Workers’ Compensation Law Prof Blog

NFIB v. Department of Labor, OSHA in a Few Sentences

In my first reading of the opinion this morning, I conclude that all the Supreme Court said in the big National Federation of Business vs. OSHA case is that OSHA does not have the statutory authority to regulate what workers' compensation folk know as "non-employment risks." Completely missing from the opinion is any sophisticated discussion of when an elevated neutral risk becomes de facto an employment risk. Importantly, the Court did not even say that Congress lacked the Constitutional authority to regulate non-occupational risks. There was a hat-tip to the historic prerogative of states to regulate health and safety under police powers, & etc. But I do not read anything in the opinion suggesting that if a more serious disease rolled through the country Congress would be without authority to amend OSHA, or pass a new law, to compel vaccination. (I was somewhat surprised that the Fourth Amendment was not discussed -- though I may have missed it -- because the question of seizure of the body will eventually be implicated). The opinion--the "major questions" doctrine nowithstanding--avoids real constiutional scrutiny. I have very little doubt the case would have come out differently if it were litigated in the early days of the pandemic and we'd had an active rather than a passive iteration of OSHA at that time. 

Do I think Congress would amend OSHA in reaction to this case in the next few years? No. I'd be surprised if Congress could amend a lunch order in the current environment. The Senate even voted to disapprove the rule. And this obvious fact will bring us back to an important question. If existing OSHA cannot lawfully regulate non-occupational harms under the very unsophisticated definition of "occupational" harm rolled out by the Court, does that completely open the door for states to simply duplicate state regulations consistent with what the Court insists is beyond OSHA's power?  It would be pretty hard to argue preemption now. I guess we'll find out. 

Sooner ot later we have to figure out how to cover "mixed" risks.

Michael C.Duff  

Teaching Workers' Compensation and Scheduled Partial Benefits

As we enter 2022, the 50th Anniversary of the National Commission's 1972 Report on the structural inadequacy of workers' compensation, I've had the real privilege of teaching workers' compensation at three separate law schools in the last six months (Saint Louis University, Fall of '21; Washington University of St. Louis, January Intersession of '22; University of Wyoming, Spring of '22). Each time I teach the course I emphasize the irrationality of permanent partial scheduled benefits: loss of an arm equals 200 weeks times the total benefit rate, often paid out as a lump sum benefit. Why? From whence does the 200 weeks arise?  Oh, I can tell you that the first state to implement such partial scheduled benefits was New Jersey, during the second decade of the twentieth century. And I'm pretty sure it was some kind of concealed bait and switch: paying 200 weeks times two-thirds of the average weekly wage will always be cheaper than paying a substantial percentage (the original statutes provided 50%) of an employee's actual wage loss during the entire period of the disability. But no one can even tell me where "200 weeks" came from in the first place; even Arthur Larson did not know and adamantly emphasized that workers' compensation theory is predicated on the wage loss principle. I discuss this at length in a 30,000 word "cosmic" workers' compensation article, the draft of which I have just completed and which is being proofed at this very moment (I'll be submitting it to the law reviews in just over a week). From my draft:

The [1972] Commission’s report made clear that no consensus had been reached on essential recommendations pertaining to permanent partial disability benefits.[1] This statement does not seem entirely accurate. The report recommended the removal of schedules used to calculate permanent partial disability benefits from workers’ compensation statutes. This decision seems a concession that use of scheduled benefits did not deliver adequate benefits; an important finding given the predominance of scheduled permanent partial disability benefits in contemporary workers’ compensation systems:

Almost every workmen’s compensation statute contains a schedule which stipulates the benefits to be paid for the listed impairments. These schedules in some cases may provide a short-cut to the determination of the benefits to be paid, but that is not an adequate justification for their use. Present schedules include only a small proportion of all medically identifiable permanent impairments. Also, some schedules have not been revised for many years, despite considerable progress in the understanding of the relationship between specific injuries and extent of functional impairment.[2]

Although the report went on to say that the AMA Guides represented a more rational basis for determining impairment,[3] it offered no rationale for any use of physical impairment-based determinations of permanent partial disability. Seemingly to the contrary, the report soundly rejected calculation of partial benefits based solely on physical impairment:

 Some statutes incorporate a schedule of benefits for a specific list of impairments, and the benefits are paid whether or not there is a disability. Moreover, the benefits are the exclusive remedy for workers with these impairments (except, in most States, for the temporary total disability benefits paid during the healing period), even if the worker’s wage loss far exceeds the scheduled benefits . . . It could be argued that the main purpose of such a schedule is to provide benefits for disability, and that impairment is used as the basis for benefits because impairment and disability are closely related. The validity of this argument is questionable because there is no exact relationship between the degree of impairment and the extent of wage loss.[4]

[1] Report of the National Commission at 19-20.

[2] Id. at 69.

[3] Id.

[4] Id. at 68.

A consistent theme of my teaching is that whatever one thinks about the original quid pro quo (and I do not have fuzzy thoughts about it -- I am a deep critic) permanent partial benefit schedules do not even pass the straight face test - they represent a straight-up confiscation even under Grand Bargain theory. I will let you know when my long paper has been placed for publication.

Michael C. Duff

 

 

Pennsylvania Court Upholds Award to Worker who Sustained Injury due to Flu Shot (Home Depot, 12.23.2021)

           The Commonwealth Court of Pennsylvania (an intermediate appellate court) held, on December 23, 2021, that the WCJ, in his grant of an original claim for a flu-shot-induced “transverse cervical myelitis,” did not rely on the purportedly incompetent opinion of claimant’s expert.  That expert, the court stated, did not rely on a hypothetical without a basis in the record, nor did he rely alone, and in in critical aspect, on the hearsay report of a California-based consultant (Dr. Lawrence Steinman, of Stanford) on the issue of causation.  Meanwhile, the WCJ had legitimately rejected the testimony of employer’s expert that claimant’s permanently impairing condition had nothing to do with his cervical spine pathology but was, instead, reflective of the natural progression of preexisting cervical stenosis and the effects of delayed surgical intervention for the same.

