Thursday, July 29, 2021

New Article Invokes Workers' Compensation as a Model for a Tort Reform that Would Emphasize More Timely Compensation of Victims

            In a new article, a scholar advocates for modification of tort law so that the negligence-action goal of providing compensation to tort victims can be better realized.  See Christopher J. Robinette, Harmonizing Wrongs and Compensation, 80 Maryland Law Review 343 (2021),

            The author, who teaches at Widener University Commonwealth Law School, acknowledges that other goals of tort actions are (1) the societal desire for accident prevention (that is, the safety goal); and (2) vindication and basic justice for the victims of torts. Still, the author argues, “the majority of tort victims actually are motivated simply by compensation,” to wit, the simple need for “money to pay medical bills and replace lost wages.”  In the author’s view, the current structure of tort law, in virtually all areas, does not allow a quick remedy for this basic need.  In this regard, the complexity of tort law and its overwhelming uncertainty lead to delay and wasteful transaction costs (attorney’s fees and expenses) which impair the compensatory goal that underlies most tort victims’ desire to sue. 

            The author, as suggested by his title, desires to “harmonize wrongs and compensation.”  In the end, he sets forth no explicit new plan, but instead asserts that mechanisms should be established to remove compensation-oriented cases from “wrongs-based tort law….”  He argues that some mechanism of this sort would benefit both the plaintiffs and defendants in those compensation-oriented cases, as well as reserve the tort system for those interested in righting wrongs. 

            The author finds support for such a mechanism in the workers’ compensation reforms which unfolded at the beginning of the last century.  He also finds support in the reforms which surrounded the burgeoning automobile accidents (the no-fault experiments which came in their early-twentieth century wake), and the widely-publicized funds which have been established in the aftermath of mass disasters.  These include the September 11th Victim Compensation Fund; the BP Oil Spill Fund/Gulf Coast Claims Facility; and the GM Ignition Switch Fund. 

            This new article is valuable in providing quick, accessible sketches of all of these programs, reminding the reader of their genesis – and how they have worked in practice.  The author observes that workers’ compensation has been the most pervasive and successful reform of tort law to bring compensation to a limited class of injury victims. (His brief history of the emergence of our field will be of interest to all.)  Compensation for victims of automobile accidents, on the other hand, has experienced a rockier reform path.  Yet, many jurisdictions still have some level of auto no-fault, with a policy of (1) seeking to compensate victims on some sort of no-fault basis; and (2) preventing most cases from ever making it to a jury trial.  The mass-disaster funds, meanwhile, were quickly enacted with a goal of compensation and preventing, wherever possible, the delay and waste of litigation. 

            Of course, most mechanisms that focus on compensation, with their streamlined remedies, restrict the ability of the parties to receive an “individualized justice ruling.” 

            Still, the author insists, “most of tort law is not properly designed to meet the compensatory goals of a large number of claimants.  What is needed is a way to bypass tort law in cases better suited for compensation, while leaving wrongs-adjudication in place as the default…. Designing such a bypass is challenging, but worth the effort.  If successful, it would incorporate compensation into wrongs-based tort law…. Additionally, the search for a way to fairly compensate those claimants who are not seeking vindication may create common ground on tort reform.  A simpler, cheaper procedure with decreased pain and suffering damages would be fairer than some current reforms, like caps on damages, yet potentially generate the savings desired by business interests.” 

July 29, 2021 | Permalink | Comments (0)

Wednesday, July 21, 2021

Pennsylvania (and Universal?) Medicare Set-Aside Development: In Open Meds/MSA Option C&R Approach, Claimant Held to his Promise of Future Cooperation  

           Parties under the Pennsylvania practice may compromise and release (C&R) any liability claimed to exist under the law.  The statute (enacted in 1996) was, notably, patterned after the California Act provision.  Currently, the majority of (though by no means all) disputes end, as in many states, in C&R.

            With the federal government's demand for MSAs in cases where the worker has Medicare rights, one creative strategy is for the claimant to tender a release for disability benefits, accept a lump sum, and agree to cooperate with the employer's continuing attempts to secure an advantageous CMS-approved MSA.  The employer typically reserves the right to either continue its liability for medical indefinitely or fund the MSA.  As a WCJ, I have referred to this popular strategy as the Open Meds/MSA Option.

            The employer's risk in such a situation has always been that the injured worker will not, at the future date, cooperate with securing CMS approval.  In a July 2, 2021 case, that situation was on display. 

          In this regard, the Commonwealth Court (a powerful middle-level appeals court), reversing the Appeal Board, and restoring the WCJ’s order, held that a claimant was bound by his C&R promise to cooperate in the future with facilitating a CMS-approved MSA. Lehigh Specialty Melting, Inc. v. WCAB (Bosco), 569 C.D. 2020, filed July 3, 2021, 2021 WL 2934769 (en banc, unreported, Pa. Commw. 2021). (A link to the full text is below.)

          A worker, Bosco, sustained acknowledged work injuries in 2011.  Three years later, he and employer, Lehigh Specialty Melting, Inc., agreed to a $155,000.00 C&R.  The C&R was for disability only, with the employer reserving the right to exercise its option of either indefinitely covering medical or seeking out a CMS-approved MSA.  The WCJ approved the arrangement in his 2014 order.

          A number of years passed, and medical marijuana became available; claimant began to utilize the substance for his chronic work-injury condition.  

          In 2018, employer secured CMS approval of a $44,913.00 MSA.  Claimant advised employer of the medical marijuana use, and employer re-contacted CMS to determine if claimant’s use of the same would alter the MSA amount. CMS (no surprise) advised that it would not.

          In any event, claimant refused to cooperate in executing documents to finalize the MSA, which consisted of a lump sum and monthly installments.

