The Year that Was in Workers Comp

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Transcript

Workers Comp Matters

The Year that Was in Workers Comp

December 23, 2020

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Intro: This is Workers Comp Matters, hosted by Attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert and author, Alan S. Pierce is a leader committed to making a difference when workers’ comp matters.

Alan Pierce: Welcome to Legal Talk Network and worker’ comp matters. My name is Alan Pierce with the law firm of Pierce, Pierce & Napolitano in Salem, Massachusetts and we are very happy to bring you another edition of workers’ comp matters with our guest, Professor Emily Spieler of Northeastern University Law School. Before we introduce Emily, I want to shout out to PInow. To find a local qualified private investigator anywhere in the United States, visit pinow.com to learn more.

You know, when I was growing up in the — maybe early to mid-60s, there was a television show i look forward to every week called “That Was The week That Was” and for end of 2020, I’ve invited Professor Spieler to join with us today to talk about the year that was in workers’ comp. Emily Spieler is a nationally known expert in workers’ compensation labor and employment law. She is the Edwin W. Hadley professor of law at Northeastern University School of Law, where from 2002 to 2012, she was dean of the law school.

Her resume is lengthy. She is one of the most prolific writers, commentators and experts on workers’ comp and related law in occupational safety and health, Social Security, employment law. She’s an elected fellow to the Roscoe Pound Civil Justice Institute, College of workers’ compensation lawyers, National Academy of social insurance and it goes on and on.

So, Emily, let me welcome you and I’m very happy to have you join us today on workers’ comp matters.

Emily Spieler: It’s a pleasure Alan.

Alan Pierce: So, you know, we’re recording this midway through December of 2020. If you could sum up in a word or two or three the past year of workers’ comp, where would we begin?

Emily Spieler: We would begin with the fact that the year was what I would say is a normal year for workers’ compensation for better or worse until the pandemic hit and then followed by a period of what appeared to be panic in workers’ compensation circles, both on the workers’ side who were worried about not getting compensation for COVID-related disease and on the insurance and employers’ side worried about an excessive number of claims and I don’t — I think we’re only just now coming to realize that at least the panic on the side of the insurers was not merited. As a result of the pandemic, I think there ended up being a lot more focus on workers’ compensation than there usually is.

Alan Pierce: Yeah, I would agree. I remember back and you know, it’s funny, time is either compressed or expanded–

Emily Spieler: Yeah.

Alan Pierce: –given our routines have been interrupted so much. So in some ways it seems like just a few weeks ago, but in other ways, it seems like eternity ago, but you’re right, when all of the states really shut down and shut down fairly completely for maybe the end of March and through April, May into June, you’re right, a lot of commentators were predicting that there would be this tremendous cost associated with the compensability of all of these people getting sick and there was concern whether the insurance industry would be able to survive that. On the other end, the insurers had been paying — the employers been paying premiums based upon risks of injury and for a good part of several months, we had very few people actually working and injuring themselves. So on the other end, there was some talk about whether or not insurers should be adjusting their premiums, so. I know a lot of employers reporting every employee who thought they might have COVID to the insurer, but not every one of those blossomed into a claim.

So, there was a great deal of uncertainty, but from my opinion, I’d really like to hear you weigh on the pandemic kind of caused all of us to look at workers’ comp in the broad sense and to determine whether it is the effective and efficient vehicle of compensating economic losses suffered by employees who might get sick during something like a pandemic. So, give us an idea of some of the things in the workers’ comp system that we really hadn’t paid much attention to pre-pandemic as well as the burdens of proof and things like that, that made accessing workers’ comp for all, but the most obvious injured people frontline medical and nursing personnel difficult.

00:05:05

Emily Spieler: So, yes, there were a lot of different questions there. As you know, we have a very spotty safety net for people who get sick, whether they get sick at work or they get sick outside of work and the reason I think people are turning to workers’ compensation in part is that there is inadequate paid sick leave and inadequate first dollar health coverage and so if people really get sick from COVID, they — and they think they got it from work, they’re going to turn to the workers’ compensation system. Workers’ compensation system has never been set up very well for any kind of occupational diseases, even ones that we recognize today as being clearly occupationally-related for people who are exposed to asbestos or silica or coalmine dust and in fact, that’s why we ended up with several federal programs that pay workers’ compensation benefits based on specific diseases like black lung.