            The parties, WCJ, and court all took for granted, correctly, than an injury-causing inoculation sustained at an on-site, employer-sponsored flu shot clinic constitutes an injury arising in the course of employment and (as shown by the credible expert proofs), medically-related thereto.  Under the Pennsylvania Act, an "injury" is any adverse and hurtful change sustained by an individual. 

Home Depot USA, Inc. v. Noorami (WCAB), No. 113 C.D. 2021, filed 12.23.2021, 2021 WL 6069521 (Unreported, Pa. Commw. 2021).

Full Text: https://www.pacourts.us/assets/opinions/Commonwealth/out/113CD21_12-23-2120211223_092146_8773119.pdf?cb=1.

Pennsylvania Supreme Court: In Upset, Employers Now - at WCJ's Discretion - to Pay Attorney's Fees on Top of Claimant's Award

The Pennsylvania Supreme Court, in a holding at odds with custom and practice, has held that, in all cases where a claimant prevails, the employer is, at the WCJ’s discretion, responsible for claimant’s attorney’s fees.  This is so even when the employer has maintained a reasonable contest.  The decision was unanimous; the court discerned no ambiguity attending the key statutory language.  

Under the longstanding prior practice, the claimant would bear his or her attorney expenses by paying a maximum 20% contingent fee out of his or her share.  Only when the employer had a manifestly unreasonable (arbitrary and capricious) contest would the employer have to pay claimant's fees.  And the Appeal Board, on intra-agency review, always granted a stay on fees (not on the worker's award) in the event of an employer appeal.       

The statute and the foregoing custom and practice is 50 years old, so this 2021 interpretation by the Supreme Court has upset the apple cart in the Pennsylvania practice.  Presumably, the value of claims will be enhanced and carriers will have to review premium levels.  A skilled lawyer colleague of this writer refers to the case as a "game-changer."  (Any comments here are strictly those of the writer.) 

***

Lorino v. W.C.A.B. (Commonwealth of PA/Penn DOT), ___ A.3d ___, 2021 WL 6058030, filed 12.22.2021 (Pa. 2021).
 
          The Supreme Court, in a holding at odds with custom and practice, has held that, in all cases where a claimant prevails, the employer is, at the WCJ’s discretion, responsible for claimant’s attorney’s fees.  This is so even when the employer has maintained a reasonable contest.  The decision was unanimous; the court discerned no ambiguity attending the key statutory language. 

          The holding, arguably addressing a sleeper (though long identified) issue – lo these many years – is based upon a reading of Section 440(a), 77 P.S. § 996(a). That statute provides, in pertinent part, that in “any contested case … the employe … in whose favor the matter has been finally determined in whole or in part shall be awarded … a reasonable sum for costs incurred for attorney’s fee …[.] Provided that cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer ….” (Emphasis added.)     

          The Supreme Court held that the term “shall” means that an award of fees is mandatory.  Meanwhile, the term “may” indicates that an award of fees is not “automatic” – the determination is for the WCJ, in his or her discretion, on a case-by-case basis. The court, notably, was confident that WCJs were equipped for the task, despite employer’s anxiety that “no standards are provided.” The court, on this point, responded, “We are confident [that] judges will apply their discretion based on the humanitarian and remedial purposes which underlie the WCA.”  Slip op. at p.11, note 7.       

Torrey's Note 1: The court distinguished (effectively overruled) a 1991 Commonwealth Court case where the Section 440 issue was current.  The court there stated, “attorney’s fees are not automatically awarded to a successful claimant under Section 440, when the employer has presented a reasonable contest.”  Mason v. W.C.A.B. (Wheeling-Pitt), 600 A.2d 241 (Pa. Commw. 1991). But, of course, the Supreme Court in this new case is not holding that the award is mandatory; it is discretionary.

Torrey's Note 2: An award of fees on top of compensation where a reasonable contest has been found is foreign to our Pennsylvania sensibilities.  Still, in some states this is the rule, and employers, presumably, simply insure for the same as part of their premiums.  Florida is a major example; New Hampshire is another.  In the latter state, the agency establishes the hourly fee to be assessed by the judge.  Perhaps it was this type of regime that the legislature, fifty years ago, was contemplating.  

Torrey's Note 3: The WCJ has, seemingly, been supplied with significant authority: “An abuse of discretion occurs where the WCJ's judgment is manifestly unreasonable, where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Allegis Group v. W.C.A.B. (Coughenaur), 7 A.3d 325, 327 n.3 (Pa. Commw. 2010).

Torrey's Note 4: The lack of any “brightline” as to when to exercise discretion on fees, and how much to award, will be a concern among the WCJs.  Appeals over abuse of discretion may, similarly, be a headache.   

Torrey's Note 5: The court’s holding is not limited to medical-only cases.

Torrey's Note 6: The crux of the court’s holding is found in two paragraphs, which I will reproduce here: 

Based on the established meaning of the terms “shall” and “may,” under Section 440, when a contested case is resolved in favor of an employee, a reasonable sum for attorney’s fees shall be awarded to the claimant. Such an award is mandatory. Where, however, the employer has established a reasonable basis for the contest, an award of attorney’s fees may be excluded. In other words, the WCJ is permitted, but not required, to exclude an award of attorney’s fees. The Commonwealth Court below, in “always interpret[ing] Section 440 to mean that ‘attorney[s’] fees shall be awarded unless a reasonable basis for the employer’s contest has been established,’” … disregarded the distinction between the terms “shall” and “may,” and failed to recognize the discretion afforded to the workers’ compensation judges to award attorney’s fees even when they find a reasonable basis for an employer’s contest.
 

To be clear, we do not suggest that, under Section 440, a WCJ may never deny an award of attorney’s fees when the employer has established a reasonable basis for its contest. As explained above, the language of Section 440 affords the WCJ discretion to refuse an award of attorney’s fees in such circumstances. Rather, it is the Commonwealth Court’s interpretation of Section 440 as a per se disqualification of an award of claimant’s attorney’s fees where the employer has established a reasonable basis for its contest which is contrary to the plain language of the statute.  

