By David B. Torrey, Workers’ Compensation Judge Pennsylvania Department of Labor and Industry
EMERGING ISSUES ANALYSIS:
CHALLENGES FOR FIRST RESPONDERS
by Thomas A. Robinson
LexisNexis. 2019. 208 pp.
LexisNexis has, for the seventh year in a row, published its annual book, the Workers’ Compensation Emerging Issues Analysis. The text collects essays published throughout the year by Tom Robinson, the editor of the Larson treatise, and his colleagues. The book leads this year with eighteen essays and is supplemented by a state-by-state “trends and case survey” section. A major essay by Robinson is a comprehensive sketch of how the AMA Guides operate (or do not) among the 50 states. A 50-state chart featuring jurisdiction, edition used, authorizing statute, and commentary appear after the introductory discussion.
The book also notes that both Kentucky and New York have now adopted drug formularies. To date, of course, Pennsylvania has resisted this trend of workers’ compensation reform. One wonders, however, whether the resistance can possibly endure.
The state survey portion, authored by contributors from the National Workers’ Compensation Defense Network (NWCDN), makes up the bulk of the book this year. Most of these state summaries are neutral in tone, but a few are opinionated.
The Emerging Issues Analysis is getting unmistakably slimmer over the years. The 2014 edition was 392 pages, but over the last five years it has shrunk steadily, so that it now has only 208 pages.
Still, much is to be learned from this one-of-a-kind annual. It is especially valuable for teachers of workers’ compensation law. A reading cover-to-cover constitutes total immersion in all of the issues we review with our students. Furthermore, many of the cases selected in the state analyses are welcome, thought-provoking, brain teasers.
II. Pennsylvania References
The Pennsylvania section is fairly brief, featuring a report on Act 111 by Philadelphia lawyer Kevin Connors, and brief summaries of what the authors believe to be the interesting cases from our state. Oddly, only three from late 2018 to late 2019 are featured.
The case of true import is the leading Hartford Insurance Group v. Kamara, 197 A.3d 229 (Pa. 2018). There, the Supreme Court “reiterated its prior holding that a workers’ compensation claim may not maintain a third-party civil action against an alleged tortfeasor unless the injured employee has either assigned her cause of action to the carrier or voluntarily joined the litigation as a party plaintiff.” Thus, “where the carrier filed the lawsuit on behalf of the injured employee and sought not only to recover its workers’ compensation outlay, but any other damages to which the employee might have been entitled, it was not error for the trial court to dismiss the case.” Notably, this case affirmed the law and practice of nearly a century, but came under withering criticism from national subrogation expert Gary Wickert. See https://www.mwl-law.com/pennsylvania-supreme-court-destroys-compensation-carriers-ability-to-initiate-filing-of-third-party-action/.
III. Themes of the 2019 Annual
A. Post-Traumatic Stress Disorder in First Responders
The Emerging Issues Analysis leads, appropriately, with an essay by Robinson reviewing the trend of legislatures amending their laws to make it easier for first responders (police officers, firefighters, EMTs, and on occasion certain others), to secure workers’ compensation for post-traumatic stress disorder (PTSD). Facilitating recovery, of course, is particularly needed in jurisdictions where mental stress causing mental disability is completely barred. Robinson identifies, in particular, the 2018 and 2019 enactments in Washington, Connecticut, Idaho, New Hampshire, New Mexico, and Oregon. Robinson points out that most versions of this trending PTSD legislation features a requirement that the responder must be diagnosed with PTSD by a physician or psychologist in order for the first responder to qualify for benefits. Thus, less severe mental health diagnoses may be excluded. In any event, once the claimant receives such a diagnosis, the worker enjoys, in most statutes and proposed legislation, a rebuttable presumption of causation.
Both Robinson and Cleveland attorney Donald Lampert (in the Ohio section) question the disparate treatment that is created by these statutes and proposals. Robinson ponders:
[O]ne might imagine that in Florida, Connecticut, Kentucky, Washington, Idaho, and any other state that limits PTSD to so-called “first responders,” it is the long-haul truck driver who is actually the first on the scene at many serious auto accidents. It is a teacher who was first on hand [at the Sandy Hook massacre] to hold the hand of a dying child shot by a crazed assailant. It was a bartender or other wait staff employee [who] was the first to comfort a wounded customer or co-employee at Pulse, the Orlando nightclub.
Lampert, noting that, in his state, a PTSD bill was submitted but never enacted, posits, “Police and fire unions were obviously disappointed. Absent from the debate[, however], were the legal and constitutional issues that workers’ compensation practitioners would recognize. What about non-public safety workers? An over-the-road truck driver and/or Good Samaritan can just as easily come upon a horrible scene causing PTSD.”
Robinson, for his part, also raises whether it is “constitutionally permissible for a state to favor one subset of employees – e.g., so-called first responders – over all other employees in the state?”
