy Workers' Memorial Day!"

Michael C. Duff 

White Swans and the Pesky Constitution: Reopening of the Economy at Any Cost?

One of my favorite commentators, Nassim Taleb, thinks the Covid-19 Experience is a White Swan, not a black one. (He predicted the event – or one a lot like it – back in 2007. And I am under the impression that it has always been just a matter of time). It is also not hard to foresee that the economy will be “reopened” too quickly, at least in some quarters. And, equally predictably, comes the policy cry for advance insulation of business interests from tort liability—indeed advance insulation from all liability. One could, of course, avoid tort liability by not acting tortiously—indeed, it will not be easy for plaintiffs to establish liability. But, you know how it is, a couple of favorable facts and you could find yourself before a jury (or a workers’ compensation adjudicator given the encroachment of the Covid presumptions). And juries and other public factfinders have a nasty habit of seeing things differently from the prepared narratives of the powerful, a habit the founders were counting on. A recent piece in Bloomberg Law is dripping with the disappointment being experienced by the liability-insulation contingent.

Businesses that reopen during the coronavirus pandemic likely won’t be completely off the hook if workers and customers fall ill, even as the Trump administration looks at ways to ease employers’ liability concerns.

President Donald Trump and White House economic adviser Larry Kudlow said this week that the administration is exploring protections for business from certain legal risks related to reopening. Kudlow described the idea as a “guardrail” of sorts, but stopped short of any concrete proposals.

Business lobbyists say it’s unlikely that the administration could successfully create a broad shield protecting companies from potential personal injury, workplace safety, and other litigation. Some are looking instead for a targeted response that would ease some of the risk at the federal level.

“There is a worry about lawsuits, but I think the idea of some kind of a ‘safe harbor’ for employers from all forms of liability is a bit of a pipe dream,” Randy Johnson, a corporate lawyer for Seyfarth Shaw in Washington, told Bloomberg Law. “Various opponents, like Democrats, the plaintiffs’ bar, and organized labor, would line up against anything like that.”

Absent from the Bloomberg piece is any mention of the Constitution  -- that pesky document instilling in “Democrats, the plaintiffs’ bar, and organized labor” the confidence that they could successfully “line up against anything like that.” I get the sense it would come as a surprise to some of the journalists writing these pieces that Federalism is just a bit more complicated than Larry Kudlow announcing from an office that state common law tort and workers’ compensation rights have been suspended. I also find no mention in the piece of the necessary corollary to absolute liability insulation: the victim will bear all the costs of the harm every time. I think one should be very clear about the equities of the situation before subscribing to such a harsh rule, as we encounter the “reopening” that Taleb would undoubtedly classify as yet another White Swan event.

Michael C. Duff

Covid Causation Presumption Table as of April 20

 As compiled by Will Aitchison, Director, Labor Relations Information System. Obviously these developments are fluid so the table is likely already out of date. But it provides a snapshot.