Slip op. at 10-11.

Full Text: https://www.pacourts.us/assets/opinions/Supreme/out/J-58-2021mo%20-%20104992019155173360.pdf?cb=1

"Worker Protection Bill," The National Labor Relations Act, and Worker Safety

Although not directly related to workers' compensation, in the aftermath of tornado-related worker deaths in Illinois and Kentucky there have been a number of news stories discussing the need for a worker protection law of some kind. But as I told David Sirota recently, there already is such a law. It is called the National Labor Relations Act.  

Section 7 of the NLRA protects the rights of employees to engage in concerted protests, including concerted work stoppages, over what the employees believe to be unsafe or unhealthy working conditions. Section 502 of the NLRA, as amended by the Labor Management Relations Act (LMRA), states that cessation of labor by an employee or employees, in good faith, because of abnormally dangerous conditions for work at their place of employment is not deemed a strike. It is noteworthy that employees, not unions, possess these rights, although the statutory context of Section 502 assumes union representation. The difference between the two sections is that under Section 502, unionized employees working under a collective bargaining agreement with a "no strike provision" must have an "objectively reasonable" basis for walking off the job for safety reasons. If they have an ojectively reasonable basis, their action is not a strike, and they have therefore not violated their contractual no strike provision (which could lead to legal liability). Non-union employees concertedly walking off the job for safety reasons need only have a "good faith belief" that they are in danger. Paradoxically, union employees may have a greater chance of being second-guessed for safety-related decisions than non-union employees. The lead case for what I have just asserted is Labor Board v. Washington Aluminum Co., 370 U.S. 9 (1962). Isn't it odd how few people know that the NLRA applies to all employees (not just unionized employees) engaging in "protected concerted" activities? The breadth of Section 7 of the NLRA is enormous. We already have a worker protection law.

Employees have six months to file a charge with the National Labor Relations Board (NLRB).

I should also note in passing an interesting recurring issue in workers' compensation "Act of God" cases. Employers (and their carriers) resisting workers' compensation claims in such situations may be opening themselves to tort claims. If the weather knocks the Amazon warehouse down because it was negligently designed or built, workers' compensation exclusivity (which confers tort immunity) may be the employer's best friend. Be careful what you argue.

Michael C. Duff

 

Of Tornado Alleys and Workers’ Compensation

When I wrote the short piece, “Will Workers’ Compensation Work in a Mega-Risk World,” I did not have exactly in mind the overnight death of workers’ at an Amazon facility resulting from freakish (or maybe not so freakish) tornados in mind. But I had something like that in mind: I suspect that pandemics and climate change are related. The families of those workers killed will seek compensation. They will likely have access to a variety of benefits systems. And they will likely be woefully undercompensated. To the extent anything like the negligent construction of the Amazon warehouse, or negligent handling of the aftermath of the calamity begins to surface, we will hear cries that Amazon should be immune from liability as a matter of law because the event was unforeseeable (tornados in December?)—a claim you can believe if you like, but one that loses force the second time around (and I have no doubt there will be a second time around). On the workers’ compensation side of the equation, the defense argument may be that the workplace did not increase the risk of dying because of this “Act of God.” The argument would “work” in some states, but not work in others. I have written about an expanded conception of workers’ compensation causation here (forthcoming in 2022 in the San Diego Law Review). 

My colleague Judge David Torrey wrote on this blog back on November 14 about the impending 50th Anniversary of the National Commission on Workmen’s Compensation that issued a report in 1972 after receiving an investigative mandate in the OSH Act of 1970. I will have a great deal to say about that report soon. Its genesis, in a nutshell, was undercompensation, and I’ll be writing in subsequent posts and articles about how the Federal government and the Council of State Governments understood, as early as 1955, and as reflected in several intragovernmental reports I’ll be analyzing, that undercompensation both shifts the costs of injury in unpredictable ways and provokes structural introspection and arguments for reform or more than reform. 

It comes down to this. When confronted by the reality of injury, illness, and death emerging from foreseeable, predictable economic activity (I’m thinking specifically of “work,” but I suppose we could become more cosmic), any legal system has only a few ways it may proceed. It might compensate through something like a tort system, when obviously wrongful conduct has been perpetrated by an identifiable wrongful actor, with the bad actor entirely footing the bill for the costs of injury. That kind of tort system, for a whole variety of reasons, will lead to uneven coverage: a few big injured “winners,” and many more injured losers. But if the “wins” are big enough it might make the world safer in the long run.  

Alternatively, a legal system might opt to compensate anyone who is the victim of socially useful working activity; both because it is cheaper than trying to find out who was “wrong,” and because it seems unjust for those who profit from the working activity of human beings not to contribute to the costs arising inevitability (or so we are told) from those workers being hurt or killed. This system breaks down at times because those who pay the costs of injury (employers and their carriers) predictably control the costs of payout by very tightly defining eligibility—sometimes to the point where a disinterested observer might be led to wonder if we are looking at the same system. Of course, the workers’ compensation system began as an anti-destitution rather than a make-whole structure. (The earliest systems provided 50% of the average weekly wage as a benefit with no provision for ongoing medical benefits).  

We have been papering over the undercoverage of state compensation systems (whether tort or workers’ compensation) by implementing “Ken Feinberg” systems whenever duty, breach, or causation problems become difficult. That is certainly another approach a legal system might logically take: if it won’t fit in the torts or workers’ compensation bucket, get another bucket. The problem is that the interplay between these three buckets will become extremely complex over time and raise the question of whether we should not have a different, bigger bucket.  

