Thursday, March 11, 2021
Larson Treatise "Emerging Issues Analysis" (2020): An Anthology Delivering Complete Immersion in the Field
The editor of the Larson treatise, North Carolina lawyer Thomas Robinson, has again published his anthology, Workers’ Compensation Emerging Issues Analysis (LexisNexis/Matthew Bender. 2020. 233 pp.).
This book, though expensive, continues to provide the reader with full immersion in both the issues of the day in our field, and in those challenging our intellects for decades. No completely new writing by Robinson (I don’t believe) is published in the book. Instead, the Emerging Issues Analysis is an anthology of the author’s LexisNexis commentaries over the prior year, along with select essays by a number of colleagues. Completely new material, on the other hand, appears from the author’s collaborators. These are defense lawyers from the several states (including California) who belong to the National Workers’ Compensation Defense Network (NWCDN).
Though the book, published now for several years, is a valuable, completely immersive read, it nevertheless now bears (unlike before) a defense orientation. A reading is not quite the defense-fest experience one has at the Orlando WCI gala or similar events. Yet, as the various defense lawyers lead discussions for their respective states on the issue of COVID, virtually all line up with the supposed definitive analysis for why COVID-19 could not possibly be either an accident or occupational disease – only on rare occasion acknowledging the injured worker’s (or his widow’s) perspective.
The book features a subtitle, COVID-19 in the Workplace. And, notably, the first section of the book is comprised of twenty-one essays addressing workers’ compensation and COVID-19. The treatment is comprehensive, with Robinson and his collaborators treating such items as basic compensability; the trend of states enacting causation presumptions; and the compensability of injuries sustained by telecommuters.
Robinson has the most articulate voice here in terms of policy. He identifies cases of certain states where infectious diseases have, historically, been compensated, even without an occupational disease mechanism being employed. He identifies, for example, the famous Pennsylvania case City of New Castle v. Sallie (1988), where an unfortunate office worker died from bacterial blood poisoning after a good-will kiss (at an on-premises maternity leave party) he gave to an infected but latent coworker.
Robinson, however, does not perceive workers’ compensation as a particularly good vehicle for providing coverage and potential compensation for an infectious disease like COVID. This is so, as most can intuit, because COVID is just that, an infectious disease, and one that can be contracted virtually anywhere. Of course, it is indeed non-work social settings, like bars and restaurants, church and choir practice, etc., that seem, for most, the most risky environments.
Robinson is correct in this regard. However, it is submitted that no reason exists, in the present day, to reject the idea that those whose work put them at actual or increased risk of infectious disease should be barred from workers’ compensation. This is certainly so when medical causation (however much a challenge) demonstrates work-related causation. Further, for better or worse, American society has no 24/7 system of disability and medical insurance, so it is hardly unreasonable for those who believe they have been infected at (or have had their loved ones killed by) work to pursue workers’ compensation benefits. This is certainly so when they have no other insurance providing for disability and medical coverage.
Robinson does not think much of governors taking executive action to create COVID presumptions. Indeed, one of his essays is entitled, “State Governors Have Pens, Who Needs Legislatures?” Another of his critiques echoes the same he has voiced about the popular PTSD presumptions: why should certain workers like first responders or front-line workers (those who labor in grocery stores and hospitals), enjoy presumptions, when the general population does not?
Another essay by Robinson sets forth the welcome reminder that presumptions have, over the century, been common phenomena of workers’ compensation laws. On the other hand, it is undeniable that the promotion and enactment of presumptions in the present day has become a favorite of legislatures. The first-responder cancer and PTSD presumption mechanisms of the last decade or so are obvious examples.
Among Robinson’s additional essays of interest is his reprint of The AMA is on Another Collision Course with Protz. Robinson published this wise essay in August 2020; in it, he explains how the AMA has suspended its historical pattern of publishing occasional new editions of the AMA Guides. He explains that the AMA has a new plan: “Not to create a Seventh Edition, but to continuously update the Guides to reflect the current science and best practice of medicine.” The new version will be online, and no new hard-copy text will apparently be published.
Here, in summary, is Robinson’s concern over the proposal: “The AMA’s proposed method of ‘updating’ the Sixth Edition on a rolling basis flies in the face of Pennsylvania’s Protz II decision….” (Citing the astonishing Pennsylvania case, Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017), which forbade the "most recent edition" formulation, and struck the Guides from the law.) Robinson takes for granted that “to the extent that the AMA makes changes to the Sixth Edition, on a rolling basis, or otherwise, those changes would not be effective in Pennsylvania.”
This observation is surely correct.
As foreshadowed at the outset, Part 2 of the book is prepared, in part, by Robinson’s collaborators from the NWCDN. Robinson and collaborators proceed through the several states and identify jurisdictional trends and cases. Virtually all of the contributors take a stab at analyzing how COVID might or might not be compensable under the accident and occupational disease provisions of their laws. As noted at the outset, a common (though not unanimous) refrain is that COVID clearly will not be compensated.
All of this material is must-reading for the true national expert. Still, the most intriguing and helpful material is constituted by the Part 2 summaries of the most important cases decided the last year in each of the respective states. It is here, simply by analogy, that the practicing attorney, judge, and true student of the field will learn the most.