Michael C. Duff

State	Status	Notes
Alabama	No presumptive causation	No bills pending in Legislature.
Alaska	Conclusive presumption	On April 10, Gov. Mike Dunleavy (R) signed into law SB 241, which contains a conclusive presumption that a firefighter, paramedic, emergency medical technician, peace officer, or health care provider who contracts COVID-19 after an on-the-job exposure contracted the disease as a result of an on-the-job exposure.
Arizona	No presumptive causation	No bills pending in Legislature.
Arkansas	No presumptive causation	No bills pending in Legislature. On April 14, Gov. Asa Hutchison (R) issued an order allowing first responders and healthcare workers to be eligible for workers compensation but only if they can demonstrate a causal connection between their diagnosis of and exposure to COVID-19 as a result of their employment or occupation.
California	No presumptive causation, but in flux	Reports are that Governor Gavin Newsom (D) may establish presumptive causation through taking executive action. If that does not occur, legislative bills likely to be introduced during the week of April 20.
Colorado	No presumptive causation	No bills pending in Legislature.
Connecticut	No presumptive causation	No bills pending in Legislature.
Delaware	No presumptive causation	No bills pending in Legislature.
Florida	No presumptive causation, but see notes	On April 1, the Chief Financial Officer for the State of Florida issued a directive applicable only to state employees. The directive, which state agencies can choose not to follow, creates a presumptive causation for employees testing positive for COVID-19. The Florida League of Cities, which runs a workers’ comp insurance trust covering many cities and counties, sent a letter to Florida’s CFO stating that it will apply a presumption that exposure to COVID-19 is work-related for the purpose of workers’ comp for “first responders.”
Georgia	No presumptive causation	No bills pending in Legislature.
Hawaii	No presumptive causation	No bills pending in Legislature.
Idaho	No presumptive causation	No bills pending in Legislature.
Illinois	Presumed	On April 13, the Illinois Workers’ Compensation Commission announced an “emergency” amendment to its Rules of Evidence establishing presumptive causation if (1) a first responder or front-line worker is diagnosed with COVID-19 during a COVID-19-related state of emergency, and (2) the virus is causally connected to the hazards or exposures of the claimant’s employment. The rule shifts the burden of proof to employers to show off-the-job causation.
Indiana	No presumptive causation	No bills pending in Legislature.
Iowa	No presumptive causation	No bills pending in Legislature.
Kansas	No presumptive causation	No bills pending in legislature.
Kentucky	Presumed	By executive order on April 9, 2020, Gov. Andy Beshear (D) created a presumption that “removal from work by a physician” for COVID-19 is related to the job..
Louisiana	No presumptive causation	No bills pending in legislature.
Maine	No presumptive causation	No bills pending in legislature.
Maryland	No presumptive causation	No bills pending in legislature.
Massachusetts	No presumptive causation	Bills pending in legislature.
Michigan	Presumed	On March 18, Gov. Gretchen Whitmer (D), in conjunction with Michigan’s Department of Labor and Economic Opportunity, issued emergency rules creating an irrebuttable presumption that COVID-19 was caused by the job if (1) the employee is quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure; (2) receives a COVID-19 diagnosis from a physician; (3) receives a presumptive positive COVID-19 test; or (4) receives a laboratory-confirmed COVID-19 diagnosis.
Minnesota	Presumed	On April 14, Gov. Tim Walz (D) signed H.F. 4537, establishing presumptive causation for emergency first responders and front-line workers unless the employer is able to prove the infection happened elsewhere.
Mississippi	No presumptive causation	No bills pending in legislature.
Missouri	Presumed	On April 8, Governor Mike Parson (R) issued an executive order applicable for the duration of the COVID-19 declared emergency. The order provides in relevant part that a first responder “who has contracted or is quarantined for COVID-19, is presumed to have an occupational disease arising out of and in the course of their employment. Such presumption shall include situations where the First Responder is quarantined at the direction of the employer due to suspected COVID-19 exposure, or the display of any COVID-19 symptoms, or receives a presumptive positive COVID-19 test, or receives a COVID-19 diagnosis from a physician, or receives a laboratory–confirmed COVID-19 diagnosis.” The presumption can be overcome by clear and convincing evidence.