And, of course, a legal system might decide that it prefers not to compensate victims at all for reasons of “efficiency.” When that de facto insulation of employers (or others) from liability extends to harm wrongfully caused, however, we run into questions of constitutional limits. As I am developing in a paper that  I have been writing over the last six months or so, I believe there is a constitutional right to personal security (one of William Blackstone’s absolute rights - see *129-134 here). A government that will not protect me from the wrongful conduct of others by affording an adequate remedy for injury encroaches on my personal security. 

In the end I wonder if events like the terrible tornados in Edwardsville will propel us to a Triangle Shirt Waste Fire state of mind to redouble efforts to adequately compensate the victims of work injury and death (and their families). 

Michael C. Duff          

2022: The 50th Anniversary of the Report of the National Commission on State Workmen's Compensation Laws

        The year 2022 will mark the 50th Anniversary of the 1972 publication of the Report of the National Commission on State Workmen’s Compensation Laws.    

        That report condemned the current status of compensation laws (limited coverages, poverty-level rates) as a national disgrace and set forth, among other things, nineteen essential recommendations for a modern law.  Professor John F. Burton, Jr. (chairman of the commission), features the National Commission’s Report on his website, http://workerscompresources.com/.

            On this blog we will, over the ensuing months, be commenting about the National Commission and its report. 

            The commission, in that report, expected states to follow the nineteen essential recommendations, lest Congress consider enforcement of the same, in some manner, on the federal level.

        Here, in summary, are the nineteen essential recommendations:

R.2.1(a). That coverage by workmen’s compensation laws be compulsory and (b) that no waivers be permitted.

R.2.2. That employers not be exempted from workmen’s compensation coverage because of the number of their employees.

R.2.4. A two-stage approach to the coverage of farmworkers. First, as of July 1, 1973, each agriculture employer who has an annual payroll that in total exceeds $1,000 be required to provide workmen’s compensation coverage to all of his employees. As a second stage, as of July 1, 1975, farmworkers be covered on the same basis as all other employees.

R.2.5. That as of July 1, 1975, household workers and all casual workers be covered under workmen’s compensation at least to the extent they are covered by Social Security.

R.2.6. That workmen’s compensation be mandatory for all government employees.

R.2.7. That there be no exemptions for any class of employees, such as professional athletes or employees of charitable organizations.

R.2.11. That an employee or his survivor be given the choice of filing a workmen’s compensation claim in the State where the injury or death occurred, or where the employment was principally localized, or where the employee was hired.

R.2.13. That all states provide full coverage for work-related diseases.

R.3.7. That, subject to the State’s maximum weekly benefit, temporary total disability benefits be at least 66 2/3 percent of the worker’s gross weekly wage.

R.3.8. That as of July 1, 1973, the maximum weekly benefit for temporary total disability be at least 66 2/3 percent of the State’s average weekly wage, and that as of July 1, 1975, the maximum be at least 100 percent of the State’s average weekly wage.

R.3.11. That the definition of permanent total disability used in most states be retained. However, in those few States which permit the payment of permanent total disability benefits to workers who retain substantial earning capacity, that our benefit proposals be applicable only to those cases which meet the test of permanent total disability used in most States.

R.3.12. That, subject to the State’s maximum weekly benefit, permanent total disability benefits be at least 66 2/3 percent of the worker’s gross weekly wage.

R.3.15. That as of July 1, 1973, the maximum weekly benefit for permanent total disability be at least 66 2/3 percent of the State’s average weekly wage, and that as of July 1, 1975, the maximum be at least 100 percent of the State’s average weekly wage.

R3.17. That total disability benefits be paid for the duration of the worker’s disability, or for life, without any limitations as to dollar amount of time.

R.3.21. That, subject to the State’s maximum weekly benefit, death benefits be at least 66 2/3 percent of the worker’s gross weekly wage.

R.3.23. That as of July 1, 1973, the maximum weekly death benefit be at least 66 2/3 percent of the State’s average weekly wage, and that as of July 1, 1975, the maximum be at least 100 percent of the State’s average weekly wage.

R.3.25(a). That death benefits be paid to a widow or widower for life or until remarriage, and (b) In the event of remarriage, two years’ benefits be paid in a lump sum to the widow or widower; (c) That benefits for a dependent child be continued at least until the child reaches 18, or beyond such age if actually dependent, or (d) at least until age 25 if the child is enrolled as a full-time student in any accredited educational institution.

R.4.2. There be no statutory limits of time or dollar amount for medical care or physical rehabilitation services for any work-related impairment.

R.4.4. That the right to medical and physical rehabilitation benefits not terminate by the mere passage of time.

In Pennsylvania Case, Worker did not Commit Benefits-Disqualifying Misconduct by way of his Inability to Engage in Direct-Observation Urine Test

          The Pennsylvania Commonwealth Court, affirming the WCJ and Board, has held that the claimant, after an acknowledged injury, successfully proved his ongoing TTD case, despite the employer’s argument that he had (this writer’s term) engaged in post-injury misconduct (to wit, a purported willful refusal to undertake a drug test) such that he had been fired for the same and was necessarily not available for potential modified work.  The WCJ – the Board and court explained – had found as hard fact that the claimant, after having provided the required urine sample, had been unable to provide a second under-personal-observation sample, and hence he had not in fact engaged in a willful refusal to undergo drug testing. 

        The case is Bear Staffing v. Shawn Logan (WCAB), No. 949 C.D. 2020, filed October 15, 2021, 2021 WL 4806715 (Pa. Commw. 2021).

        As noted below, the Ohio Supreme Court, in a case called Lunsford, addressed the issue of direct-observation urine screening in an August 2020 case. 

        Claimant, Logan, was employed – via the defendant staffing company – at a chocolate factory.  He fell and struck his head, became unconscious, and was taken away to the emergency room.  The next day, he reported, as requested, to WorkNet.  There, he was negative for alcohol use.  He also provided a urine sample, but it exceeded the temperature threshold (100 degrees), so the sample was considered invalid.  Claimant was immediately asked to provide a second sample. He entered a private room with the WorkNet physician Dr. Oteri (later to testify) for personal observation of the second urinary discharge. Claimant, however, was to state that he was unable to provide a second sample (1) immediately after the first; and (2) under personal observation.  He thereafter left the facility angry and objecting that the process violated his privacy rights.   

