In the late 1960’s and early 1970’s, workers’ compensation reformers advocated for a uniform extraterritoriality provision for state workers’ compensation laws. Their goal was to ensure (1) that no worker who sustained an injury would ever be denied a forum in which to prosecute his or her case, and (2) that games-playing would not defeat the effort. In the end, unfortunately, only a few states adopted the law, including Pennsylvania, Delaware, Kentucky, Alabama, and New Mexico. Unfortunately because in Pennsylvania the law has been a success, and it defines the reach of the law with certainty.
Many states have extraterritoriality provisos other than that of the model law but, surprisingly, New York and New Jersey keep their rules in the court precedents.
Extraterritorial jurisdiction, in any event, does indeed have its vagaries. A worker’s frustration with the same has now made a remarkable headline. See Daniel Marans, How A Literal Shock Inspired A Former Marine To Run For Office As A Democratic Socialist: A workplace injury and its aftermath were a political wake-up call for Virginia state delegate-elect Lee Carter, Huffington Post (Nov. 12, 2017), https://www.huffingtonpost.com/entry/lee-carter-delegate-democratic-socialist_us_5a074548e4b05673aa5997fd.
As reported in the Huffington Post, the newly elected Manassas, VA, state delegate, Lee Carter, first became interested in politics after his back injury claim (caused by an electric shock) was dismissed by the Virginia Commission for lack of jurisdiction. Carter, an ex-Marine in his late 20’s, prevailed last week in his run as a Democratic Socialist, unseating a conservative Republican.
Carter, whose residence is in Virginia, was working for his Georgia-based company in Illinois when he sustained his injury. He incurred medical bills and, apparently, three months of disability. For reasons not stated in the article, his employer’s workers’ compensation carrier denied his claim. (Group health insurance apparently paid many of his medical bills).
Carter, we are told, “decided to file a workers’ compensation claim against the company with the state of Virginia…. He reasoned that while Illinois was a resolutely pro-worker state and Georgia was equally pro-business, Virginia was the ‘Goldilocks’ option ― the perfect balance that might make the Bella Rose Group likely to strike a deal with him…. ‘I figured let’s go with the least contentious state,’ Carter said.”
Of course, that is not how any type of legal system works and, indeed, “Carter called at least four Virginia-based lawyers in search of representation but they all refused, citing the complicated question of whether his claim was even in Virginia’s jurisdiction.”
In the end, the Commission dismissed the case for lack of jurisdiction, finding that Carter’s contract was made in Georgia, and that the employer had no place of business in Virginia. (Carter, notably, told the reporter that the four lawyers did not suggest that he prosecute his claim in a different state – which is an unlikely omission; meanwhile, Virginia lawyers have told the reporter that the agency’s ruling is reasonable under the law.)
Carter’s problems became more complicated in the wake of his injury: after he returned to work, his employer was unable to accommodate his part-time schedule and he was ultimately fired – an act which Carter characterizes as retaliation for pursuing, however fecklessly, workers’ compensation.
Indeed, “the first bill Carter plans to introduce in Richmond is a measure to strengthen protections for workers against employer retaliation for filing workers’ compensation claims…. ‘It’s kind of messed up,’” he told the reporter, "'that it was easier to run a two-year election and get 11,000 people to vote for me than it was to figure out the workers’ compensation system ….'”
Huh? The frustrating aspect of this article is that lawyers gave Carter advice that he did not have a cognizable claim in the state. He chose to ignore this counsel, prosecuting his claim on the same theory as did some fairy-tale heroine in choosing her most preferred bowl of porridge.
And, of course, instead of advocating for a strengthened anti-retaliation law, our own hero should now be arguing for Virginia’s adoption of the model extraterritoriality statute.