Montana	No presumptive causation	No bills pending in legislature.
Nebraska	No presumptive causation	No bills pending in legislature.
Nevada	No presumptive causation	No bills pending in legislature.
New Hampshire	No presumptive causation	No bills pending in legislature.
New Jersey	No presumptive causation	Bills pending in legislature; president of senate has announced support.
New Mexico	No presumptive causation	No bills pending in legislature.
New York	No presumptive causation	Bills pending in Legislature, senate Bill S8117A. Would create a presumption that impairment of health caused by COVID-19 was incurred in the performance and discharge of duty of certain police, parole and probation officers and other emergency responders.
North Carolina	No presumptive causation	No bills pending in legislature.
North Dakota	Not really	By executive order on March 25, Gov. Doug Burgum (R) allowed workers’ compensation benefits for first responders, but only during quarantine and for a maximum of 14 days. Other claims require first responders to prove “that the infection resulted from a work-related exposure.”
Ohio	No presumptive causation	No bills pending in legislature.
Oklahoma	No presumptive causation	A group of Oklahoma legislators has written cities and counties expressing the hope that they will accept workers’ compensation claims from first responders suffering from COVID-19. However, no bills pending in legislature.
Oregon	No presumptive causation	No bills pending in legislature.
Pennsylvania	No presumptive causation	No bills pending in legislature.
Rhode Island	No presumptive causation but in flux	On April 17, Governor Gina Raimondo (D) announced that first responders “who contract coronavirus can now be eligible for workers’ compensation.” However, no executive order yet issued.
South Carolina	No presumptive causation	No bills pending in legislature.
South Dakota	No presumptive causation	No bills pending in legislature.
Tennessee	No presumptive causation	No bills pending in legislature.
Texas	Presumptive causation, partially	On March 30, Texas Gov. Greg Abbott (R) suspended two sections of the Texas Labor Code during the pandemic, essentially creating a conclusive presumption for public safety employees seeking “medical reimbursements” during the pandemic.
Utah	Likely to be presumed	On April 13, the Legislature approved HB 3007, establishing presumptive causation for first responders exposed to COVID-19 on the job. Awaiting governor’s signature.
Vermont	Presumptive causation in existing law, but only for firefighters	21 V.S.A. Section 601 (11)(H)(i) provides that for firefighters and members of a rescue or an ambulance squad, “disability or death resulting from lung disease or an infectious disease either one of which is caused by aerosolized airborne infectious agents or blood-borne pathogens and acquired after a documented occupational exposure in the line of duty to a person with an illness shall be presumed to be compensable, unless it is shown by a preponderance of the evidence that the disease was caused by nonservice-connected risk factors or nonservice-connected exposure.”
Virginia	No presumptive causation	No bills pending in legislature.
Washington	Presumed	On March 5, Governor Jay Inslee (D) announced that Washington’s Department of Labor and Industries will pay wage-loss and medical treatment expenses for any health care worker or first responder who is quarantined because of coronavirus exposure or who contracts COVID-19 after been exposed on the job.
West Virginia	No presumptive causation	No bills pending in legislature.
Wisconsin	In flux	On April 15, Gov. Tony Evers (D) signed Assembly Bill 1038, an omnibus COVID-19 bill that, in part, created presumed causation if the public safety employee can show an on-the-job exposure to COVID-19. Because of last-minute amendments to legislation, questions exist as to precisely what the employee must prove. The governor has announced support for corrective legislation.
Wyoming	No presumptive causation	No bills pending in Legislature.
Federal	Presumed, with some limitations	The Department of Labor takes the position that “the employment-related incidence of COVID-19 is more likely to occur among members of law enforcement, first responders and front-line medical and public health personnel, and among those whose employment causes them to come into direct and frequent in-person and close proximity contact with the public. If a COVID-19 claim is filed by a person in high-risk employment, the Office of Workers' Compensation Programs will accept that the exposure to COVID-19 was proximately caused by the nature of the employment. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.”