          The carrier issued a medical-only NCP but, at the same time, employer fired claimant. Employer, throughout, took the position that claimant, by being fired for violation of the drug-testing policy, had committed such misconduct that he could not be considered for modified work.  Employer hence took the position that the immediate cause (DBT term) for claimant’s loss of earning power was not his injury but, instead, his own fault.     

          In the claim-petition proceedings which followed, the claimant testified and also presented his medical expert.  Employer presented an IME – which had supplied an opinion that supported a cross-petition for termination.  Employer, meanwhile, presented its representative to explain the firing, and the testimony of Dr. Oteri and another WorkNet employee as well.

          The WCJ granted ongoing benefits; he “expressly [and repeatedly] credited Claimant’s testimony that he did not intentionally refuse to comply with Employer’s drug-testing policy, and that he was unable to comply because he could not produce a second urine sample while being observed….”  Meanwhile, the judge generally credited employer’s testimony that it had drug a policy and that claimant had agreed to the same when first employed.  As to the medical, he credited claimant’s physician as to disability and discredited the IME. 

          The Appeal Board affirmed, as has Commonwealth Court. 

          True, certain post-injury conduct on the part of an injured worker that results in termination can act as a superseding cause (DBT term) in the disability analysis.  This is so if the firing disqualifies the worker from presumably available modified duty. See Stevens v. WCAB (Consolidation Coal Co.), 760 A.2d 369 (Pa. 2000) (“once a loss of earning capacity has been demonstrated, the claimant generally should be entitled to disability benefits; however, such benefits are not warranted where the employer can demonstrate that employment is available within the claimant’s restrictions or would have been available but for the claimant’s lack of good faith resulting in a discharge from employment.”). And see Edwards v. WCAB (Sear’s Logistics), 770 A.2d 805 (Pa. Commw. 2001) (principle applied to disqualify claimant).     

          The conduct, however, does not precisely equal willful misconduct as defined under the unemployment compensation law.  In workers’ compensation, the leading case articulates the test of willfulness for bad faith/fault purposes as follows: “to make out ‘bad faith’ or ‘fault on the part of the discharged claimant,’ if an employer only shows that he or she ‘would if he or she could,’ then ‘bad faith is not shown and benefits should continue ….; but if an employer establishes that the claimant ‘could if he or she would, and didn’t,’ ‘bad faith is established and a claimant is not entitled to ... benefits.” Slip op. at 12-13 (citing Virgo v. WCAB (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Commw. 2005)).

          Here, the court stated, “[t]he WCJ’s findings … amply support the proposition that, with respect to providing a second urine sample under observation, Claimant ‘would if he could,’ but he could not.”

          In essence, the manner in which the WCJ found the facts (a point which both Board and court emphasized) as to the WorkNet encounter was the beginning and end of the critical analysis.

Note 1: The claimant argued on appeal that the employer’s proofs of supposed forfeited job availability were deficient, as no specifically-forfeited job meeting claimant’s restrictions had been evidenced.  The court identified but did not decide the issue.  The point is certainly of interest; with the rise of the contingent workforce and its many temp and staffing agencies, how the latter are to accommodate light-duty workers has been an issue.  Presumably their clients are not interested in providing such work – the whole idea of using a staffing company is flexibility and the lean payrolls that flexibility facilitates. Staffing companies, meanwhile, have no real worksites of their own.  

Note 2: In 2020, the Ohio Supreme Court addressed a similar situation involving direct-observation.  Lunsford v. Sterilite of Ohio, 165 N.E.3d 245, 2020 WL 5033054 (Ohio 2020).  This type of requirement is apparently widespread.  See Angela Childers, Ohio Employers Have Right to Directly Observe Workers’ Urine Screens, Business Insurance (8.8.2020),   https://www.businessinsurance.com/article/20200828/NEWS08/912336377/Ohio-employers-have-right-to-directly-observe-workers’-urine-screens-Lunsford-v?utm_campaign=BI20200828BreakingNewsAlert&utm_medium=email&utm_source=ActiveCampaign&utm_campaign=BI20200828BreakingNewsAlert&utm_medium=email&utm_source=ActiveCampaign.

Full Text: https://www.pacourts.us/assets/opinions/Commonwealth/out/949CD20_10-15-21.pdf?cb=1. 

New Article Explains Pennsylvania Law as to Compensability of Infectious Diseases, Reports on COVID WCJ Adjudications

            The Pennsylvania Workers’ Compensation Act features no statutory presumption of causation for COVID-19.  Yet, infectious diseases, including COVID, were, and are, as a matter of legal causation, compensable under the law.

            They are compensable under our state’s two tracks of recovery approach.  The first track of recovery for infectious diseases is under the occupational disease provisions of the law. Section 301(c)(2) establishes that the term “injury” encompasses occupational diseases.  One cross-references, meanwhile, Section 108 of the Act for the familiar list of those occupational diseases.  They are paired with occupations in which certain diseases have been shown – or are thought to be – special hazards. The worker who suffers from the disease who has labored in the associated occupation enjoys a rebuttable presumption of causation.  The presumption is found in Section 301(e) of the Act.

            The second track of recovery for infectious diseases is under the injury section itself, that is, Section 301(c)(1).  As detailed below, the Supreme Court, in 1987, declared that “injury” means an adverse or hurtful change.  This was so held in the landmark case Pawlosky v. WCAB (Latrobe Brewing Co.).

            Of course, seeking to prove medical causation is another issue. In this regard, many physicians seem shy to assign work causation in disease cases. Too many opportunities for hazardous exposures exist for physicians, even sympathetic treating doctors, to want to vouch for causation in such cases.  This seems to be the case in the realm of COVID.