B. Third-Party Settlement Without Carrier Clearance
At least two states maintain the rule that an injured worker’s settling with a third party, without the workers’ compensation carrier’s permission, works a complete forfeiture of his or her workers’ compensation claim. In Pennsylvania, we have no such rule. In any event, in an Alaska case, a taxi driver sustained work-related injuries in a vehicular accident and thereafter settled, for the policy limits, his tort action against the other driver’s estate. He did so without obtaining written approval from the employer. There, “it was appropriate for the Workers’ Compensation Board to dismiss the driver’s workers’ compensation claim….” The forfeiture, notably, is worked by a specific provision of the Alaska Act. The court was, meanwhile, unpersuaded that the employer’s lack of prejudice made any difference. Atkins v. Inlet Transp. and Taxi Service, 426 P.3d 1124 (Alaska 2018).
C. WCJ Power to Grant Summary Judgment
In several states the ALJ has the power to grant summary judgment. Indeed, at least three cases are featured in the book where WCJs rule on summary judgment motions. These are cases from Louisiana, Nebraska, and Rhode Island. The Nebraska agency, notably, recently amended its summary judgment rules to ensure ample time for all parties to produce evidence and arguments. In Pennsylvania, summary judgment is foreign to our practice and sensibilities. Still, the latest changes to the Pennsylvania WCJ Rules definitely accommodate summary disposition of cases. That rule is found at 34 Pa. Code § 131.53b. It is subsection (b) that potentially allows grant of summary judgment:
Bifurcation and motions for disposition of a petition
(a) The judge may, upon request or upon the judge’s own motion, consider bifurcation of issues to promote expeditious resolution of cases.
(b) A motion which may result in disposition of a petition may be filed at any time. A response shall be made within a time specified by the judge. The judge will issue an order granting or denying the motion, or will provide reasons why the motion will not be ruled upon, within 30 days of when the response is due. If the motion will not be ruled upon, the judge will articulate in writing or on the record the reasons for not ruling on the motion. Pendency of the motion will not operate as a stay.
D. Set Aside of Compromise Settlements
Third, workers on occasion do seek to set aside their approved compromise settlements. The Lexis annual features cases on this topic from Michigan, Colorado, and Virginia. The Colorado case is of particular interest. There, the parties entered into a settlement which included funding of a Medicare Set Aside (MSA). Four years later, CMS requested additional funding for the MSA. At that point:
claimant petitioned to reopen his settlement due to [employer’s] failure to include the costs in the settlement. Claimant alleged [that] this amounted to fraud on the part of the respondent, or a mutual mistake of the parties. The [ALJ] determined that claimant had full knowledge of the agreement and was represented by counsel.
The ALJ further rejected the proposition that mutual mistake existed, as “both parties were fully aware of the contents of the settlement agreement.” Accordingly, the ALJ denied the motion to set aside compromise settlement, and the appellate court affirmed. Matus Industrial Claim Appeals Office, 2019 WL 398848 (Colo. Ct. App., filed Jan. 31, 2019).
E. Human Trafficking and Workers’ Compensation
Contributor Karen Yotis authored the essay, “Human Trafficking and Implications for Workers’ Compensation.” Ms. Yotis comments on this appalling phenomenon and explains that while the overall majority are victims of sexual exploitation, 22% are, in fact, victims of labor exploitation. Most such individuals are women and children, and “are among the most vulnerable among us: The physically and intellectually disabled, addicts, foreigners with no language skills, and sexually transgendered youths.” As to the labor exploitation:
The trafficked also perform menial tasks in low-skilled categories. As [one expert] explained, “they clean and cook for us, they grow and harvest our food, they do our hair and nails, they care for our children and elderly, and staff residential and nursing home facilities.” The trafficked are found at truck stops and in residential brothels and are also found in manufacturing facilities that don’t bother with safety protection.
Healthcare workers often encounter individuals who are victim of human trafficking. One 2017 study reported that “88% of trafficking victims came into contact with a healthcare provider at some point during their slavery, but none were identified or offered help to get out of bondage during the encounter.” Another expert identified signs to recognize in labor trafficking cases, particularly for healthcare providers. Among these are “horrific injuries which suggest a patient worked on machinery with guards removed.”
Of course, one problem with reporting is concern on the part of the victims themselves with regard to “criminal proceedings against their traffickers, fear of immigration and asylum procedure, the stigma associated with sex work, returning to families that are not aware of their activities while away, lack of basic life skills, and the inability to find a place to live that they believe is safe from their traffickers.”
IV. Learning from and Comparing Rules of Other States
A. Colorado: MMI as a Matter for Expert Determination
A Colorado case points out the rule – surely that of Pennsylvania as well – that maximum medical improvement (MMI) must be proven by expert medical evidence. The determination of MMI is not, in contrast, for the layperson. Thus, an ALJ in the case was held to have committed error in concluding that the claimant was at MMI when both physicians testifying in the case stated that claimant had not yet reached that point. See Burren v. Industrial Claim Appeals Office, 2019 WL 1087035 (Colo. Ct. App. 2019).