Potential Issues When Workers’ Compensation Doesn’t Apply to a Covid-19 Claim

It is elementary that workers’ compensation is the quid pro quo for a tort claim. One consequence of this principle is that where a state’s workers’ compensation law categorically excludes certain claims from coverage there is a non-frivolous argument that a tort cause of action must be revived for the injured worker or for his or her decedent. Another wrinkle has to do with intentional conduct because the original quid pro quo seemed to presume employer tort immunity only for accidental work-related injuries (think "injury by accident"). Obviously, to be able to bring a tort claim does not mean that one will win the claim. But, as a practical matter, if a plaintiff survives summary judgment, no employer or carrier will want to be before a jury in an emotionally hyper-charged case. And it is possible that the universe of Covid-19 would provide such cases.

Take the case of Evans v. Walmart, filed in the Circuit Court of Cook County Illinois on April 6. Wando Evans and Phillip Thomas passed away during the last week of March, allegedly from Covid-19 complications. Evans’ estate has alleged a litany of tortious conduct under a wrongful death theory. From the complaint:

Walmart violated the duty of care and was negligent in failing to: cleanse and sterilize the store in order to prevent infection of COVID-19; implement, promote and enforce social distancing guidelines promulgated by the governments of the United States of America and the State of Illinois; provide the Decedent and other employees with personal protective equipment such as masks, latex gloves and other devices designed to prevent the infection of COVID-19; warn the Decedent and other employees that various individuals were experiencing symptoms at the store and may have been infected by COVD-19 which was present and active within the store; adequately address and otherwise ignored other employees at the store who communicated to management that they were experiencing signs and symptoms of COVID-19; follow the recommendations and descriptions of mandatory safety and health standards promulgated by the United States Department of Labor and the Occupational Health and Safety Administration as set out in Guidance on Preparing Workplaces for COVID-19; follow the guidelines promulgated by the Center for Disease Control and Prevention ("CDC") to keep its workplace in a safe and healthy condition and to prevent employees and others within the store from contracting COVID-19; develop an Infectious Disease Preparedness and Response Plan as is recommended by the CDC; prepare or implement basic infection prevention measures as is recommended by the CDC; conduct periodic inspections of the condition and cleanliness of the store to prevent and/or minimize the risk of employees and others from contracting COVID-19 as is recommended by the CDC; provide employees with antibacterial soaps, antibacterial wipes and other cleaning agents as is recommended by the CDC; develop policies and procedures for prompt identification and isolation of sick people as is recommended by the CDC; develop, implement and communicate to its employees about workplace flexibilities and protections as is recommended by the CDC; implement engineering controls designed to prevent COVID-19 infection including, but not limited to, installing high-efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as clear plastic sneeze guards as is recommended by the CDC; cease operations of the store and to otherwise close the store when it knew or should have known that various employees and others present at the store were experiencing symptoms of COVID-19; properly train its personnel to implement and follow procedures designed to minimize the risk of contracting COVID-19; periodically interview and/or evaluate its employees for signs and symptoms of COVID-19; prohibit employees who were exhibiting signs and symptoms of COVID-19 from working at the store or otherwise entering the premises; and hired employees via telephone and other remote means in an expedited process without personally interviewing or evaluating whether prospective employees had been exhibiting signs and symptoms of the COVID-19 prior to the commencement of their employment.

The problem, of course, is that it is not immediately evident why the conduct alleged is not covered by the exclusive remedy rule. Perhaps the gambit is to plead the conduct as “willful and wanton,” as the complaint does, in an effort to take it out of workers’ compensation coverage (and thereby exclusivity). In Illinois, it appears that intentional conduct is not subject to the workers’ compensation’s exclusive remedy. See Toothman v. Hardee's Food Sys., Inc., 304 Ill.App.3d 521, 529 (Ill.App.1999). I’m not an Illinois lawyer so I have no idea whether this is a good strategy. What I do suspect is that cases of this type will arise in any state in which the exclusivity bar does not apply to intentional conduct. (Roughly half of all states have some kind of exception to exclusive remedy for intentional, “deliberately intentional,” assaultive conduct, and the like). The cases could become especially pitched should employers require formerly quarantined employees to return to work in the absence of a crystal-clear "all clear" from Governmental authorities. Assuming causation were established, injuries (or diseases) arising from those kinds of scenarios would strike me as highly viable in tort.