            At the time of this writing (August 2021), two Pennsylvania workers’ compensation judge decisions exist where claims of illness from work-related COVID exposure were considered.  In one, the claimant (a nurse) did not submit an expert report, and her claim failed.  In the other, notably, the claimant (the widow of a correctional officer) did submit such expert medical evidence and, aided by impressive exposure evidence, prevailed in her claim.   

            In a new article, the writer explains the Pennsylvania statutory scheme, including how the long-existing general presumption law (Section 301(e)) works for enumerated diseases, shows that many infectious diseases have been compensated over the years, and reports briefly on the two new trial-judge-level COVID adjudications noted above.  

See David B. Torrey, Infectious Diseases: Compensability, COVID-19, and Related Issues Under the Pennsylvania Workers’ Compensation Act, Pennsylvania Bar Association Workers’ Compensation Quarterly Newsletter, Volume VII, No. 147, pp.33-45 (August 2021).

Download Infectious Disease Compensability Under the Penna Work Comp Act     

Greetings from Saint Louis and "What Covid Laid Bare"

I'm writing this post in scorching Saint Louis, where I am a visiting professor at Saint Louis University School of Law for the fall semester teaching workers' compensation and torts. It is always interesting to gain exposure to another state's workers' compensation law. And this is the first time I have ever taught these two subjects in the same semester. That, too, is an interesting exercise. It has been quite a while since I blogged, and I thought I would start out by introducing my forthcoming article in the San Diego Law Review: What COVID-19 Laid Bare: Adventures in Workers’ Compensation Causation. Here is the abstract:

This essay performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees.

 

Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease employers seldom pay benefits (and states do not compel them to do so). This is one reality that COVID laid bare: the workers’ compensation system rigidly resists paying occupational disease claims. The essay also explores a news account from Minnesota stating that nine hundred and thirty-five of nine hundred and thirty-five workers’ compensation COVID-19-related claims from meatpacking employees had not been paid as of February 2021. There was no shortage of other stories during the pandemic of mass denial of workers’ compensation claims in the meatpacking industry, a development having a disparate impact on communities of color, where more than half of all meatpacking employees are Latinx. These unpaid claim numbers suggest that something was “wrong” with causation analyses lower down in the administrative system.

 

Another truth COVID laid bare is that, aside from workers’ compensation, there is no nationwide short-term disability program in the United States. This leads to the conclusion that, if workers’ compensation insists upon super-strict versions of causation to cover claims, a different method of compensating short-term disability during pandemics or other “environmental” crises may become necessary. The conclusion seems almost inescapable because public health experts like Dr. Fauci are warning that we remain at risk for “new disease emergences” for the “foreseeable future.”

You can access the entire essay here.

I'll be doing a lot of workers' compensation writing and research here at SLU Law -- which is home to the Wefel Center for Employment Law and edits the ABA Journal of Labor & Employment Law. I'm feeling very much in my element.

Michael C. Duff

New, Practical, Hospital Risk Management Article Focuses on Injuries to Volunteer Providers

        In a new, practical, article – falling into the category of risk management counseling – the authors identify and explain the federal statutory and regulatory authorities which govern hospital planning for emergency conditions, with a focus on the thorny issue of how such institutions are to address injury or death sustained by volunteer workers.  Workers’ compensation and tort immunity are themes throughout.  See John I. Winn, Seth Chatfield & Kevin H. McGovern, Medical Volunteers During Pandemics, Disasters, and Other Emergencies: Management Best Practices, 11 Seattle Journal of Technology, Environmental & Innovation Law 282 (2021), https://digitalcommons.law.seattleu.edu/sjteil/vol11/iss2/2/.

        The authors devote a special part of the article to workers’ compensation coverage considerations.  The authors – no surprise – identify a variety of state laws on workers’ compensation and volunteers that injects uncertainty into the coverage analysis. In this regard, some states can be identified as providing coverage for volunteers, while others cannot be so identified. 

        Meanwhile, a hospital’s attempt to require a “volunteer liability release” is fraught with similar uncertainty: “Consideration [of] the use of volunteer liability releases would require a detailed analysis of the host state’s statutory and case law.”

        The authors review the National Incident Management System (NIMS), a project of FEMA, which, among other things, generally establishes that, in an emergency where workers are dispatched from a foreign state into the area of the emergency, the “sending state’s workers’ compensation provisions as well as tort liability statutes generally cover deployed personnel.” These and related plans have a shortcoming, however, in the lack of provisions for utilization of private sector volunteers.

        The authors do identify a law, the Uniform Emergency Volunteer Health Practitioners Act, drafted “to address the complexity of workers’ compensation for cross-border volunteer healthcare practitioners,” but only eighteen states and D.C. have adopted its provisions.  

        The authors strongly advocate that hospitals maintain emergency plans that address comprehensively the issue of volunteers.  “Preparation for worst-case scenarios,” they admonish, “involves consideration of all reasonable measures to mitigate the risk that responding volunteers may harm others … or injure themselves….” 

        The article concludes with a list of 18 volunteer-intensive hard recommendations/best practices for hospitals to consider in preparing or amending their emergency plans.  One of these is inclusion in the hospital’s Emergency Volunteer Handbook of an explanation of “whether (or which) volunteers will be covered by workers’ compensation or commercial insurance.”          

Skilled University of Chicago Law Student Categorizes the States as to COVID, Recommends Reforms for the Next Pandemic

            In a finely-wrought and sophisticated essay, a University of Chicago law student  seeks to catalog the response of state workers’ compensation laws to the challenges of the COVID pandemic.  He identifies four “novel categories” of laws, placing them “along a spectrum, from most likely to cover a meaningful number of workers to least likely.”  These categories, which he admits are largely based on a “textualist reading” of laws (as opposed to empirical data), are likely coverage states, selective coverage states, uncertain coverage states, and unlikely coverage states.

            The author correctly characterizes the current coverage situation as being fraught with uncertainty, which is neither advantageous for workers nor economically efficient.

            He recommends, in any event, that workers’ compensation laws be amended so that, during the next pandemic, frontline workers – which he calls “public-facing essential employees” – have, through “coverage” presumptions, a more certain remedy.

