The Pound Civil Justice Institute, in partnership with Northeastern University School of Law and the Rutgers Center for Risk & Responsibility, recently convened a one-day academic symposium, “The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century.” Some of the papers presented (most of them not in final form), can be found at http://poundinstitute.org/content/2016-symposium-papers. I was pleased to attend as a "discussant," as was Professor Mike Duff of this blog project.
The critical presentations (and their presenters) were as follows: (1) Work Injury and Compensation in Context,1900 to 2016, Emily Spieler, Northeastern University School of Law; (2) Workers’ Compensation at a Crossroads: Back to the Future or Back to the Drawing Board?, Alison Morantz, Stanford Law School; (3) Can State Constitutions Block the Workers'-Compensation Race to the Bottom?, Robert F. Williams, Rutgers Law School; and, finally, (4) Outside the Grand Bargain: The Persistence of Tort, Robert L. Rabin, Stanford Law School. These papers will be published in the May 2017 issue of the Rutgers Law Review.
As one can infer from the title of the symposium, the focus was on the slow but unmistakable swing of the pendulum away from workers’ compensation laws solicitous of worker interests and towards business. The most dramatic (nay, nihilistic) manifestation of that swing, of course, is the opt-out movement, which generates proposed laws that permit employers to opt out of the system if they establish private plans of their own design – while conveniently retaining the exclusive remedy.
The first major paper, presented by Professor Spieler, first traces the history of workers’ compensation from its beginnings to 1972. In that year, workers’ compensation largely rebooted (my term) and, in Professor Spieler’s view, was reconceptualized by National Commission leaders as one which depicted adequacy of income replacement as essential to an effective system. Thereafter, most states responded to some degree and liberalized their laws (Pennsylvania is a major example), but since 1980 retraction has, for the most part, been the major feature of legislation in the field.
As a commentator on the panel, I noted that Pennsylvania is a jurisdiction where we have, to date, avoided the harshest aspects of retraction. While duration of disability benefits to all but the most severely impaired became limited in 1996, our injury definition and course of employment doctrine has not been the subject of retraction; Pennsylvania covers occupational diseases generously, and with presumptions; aggravations of pre-existing conditions can be compensated; Frye, not Daubert, guides the admissibility of expert opinions; and the rule of liberal construction endures.
True, agents of change have promoted laws that would further limit employee choice of physician, and regulate physicians in how they treat injured workers, but to date these retractive proposals have not gained a foothold. I did agree that the increasing popularity of lump sum compromise settlements (and increasing lack of oversight of the same) coupled with the ubiquitous demand that workers resign or agree not to reapply, signaled loosening of the idea that the system should focus on worker rehabilitation – another ideal of the National Commission. It seems in the modern day, rightly or wrongly, that most claims have become, via C&R, commodified, and rehabilitation is not even given lip service. Here I can only speak for my state. One of my co-panelists, the distinguished Louisiana lawyer Chuck Davoli, seemed less concerned on this point. Settling and resigning, he noted, gives the worker a chance to put his claim behind him and move one.
Professor Spieler’s analysis (and those of others, particularly Professor Burton), that retractive legislation in many states has been facilitated by the decline of the labor movement, rang true to me. Burton, notably, stated that unions have little voice in state legislatures, and the “AFL-CIO nationally does not have workers’ compensation on its agenda.” “Workers’ compensation,” he insisted, “used to be a much more important item for labor.” As a result of this apparent decline, it seems that in many legislatures, trial lawyers now play a key role in protecting worker interests.
And, of course, when it comes to the litigated case, the claimants’ bar is the injured worker’s only advocate. Retractive reformers know this, and have advanced laws in other states designed to limit lawyer participation. While too much lawyer and judge involvement undoubtedly exists, the unfairness of depriving injured workers of legal counsel is obvious if for only one reason – the employer and carrier will always have insurance and legal experts on their side.
The presenters at the conference were mostly of one mind that retractive reform threatening demise was unsatisfactory. Some presenters, however, were only presenting data or, for example, explaining state constitutional provisos, and I did not detect their opinion on the overriding – sometimes passionate – theme of the conference.
Perhaps the most remarkable presentation was by articulate Rutgers law professor Adam Scales, who suggested dismantling the system, promoting universal insurance, and allowing some level of employee tort actions against their employers. (Watch for Part II of my report!)