Returning to the possibility that a statute may categorically exclude or not cover certain diseases—for example, so called "ordinary diseases of life"—I would anticipate some lawyers may argue that the absolute exclusion from coverage of a disease such as Covid-19 (as opposed to coverage a claimant may not think adequate) should permit a tort cause of action under state constitutional right to remedy provisions. In Wyoming, for example, the statute categorically excludes coverage of work-related "mental injuries" (except, now, in the case of first responders), and courts have allowed tort actions even where the alleged mental injury arose out of and in the course of employment. Collins v. COP Wyoming (2016).

A variety of cases may prove challenging for courts.  

Michael C. Duff

And Now For Something Completely Different: Black Swans and other Workers’ Compensation Tales

I had kind of a love/hate relationship with Harvard Law School when I was a student there. Because I am rather an instinctive anti-factionalist—I don’t align well with political parties or other true believers—a lot of my time on that campus was unhappy. After working in the rain as a laborer for 15 years before law school, deepening an authentic love for my working class brothers and sisters, I didn’t care much for flowery speeches that did not (eventually) lead to more “real” money in the pockets of working people. But, for all that, I did learn a few things at the Harvard Law School. The somewhat controversial torts professor David Rosenberg had a big influence on me. I agreed and disagreed with him in all kinds of areas, but I heard him and engaged with his ideas. He used to do an in-class performance in which he would roll up his pant-leg, somewhat John Cleese-like (I’m presently in a very Python-esque frame of mind), and implore us not to allow legal doctrine to “stick to us.” Then, he would colorfully high-step around the room.

When I talk and think about the fragility of legal structures—including workers’ compensation—I tend to operate in Rosenberg’s spirit. We all have a recency bias. It is a survival mechanism. We tend to believe that tomorrow will be like today. But anyone who has talked to me for longer than 15 minutes knows that I don’t place recency on a pedestal. I have written over the years about the dangers to workers’ compensation of arbitration, of “opt out,” and of de facto deregulation of employment law (including workers’ compensation) through incessant tinkering with employee/independent contractor law. Also perpetually in the back of my mind lurks the idea that those employers who don’t want to pay “anything” for their workers, who embrace the strongest, thickest notions of profit maximization, are always experimenting with how to take the next major step in dramatically reducing costs. Then, when the Black Swan, the truly unexpected event, emerges, the structures that have been developed and experimented on are ready for roll-out. Does this seem paranoid? I don’t care.

There are always countervailing forces. When, in the early-20^th century, during the ravages of unprecedented industrial killing and injuring fields, some captains of industry were arguing that any regulation of the injury “externalities” created by their operations violated the Constitution, workers’ compensation and liability laws arose as such a countervailing force. Now, in the throes of widespread disease and illness, some would be satisfied with spitting out a few thousand dollars per worker as an adequate remedy for what will likely be long-term, catastrophic impacts on life-chances. It matters little to me where larger visions are born. Robert Snashall, former chair of the New York Workers’ Compensation Board, proposes:

As part of the next Federal Relief Package, a Covid-19 Federal Death Benefit Fund be created and administered by the September 11th Victim Compensation Fund (VCF) with procedures adopted by the VCF; The family of any worker who dies from Covid-19 be allowed to file a claim for death benefits subject to a maximum specified dollar amount; Such death benefit claim shall be afforded a presumption that the Covid-19 is related to the decedent’s work duties; and, Such benefit claim must be reviewed and processed by the VCF and the final death award be paid within 90 days subject to any reasonable analysis and adjustment by the VCF.

Josh Hawley, conservative senator from Missouri, proposes that businesses be provided with refundable payroll tax rebates reimbursing about 80 percent of payroll costs and additionally be given rehiring bonuses for businesses for the duration of the crisis. He argues that such reimbursements “will prevent unemployment offices from being overwhelmed, keep Americans from going into debt and give families a sense of confidence that a job is waiting for them when the crisis is over.”