            See Dylan Moore, Striking a New Grand Bargain: Workers’ Compensation as a Pandemic Social Safety Net, ___ University of Chicago Legal Forum ___ (2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3834807.

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), https://digitalcommons.law.umaryland.edu/mlr/vol80/iss2/3/.

            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.” 

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: https://www.pacourts.us/assets/opinions/Commonwealth/out/569CD20_7-13-21.pdf?cb=1.

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.      

New Republic Article by Zaitchik Discusses COVID Long-Haulers ... and Their Disability Remedy

            Many in the workers’ compensation insurance industry have been trying to predict what costs COVID-19 will ultimately impose.  One line of thought is that most claims will be of short duration, with those found compensable perhaps only lasting weeks, and with de minimis medical expense.  Other claims analyzed in such projections, of course, are more costly occurrences.  Those are the ones featuring death. 

            Insurance industry commentators, however, are now recognizing another potentially expensive type of claim, that is, those COVID cases that become chronic.  The term for the condition is “Long COVID.”  The victims, meanwhile, have been called “long haulers.” 

            In a new article, which I highly recommend, the author interviews a number of Long COVID patients with an eye towards determining their typical symptoms, determining how they are treated by the medical field and, pertinently for our purposes, how they are to survive from an economic point of view.  Alexander Zaitchik, The Forever Disease: How COVID-19 Became a Chronic Condition, The New Republic, p.32 (March 2021),  https://newrepublic.com/article/161102/covid-19-long-haulers-chronic-disease-health-care.

            All of this is of interest to the workers’ compensation professional because it is chronic cases that can be the most challenging for the system.  And, notably, the author here compares Long COVID to a long-recognized condition we encounter in workers’ compensation, “chronic fatigue syndrome” (CFS).  Here the author refers to CFS in its full modern articulation, or Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, or ME/CFS.  ME/CFS is like another sometimes-chronic condition, Lyme Disease, encountered in workers’ compensation. 

            Both CE/CFS and chronic Lyme said to be are diagnoses with “no clear markers.”  In this article, the author assigns Long COVID to this this group of ailments: “Those who live with ME/CFS know full well the consequences of living in a medical no-man’s land.  Like Long COVID, ME/CFS usually has no clear biological markers. There are no on-label treatments.  Patients are often undiagnosed, misdiagnosed, or altogether dismissed by doctors.” 

            What are the symptoms of Long COVID?  The author identifies them as “headaches, nerve pain, cognitive dysfunction, hair loss, constipation, and extreme weight loss.”  A key symptom, however, is indeed like CFS – the same persistent fatigue that afflicted the COVID-19 victim in the first place.

            The author reports that researchers have long known that virus sufferers do not all have the same illness experience.  Some, indeed, develop a chronic condition.  The author remarks, “research on post-viral illnesses suggest that as many as half or more of those who survive the virus could suffer one or more symptoms for months or years.  Whatever the final number, the pandemic’s mortality rate will continue to be dwarfed by the long-hauler population.”  This fact leads to an issue pertinent to our field; a key issue as the population of chronic sufferers “is how to support and care for a new cohort of chronically ill Americans, possibly numbering in the millions.” 

            The remedy of workers’ compensation is not mentioned in the article, and none of the individuals interviewed alleges that they contracted the virus from a work exposure.  Thus, as one might expect, Social Security Disability is identified as the obvious remedy for the true long haulers.  “Most,” the author states, “will likely turn to their earned Social Security Disability insurance benefits….”  But will this really happen?  The author reports that, as of 2017, SSA reported that only about 13,000 individuals received this key benefit for the similar diagnosis of ME/CFS. 

            Of course, the author points out that SSD is an imperfect remedy for most, given the waiting period for both benefits and the accompanying Medicare card.  On this point, Social Security expert Nancy Altman told the author, “the mounting number of long haulers makes eliminating both waiting periods even more important.”  She adds, “in the meantime, some people found medically eligible may end up on SSI [Supplemental Security Income] and Medicaid, but that requires having virtually no income at all.” 

New Scholarship: Tort Liability for Aggressive Anti-Maskers

            In a timely article, a father and son pair of  Philadelphia-area authors theorize about the tort suits that might be filed by victims (mostly workers are hypothesized) of the aggressive behavior of that supremely uncivil and churlish breed of our fellow citizens: the willful anti-maskers.  See Andrew D. Cotlar & Joshua H. Cotlar, Liability Unmasked: Pennsylvania’s Tort Law Applied to COVID Anti-Maskers, Pennsylvania Bar Association Quarterly (January 2021).

            The authors first cite examples of instances (in Pennsylvania and throughout the U.S.) where workers in the midst of their labor are assaulted or threatened by anti-maskers.  Most of such acts are actually criminal in nature, but the authors observe that in many cases, the police are unable or unwilling to enforce the law.  Here, the authors posit, tort law can have a role: “This article argues that … tort law has traditionally served the function of expressing social norms and providing guidance, and incentives, for good behavior where the police power of the state may fail to be applied, and that liability for refusing to wear a mask during a health pandemic serves just this purpose.” 

            When a worker is physically assaulted and sustains injury by an anti-masker, this model sounds ideal.  In cases where the anti-masker’s aggression is deliberate exhalation on the worker, however, the same causation challenge that impairs the workers’ compensation remedy haunts a cognizable tort suit: “The greatest difficulty from a plaintiff’s perspective will likely be establishing that the plaintiff’s harms were caused by a particular encounter with a particular defendant, as distinguished from generalized conditions of the pandemic likely to cause similar effects.” 

            Still, the authors conclude, “A creative and persistent litigator may find this a challenge but conversely may also be able to develop the necessary basis for liability through proper eye-witness testimony, video surveillance, contact tracing and medical, psychological or economic expert testimony.”    

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. 

