… More of my report, here, on the September 23, 2016 symposium at Rutgers-Camden Law School ….
As noted in my previous post, the final version of the symposium papers will be published in the Rutgers Law Review. For now, here are five points that I found of particular interest.
- Professor Burton, in a reprise to prior advocacy, insisted that state workers’ compensation programs can still work better with a pro-active agency. See John F. Burton, Jr. & Monroe Berkowitz, Paean to an Active Workers’ Compensation Agency, John Burton’s Workers’ Compensation Monitor, Vol. 2, No. 7 (Sept./Oct. 1989) (available at http://workerscompresources.com/wp-content/uploads/2013/07/WC-Monitor-Vol-2-No-7-Paean.pdf).
- Professor Burton (as he has in the past) questions whether contingent fees for attorneys in workers’ compensation are the best method of compensating lawyers. He stated that he believes that lawyers should indeed be paid, but he suspects that the contingent fee awakens in the lawyerly mind an inappropriate desire to compromise- settle and lump sum cases. Perhaps, he ventured, the most generous fees should be payable to lawyers in cases where his or her representation has facilitated a return to work for the injured worker.
- Professor Williams, of Rutgers Law School, an expert on state constitutional law, encouraged lawyers fighting drastic workers’ compensation reform to use state constitutional resources. Of course, such an approach was employed aggressively by Attorney Bob Burke in Oklahoma, who, armed with the Oklahoma Constitution, achieved the striking down of opt-out. (The state constitution was also employed in Oregon, where the state supreme court applied the Oregon Constitution’s “Open Courts” proviso, which has its genesis in the Magna Carta, to declare that an injured worker’s rights under both the compensation act and in tort could not be abolished.)
- Professor Justin Long, of Wayne State University Law School, encouraged the audience to conceptualize “retrenchment” in workers’ compensation law as another example of a larger attempt of employers (and individuals) to escape the public system. Mandatory arbitration clauses are another example. To this writer, the strategic effort of employers to detach themselves from traditionally acknowledged social responsibilities reflects the general decline in commutarianism about which much has been written.
- Professor Burton does not believe in promoting federal standards anymore. Of course, this was his theme in his Pennsylvania Centennial address in June 2015. See John F. Burton, Jr., Keynote Address for the Centennial Celebration of the Pennsylvania Workers’ Compensation Program, Hershey, PA (June 1, 2015), available at http://workerscompresources.com (last visited October 3, 2016). Burton insisted that the “playing field is very different now” than it was in the 1970’s, when the Commission, which he headed, published its nineteen voluntary recommendations. Federal standards, in the present day, “are not a practical solution.”
If you're like me, you'll be looking for that May 2017 law review edition. I will summarize the articles at length when they're published!