As an advocate for the interests of the working class, I react to Snashall and Hawley—without regard to their apparent political affiliations, which, in the current political climate, has come to mean almost nothing—in the same way I react to Mark Warner’s portable benefits schemes: what is the “cash value” to workers of these proposals? Ultimately, I embrace a broader utilitarianism than this, but there are always (well-paid) advocates for the “other side.” And rest assured that, although current constitutional law would suggest that Congress has the authority to implement many big ideas, “law” can change very quickly during historical emergencies. Do not be surprised to hear more and more about how big fixes will deprive certain propertied persons of property without due process of law.

But no matter where you are “coming from,” I would respectfully suggest that it is getting harder and harder to rationally accept that we are simply in the midst of a tricky day. Sitting here, quarantined on the high prairie in the middle of a health crisis and an almost unbelievable financial crisis (discussion of which is beyond the scope of this post but I’ll just note that I also teach bankruptcy), this humble observer thinks that tomorrow will usher in something completely different. What will workers’ compensation look like tomorrow? Probably not like it does today.

Michael C. Duff

Remote Law Teaching During Pandemic: Permanent Partial Benefits No Easier to Explain

To say that this is a challenging semester in which to be teaching law is an understatement. Each of us is facing unprecedented obstacles; and in my little corner of the world I am presented with the dilemma of trying to keep law students, whose lives have been turned upside down, dialed in to learning. This semester I’m teaching workers’ compensation law and bankruptcy, bodies of law that are likely to be tested in unforeseen and perhaps unforeseeable ways.

These developments have caused me to hew even more closely to general bedrock workers’ compensation principles that students can have confidence will apply in most places. With respect to causation/coverage, workers’ compensation deals with “injuries by accident arising out of and in the course of employment.” My class had already unpacked most of the major issues tending to emerge from that deceptively simple formula before we all went into quarantine.

Now, post-quarantine, we are embarking on categories of benefits (assuming causation) that are arrayed from determinations of an injured worker’s extent of incapacity (or "disability" or work-related "impairment" if you prefer). Total benefits present little conceptual difficulty. I engage in the obligatory hemming and hawing at the puzzling reduction of benefits from the “average weekly wage” to the typical two-thirds of that figure (one-half under the original 1897 British Act). “We don’t want injured workers—dazzled at the prospect of receiving the full state average weekly wage, the cap in many states—to simply stop working. We also don’t want them to engage in riskier behavior as the economists (but no one who has ever personally engaged in dangerous work) tell us they will.” It is difficult to explain a state like the one in which I teach, Wyoming, that limits receipt of “permanent” total benefits to 80 months (with the possible extension of an additional four years at the discretion of the relevant state agency). Is that an adequate quid pro quo for the loss of a tort suit? Is it adequate under anyone’s definition of adequacy? [Think of the 25-year-old rendered a quadriplegic by a work-related injury]. Surely, tort damages would have factored in all wages a worker lost – and that fails to consider pain and suffering or punitive damages. Puzzled looks from students (though harder to see on Zoom) – I move on.

In the wonderful world of permanent partial benefits, things quickly break down pedagogically. It is pretty easy to explain to students the wage loss model: injured workers are compensated for a percentage of the difference between their pre-injury and post-injury wages. Simple enough. How do we choose the percentage? Why do some jurisdictions employing this model pay benefits only for a limited period and not for the duration of the disability? “It’s too expensive.” Would a handful of very successful tort suits be less expensive? As Oliver Wendall Holmes explained, “The life of the law has not been logic: it has been experience . . . ” I move on.

Earning capacity models are similarly pretty simple to explain conceptually: instead of compensating for actual and determinable wage losses compensate instead for the difference between pre-injury wages/earning capacity and post-injury earning capacity. What is the measure of post-injury earning capacity? Prima facie it is the amount a worker is able to earn in the first post injury employment. If there is no post-injury employment, we guess with (dueling) labor market evidence (of often shaky provenance – I used to depose “experts” with 9 credits of undergraduate work). Furthermore, if there is post-injury employment, it may for a variety of reasons be an unreliable indicator actual post injury earning capacity. Do you think my sharp upper-division students are satisfied with this discussion? I move on.