B. Course of Employment and the Incident versus Abandonment Dichotomy
The worker injured on the premises, working at the lathe, punched in, is the textbook case of a worker in the course of employment. It is the “gray area” cases which generate insurance adjuster phone calls to counsel and cases litigated before judges. Many of these cases, in Pennsylvania and elsewhere, can be analyzed by asking whether the worker’s activity at the point of injury was caused by some activity “incident” to the employment or, in contrast, reflective of an “abandonment” of the employment. The book features at least four cases which are in this category. Two are of special interest:
1. Connecticut. In a June 2019 Connecticut case, a worker on a business trip (and thus presumptively covered), sustained an injury after becoming intoxicated and leaving a second bar he had visited during an evening of his trip. “After leaving the bar around midnight,” we learn, “the claimant was assaulted and sustained serious injury. The claimant alleged that notwithstanding a deviation[,] that at the time of the assault he was back en route to his car and hotel and that his injury should be compensable. The court disagreed and affirmed the dismissal on the basis that he made a [fatal] deviation from his business trip activities.” See Rouser v. Pitney Bowes, 211 A.3d 124 (Conn. Ct. App. 2019).
2. District of Columbia. On the other hand, a 2019 District of Columbia case ruled that injuries sustained by a transit authority manager when she tripped and fell on a transit authority escalator, near an employee-only breakroom, during a two-hour unpaid break between her two scheduled shifts, did arise out of the employment. The court stressed that “with the manager working two shifts, and desiring to eat her lunch between those shifts, it was reasonable for her to be at the workplace at the time of her injury.” See Gaines v. D.C. Department of Employment Services, 210 A.3d 767 (D.C. Ct. App. 2019).
C. Rules of Evidence
1. Missouri. Pennsylvania is a state which once had many hearing loss cases. That phenomenon gave rise to many rules, one of which is that an audiologist cannot testify as an expert. Lynch v. WCAB (Teledyne Vasco), 680 A.2d 847 (Pa. 1996) (following Pare v. WCAB (Fred S. James & Co., Inc. of Pennsylvania), 509 A.2d 1361 (Pa. 1986)). In a Missouri case, however, the court decided to the contrary. There, the workers’ compensation authorities have broad discretion in considering and receiving expert medical evidence. Thus, “it was empowered to accept the opinion of an audiologist (who had a Ph.D. in Hearing Science) as to the nature and extent of a worker’s disability from tinnitus instead of the expert’s opinion offered by a medical doctor who specialized in otolaryngology and in spite of the fact that the audiologist stated his opinion essentially upon the subjective description offered by the worker. The court stressed that a medical expert need not be a physician.” See Hogenmiller v. Mississippi Lime Co., 210 S.W.3d 767 (Mo. Ct. App. 2019).
2. New York. An amendment to the New York Act raises the same issue of who can testify. Under the New York system, effective January 1, 2020, providers “authorized to treat workers’ compensation claims [are, in an expansion] … nurse practitioners, physician assistants, occupational therapists, physical therapists, acupuncturists, and licensed social workers.” Under the prior practice, those with the ability to treat were chiropractors, podiatrists and psychologists.
Still, notably, under the revised law, “reports of physical and occupational therapists, acupuncturists and physician assistants cannot be used as evidence of causal relationship or disability. The nurse practitioners [on the other hand] seem to have been given nearly the same rights as physicians as they will be allowed to issue opinions on causal relationship, disability and degree thereof.”
D. Indemnity Clauses
Under the Pennsylvania Act, the third party sued by an injured worker cannot join the employer. This is so even if the employer is alleged to have been negligent. The law was established in the landmark 1983 case, Heckendorn v. Consolidated Rail Corp., 465 A.2d 609 (Pa. 1983). An exception is that joinder is allowed in the presence of a preinjury indemnity contract. Section 303(b) of the Workers’ Compensation Act, 77 P.S. § 481(b). Of course, in our state the exclusive remedy is enforced with an iron fist. Thus, doctrine further holds that such indemnity clauses must be explicit before the employer is held to have waived its immunity. Bester v. Essex Crane Rental Corp., 619 A.2d 304 (Pa. Super. 1993).
Delaware has a special rule in this area that (I believe) we do not maintain in Pennsylvania. There, an indemnification clause can only be used against a negligent employer. In a 2019 case, an employer, Pacific Trellis Fruit (PTF), had agreed to indemnity its landlord, Diamond State, from any claim arising out of the lease arrangement. Unfortunately, an employee, Verbitski, was injured in the course of his employment and sued Diamond State. The landlord invoked the indemnification agreement.
The Delaware court, however, allowed PTF to escape the clause. “Noting that the landlord, and not the employer, was responsible for maintaining the nearby parking lot where the employee was injured, the court stressed that under prior court rulings, public policy dictated that the indemnity provisions could not be used to push responsibility from the landlord to the tenant/employer where the latter had not been negligent.”
The court further declared, “public policy underlying the Workers’ Compensation Exclusivity Doctrine prevents Landlord from requiring indemnity from Employer for Landlord’s own negligence. An employer who provides workers’ compensation benefits and is not negligent cannot be required to indemnify a negligent party even when the employer has expressly agreed to indemnify…. Rather, only when the employer itself is negligent will contractual indemnity defeat the Workers’ Compensation Exclusivity Doctrine…..” See Verbitski v. Diamond State Port Corp., 2019 WL 1501111 (Del. 2019).