A Disguised Vaccination Mandate: Submit to Vaccination or Forego the Workers’ Compensation Causation Presumption

A workers’ compensation bill filed in the Illinois House on February 19 provides, “no compensation shall be awarded to a claimant for death or disability arising out of an exposure to COVID-19 if the employee has refused a vaccination.” 820 ILCS 305/7.5 new

This is a very sticky wicket. If the State may compel an individual to receive a vaccine, despite 4^th amendment considerations, then perhaps the provision is no big deal (even though it leaves a bad taste in my mouth). But if the State cannot compel receipt of the vaccine then I am at a loss to say how the provision does not amount to a prohibited conditioned benefit—a benefit conditioned on foregoing a constitutional right. See Perry v. Sinderman, 408 U.S. 593, 597 (1972); Sherbert v. Verner, 374 U.S. 398, 404 (1963).

Indeed I think workers’ compensation benefits implicate this principle even more strongly than the cases I just cited, which essentially stood for the principle that, even if creation of a right by Government (such as, say, a welfare benefit) is completely discretionary, the benefit may not be freighted with unconstitutional conditions: “you get this benefit only if you agree never to belong to any faith other than Christianity.” But in the case of workers’ compensation, the quid pro quo for a tort right, I resist the notion that the “benefit” received is completely discretionary. It is not a welfare benefit, it is a substitute for a historically conferred tort remedy of ancient lineage. So the state can take that benefit from me unless I assent to an unconstitutional invasion of my body?

As I say, if a mandatory vaccination is not an unconstitutional invasion of my body then my concern fades into the mist. In any event, it is a very unsavory way for the State to sneak into the law a vaccination mandate. If it is to be done, do it in the open.

Michael C. Duff     

Locking Down Nonliability—An Accidentally Close Reading of an Arkansas Covid-19 Bill

Today, I accidentally bumped into a recent Covid-related bill offered in the Arkansas House within the last couple of weeks that looked at first blush employee-friendly.  It would exempt Covid-19 from the otherwise categorical exclusion of “ordinary diseases of life,” deeming Covid an occupational disease that may be proven by “a preponderance of the evidence.” (Section 3). From the employee’s perspective, so far, so good. However, the bill also states under Section 2(a)(3):

Requiring an employee to perform work when the employer has knowledge that, within the normal course and scope of the employee’s job performance, exposure to coronavirus 2019 (COVID-19) or severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or any of its mutations is possible, likely, or certain is not intentional conduct that would remove the employer from the protections of this chapter.(emphases supplied)

This bill should be considered in the context of Arkansas Governor Asa Hutchinson’s prior Executive Order broadly granting business immunity for its negligent Covid-19-related conduct, with the caveat: “Immunity does not apply to willful, reckless or intentional misconduct.” (It is unclear from the text if the standard is meant to be the same as “gross negligence,” the caveat often mentioned in state immunity bills emerging elsewhere in the country).

Hutchinson’s decree, of course, immediately knocked Gig workers (deemed independent contractors and not employees) out of the box because in connection with Covid-19 harms they have no access to workers’ compensation law (as non-employees) and now have no access to remedies for negligently caused Covid harms. If tort law at the dawn of workers’ compensation had only allowed employees remedies for intentional torts there would have been no grand bargain. Why would employers need to bargain for reduced liability through workers’ compensation if they almost never lost cases? Make no mistake, the immunity standards are designed so that employers could almost never lose a tort claim (and workers' contingency lawyers would almost never take cases).

But the workers’ compensation bill under discussion is more stealthily harmful to regular employees. Where a state allows an exception to exclusivity for intentional torts, an employee could at least attempt to meet the higher tort standard (that an employer “knew to a substantial certainty” that an injury would occur, or something of the kind), especially in connection with egregious cases. Under this bill, even if the employer knew with certainty that it was requiring an employee to become exposed to Covid-19 (in other words, that intentional tort was nearly a foregone conclusion if causation were established), the employee’s remedy would be exclusively limited to workers’ compensation. All employee injury claims would be kept firmly in the workers’ compensation system. Civil court judges could quickly dismiss employee-filed tort claims on jurisdictional grounds.

Yet, the sweeping of Covid-19 claims into workers’ compensation is not accompanied by a causation presumption. A cynic might say this is therefore where claims will go to die (though I think the unprovability of Covid-19 under the traditional “arising out of” element has been vastly overstated). But assuming that a state system is acting as if Covid-19 cannot be proven by conventional “arising out of” means, this mechanism sweeping in claims is potentially a kind of “empty preemption”: just because workers’ compensation “covers” a claim does not mean the claimant will receive an award, meaning the employee could be left with no remedy if exclusivity applies blindly to all “covered” injuries. See Larson’s treatise, § 100.05. (Emily Spieler and John Burton have termed this phenomenon “dual denial” – See Spieler & Burton, “The Lack of Correspondence Between Work-Related Disability and Receipt of Workers’ Compensation Benefits” at 496).

You might say, “this is no big deal because the person who cannot win a workers’ compensation claim (without the causation presumption) also could not win a tort claim.” The rejoinder to that argument is that intentional tort actions remain universally available under Covid-19 state immunity laws, have higher damage award and settlement potential, and would be governed by tort causation principles that can be unpredictable in multiple cause contexts—e.g., the claim that Covid-19 was caused both by work-related and non-work-related factors. (Arkansas has apparently adopted the “substantial factor” test in tortious disease claims, Green v. Alpharma, 284 S.W.3d 29 (Ark. 2008), a test holding that a plaintiff may recover against a defendant even where there are other causes of harm, if the defendant’s conduct was a “substantial factor” in producing the harm, notwithstanding the existence of the other factors).

Ultimately, I think this contemplated jiggering of the Arkansas workers’ compensation statute may presage broader legislative realization that dual denial may be heading for constitutional challenge. Thus, the maneuver is to bring claims within workers’ compensation (by not designating Covid-19 an “ordinary disease of life”), so that in theory remedies to employees have not been completely cut off, while providing no causation relief in the form of a presumption for claimants.

Michael C. Duff