At this point, many students will be receptive to the idea that perhaps a simplified proxy for wage losses (which must be continually monitored) and loss of earning capacity (which is, even in theory, imprecise) is desirable. Then I am required to expose them to “impairment-based” models of disability; to the arbitrary world of “scheduled” injuries in which a hand is worth 104 weeks of benefits and an arm at the shoulder worth 208 weeks at $300 per week (to borrow just a couple of examples from the Colorado structure). What is behind this odd architecture? Well, I agree with John Burton’s assessment (derived, as he has explained to me personally, from his understanding of Arthur Larson’s teaching) that schedules, and the permanent impairment determinations that drive them, are proxies for work disability. But as any sharp law student can quickly see—we advanced thinkers spend much time and energy forgetting this later on—there is very little explicit relationship drawn (or even attempted to be drawn) between actual disability wage losses (in either the aggregate or as applied in a particular case) and partial disability benefits paid. In other words, upon what—precisely—are the proxies based? Or to put it in law student terms, where do the numbers 104 and 208 come from?

This was Professor Burton’s problem when commenting on New York’s proposed changes to its scheduled loss of use (“SLU”) Guidelines back in 2017. Burton had no difficulty showing that “there [was] no indication that the proposed Guidelines considered any evidence on factors (1) that may affect the consequences of workplace injuries on the extent of the resulting impairment or (2) that may affect the impact of impairments on the resulting work disability. In short, there [was] no evidence that the proposed Guidelines [were] evidence-based.” The problem is that very little in the realm of impairment-based workers’ compensation seems ever to have been evidence-based. And in terms of the proxy-nature of permanent impairment—that is, the idea that it is and has been a proxy for disability—it is difficult to know what to make of the 1917 Bureau of Labor Statistics summary of American statutes that showed, even then: scheduled payments in addition to all other payments, scheduled payments as a supplement to temporary total disability, and scheduled payments supplementing wage-loss or earning capacity models. (See here at pp. 58-72). My sharper students have over the years proposed refinements along the lines of John Burton’s proposal in his commentary on the 2017 proposed New York Guideline changes: “the Workers’ Compensation Board should commission a wage-loss study of injured workers who received permanent partial disability (PPD) benefits in New York to determine if the current PPD benefits are adequate and equitable.”

Until one can say that, nationally, the bottom-line receipt by injured workers of permanent partial benefits is “adequate,” it is hard to conclude (to echo the 1972 National Commission) that the system we have is acceptable. And the argument that the system may be unconstitutional (as asymmetrical quid pro quo) will continue to resonate with worker advocates until we are either willing to make the quid pro quo comparison in good faith, or come up with a different system in which none of what I’m talking about matters. Law students have "gotten" this in the past. I just hope it all comes through over Zoom and that they can still engage, during these trying times, with what I so earnestly want to teach.

Michael C. Duff

Center for Progressive Reform Post on Workers' Compensation and Coronavirus

I'm cross-posting here from the Center for Progressive Reform Blog my discussion--geared for a general audience--some of the interplay between the coronavirus and workers' compensation. I've joined the CPR as a member-scholar and aim to regularly highlight workers' compensation and workers' rights issues:

Front-line health care workers and other first responders are in the trenches of the battle against the COVID-19 virus. The news is replete with tragic stories of these workers fearing death, making wills, and frantically utilizing extreme social distancing techniques to keep their own families sheltered from exposure to the virus. Should they contract the virus and become unable to work, they may seek workers' compensation coverage, which is the primary benefit system for workers suffering work-related injuries or diseases.

I go on to discuss issues that will be familiar to this audience.

Michael C. Duff