          The employer then filed a recurrent C&R approval petition. Employer requested that the WCJ oblige the claimant to be bound by the original C&R.  At hearings, claimant acknowledged that he knew a delay would occur between the original C&R approval and his later obligation to follow through on the employer’s MSA option.

          The WCJ granted employer relief, indicating that if claimant – after an employer effort to receive a new MSA quote from CMS – did not execute the paperwork, employer was to disburse to him the value of the MSA.  The WCJ had noted and found credible that claimant understood how the open medicals/MSA option was to work and that years might pass before the employer exercised the option.

          The Appeal Board reversed, holding that, given the succeeding legalization of medical marijuana, no original “meeting of the minds” as to employer’s responsibility for medical necessarily could have occurred at the time of the 2014 C&R. 

          The court, however, restored the WCJ’s ruling and ratified the remedy noted above.  The Board had committed error in its “no meeting of the minds” analysis.  To the contrary, the bases for setting aside a C&R – or here, disregarding its provisions – are fraud, coercion, or mistake.  And in this case, claimant had not shown any of these factors.  In this regard, the court noted in particular that the intervening legalization of medical marijuana (a “change in the law”) did not reflect “mistake” sufficient to change the terms of the C&R.  

          In making its ruling, the court agreed with employer’s assertion that the Board’s standard “would open a Pandora’s box that could potentially unravel countless C&Rs based on the contention that there was no ‘meeting of the minds’ at the time the agreements were approved.”

Postscript: In the original C&R, the parties had marked the “no” box where the agency form inquires whether medical was being settled.  The court was unmoved by claimant’s argument that this fact changed the critical analysis.  In this regard, the original C&R was (as with all C&Rs) approved after an on-the-record hearing, and it was obvious that the parties were indeed then seeking to settle medical.

Full Text:

July 21, 2021 | Permalink | Comments (0)

Sunday, July 11, 2021

UCLA Professor's Socio-Historical Account of Fatigue Touches on Workers' Compensation Themes

            UCLA public health professor Emily Abel has written a brief but wide-ranging social history of the phenomenon of fatigue. Abel, herself a breast cancer survivor who suffered from years of fatigue following chemotherapy, combines her sober historical analysis with aspects of memoir.  This approach makes for compelling reading.  See Emily K. Abel, Sick and Tired: An Intimate History of Fatigue  (University of North Carolina Press. 196 pp.  2021).

            And the book, treating an example of “contested illness,” will be of interest to members of the workers’ compensation community.

            Fatigue itself is not reflective of a discrete injury or disease (as she says, “there are no diagnostic codes for fatigue”), but is a complaint often offered by patients (including injured workers) who are describing the aftermath of their injury and treatment.  The most commonly-encountered example by this writer is the easy one: the worker who is medicating (or over-medicating) for pain and expresses an inability to return to work because of the dangers of driving while drowsy.

            Abel briefly mentions this situation, but the fatigue upon which she focuses is the post-injury or post-medical treatment condition of extreme lethargy that impairs individuals from some or all of the normal activities of daily living. The leading currently-recognized malady is Chronic Fatigue Syndrome (CFS), and of special interest to Abel is the malaise which can often follow cancer treatment. 

            Abel demonstrates that, over the decades, complaints of fatigue have been looked upon with suspicion by a society which has long viewed “productivity [as] the only measure of human worth.”  She analogizes this phenomenon to the intolerance of both the medical profession and society to sufferers of long-term chronic pain and other “contested illnesses,” like chronic Lyme Disease, that implicate long-term disability. 

            Abel identifies and critiques three themes that she detects in the socio-historical record of how fatigue has been treated.  All of these, notably, touch on how lawyers and judges think about disability.

            She first concentrates on what she calls the rejection by modern medicine and society of sufferers’ subjective accounts of exhaustion (she calls this “embodied knowledge”).  Most doctors and systems (like disability systems) demand that objective signs of pathology must be evident before a condition can be legitimated. This thinking echoes, of course, the familiar IME doctor refrain that objective signs of injury must be detectable before complaints of pain can be credited.  

            She reviews, secondly – and throughout the book – society’s devaluation as unproductive, and hence burdensome, those who, because of chronic conditions, are unable to work.  This societal view, which the author decries, is pervasive in our field, where the worker who refuses to return to modified duty is often cast as a burden on the employer, the insurance carrier, and the community at large.

            Abel analyses, in her third and most compelling discussion, the “triumphal recovery narrative” which is so popular in both medicine and the disability insurance community. A dependable standby of workers’ compensation seminars is, indeed, the speaker who contrasts the disappointing long-term disability claimant with the much-more-seriously-injured worker who has recovered, shown “resilience,” and excelled.  Injured workers are encouraged by such speakers to follow the example of Christopher Reeve, whose quadriplegia did not prevent him from continuing with a fulfilling and productive life. 

            Of course, the answer to this rhetoric, typically offered by motivational speakers, is that heroism is not, or should not be, the standard.  As the author, reflecting on precisely this point, states, “physical imperfection is a condition of human life, rather than a cause for shame …, disability arises as much from social arrangements and cultural attitudes as from physical impairment, [and] … everyone cannot be expected to overcome whatever adversity strikes ….”  She is correct: we all admire the strong-willed, the person of true grit, and the resilient. But on the other hand, not everyone is Superman.

            The author’s historical review of how fatigue has been diagnosed by doctors and regarded by society over the last 150 years will educate and enlighten the disability professional.  The book follows through, further, on its promise of intimacy. Abel, in this regard, affectingly recounts not only her struggle with breast cancer but her childhood and how the then-current scourge of polio affected her and her thinking about how one must respond to disease, surgical intervention and, finally, its exhausting aftermath.      

July 11, 2021 | Permalink | Comments (0)