And so the — and then on top of that, you get –and there’s a long litany of reasons why workers’ comp doesn’t work very well for this, but to focus in for infectious diseases on the issue of causation, most workers’ compensation systems exclude what they call ordinary diseases of life and if it’s a disease that you can easily get elsewhere, then you’re unlikely to be seen as having a compensable disease. So, part of what happened as a result of that, the combination of the lack of a good safety net and the inability of comp to work very well and for diseases is that quite a few states, either through legislation or through executive order created some kind of presumption of work causation for people who got sick with COVID.

Now, we’re talking about a small percentage of the people who actually test positive, people who are asymptomatic or even people who are out of work for a week and have no lingering symptoms and go back, they’re very unlikely to choose to file for workers’ compensation and certainly, very unlikely to find a lawyer who would want to fight that claim. But there are what we now know as long haulers. There are people who’ve been in ICUs for weeks and for those people, the question is okay, now what happens? And so in a subset of states, there’s now at least most commonly for first responders and healthcare workers, a presumption that says if you have COVID and you do this work, then you’re presumed to have gotten it at work. But the employer is allowed to rebut that presumption in every state except Alaska.

And I’m actually worried about that. You started this podcast with an ad for investigators and as Alan, I think you know, there’s a history of carriers and employers sending people to videotape people who filed workers’ compensation claims to see, you know, what they’ve done at home and can they actually — are they actually as disabled as they claim to be and I’m worried that these claims in part and the presumptions themselves and I don’t know if this is happening, invite this investigation for people who aren’t constantly in touch with people who are sick, invite an investigation and we know that many of the frontline essential workers are working in low-wage jobs. There are clusters of disease at work, but they go home. If they live in urban areas, they travel public transportation, they live in crowded housing, they send their kids out to someone else to take care of.

So, inviting an investigation of people’s personal lives to see whether this presumption can be rebutted might not be worth it for a carrier and a small claim, but in a claim with a long ICU and then a long absence from work and then a considerable permanent disability, it really is an invitation to that in my opinion. So, I worry about that. I think that we are seeing by the way, that in every state, there’s a workers’ comp institute. The workers’ comp research institute is located in Cambridge and they are following the COVID claims. They haven’t published anything yet, but I did see some early data that suggested that in every state that they are following, some claims are being paid. But we don’t really know what’s going to happen to the litigated claims yet.

Alan Pierce: Yeah. Well, the litigated claims at least here in Massachusetts are just starting to mature into the more formal dispute resolution process.

00:10:03

As in most jurisdictions, Massachusetts has kept up with the flow by switching really on a dime to telephonic or video platforms to move our cases through the system and I am now starting to see and discuss with colleagues that some of these arguably questionable COVID claims are reaching the at least preliminary pre-hearing stage.

Emily Spieler: Uh-huh.

Alan Pierce: And you’re right. There were cases that on its face — on their face, how can you deny it? You know, somebody working 18 hours in March and April in a COVID center emergency tents and, you know, just dealing strictly with COVID patients, they get sick along with their co-workers. Those cases for the large part have been accepted. The other thing that I’ve noticed is there’s been, you know, we use the term “cost shifting” a lot. But a lot of — I’ve got two or three clients over the summer and into the fall that were positive for COVID, but they were compensated through the unemployment system and in fact, with the stimulus with the added unemployment benefit, they were without going through any causation or any disability which is antithetical to unemployment, it was more economically feasible to

have that system compensate the wage loss and of course, health insurance for the most part or public health insurance through, you know, Medicaid or some of the, you know, public plans have been taking care of the medicals.

Emily Spieler: Right.

Alan Pierce: Which leads me to the question is for something like a pandemic, something that is a disease that is ubiquitous in society as well as in the workplace where a typical worker might spend a third of his day in the workplace, is workers’ comp the proper remedy for a pandemic that just makes hundreds of thousands or millions of people sick. Or are we finding that it leaves too many people outside of the system because of burden of proof issues and other statutory provisions?

Emily Spieler: Well, I’ve always — I confess been a believer that we should have a much less inadequate safety net across the board and I do feel in an ideal world, we would be continuing people’s wages and continuing their health insurance and then seeing what people and, you know, a small but significant number of people will have long-term disability. And for those people, we need to think about what happens to them, but I would — if I were, you know, just waving a wand, I think that it would be far preferable to not worry about causation. Turn to the issues of safety at works separately and provide for people without creating a litigation nightmare within workers’ compensation systems where every state has a different standard for this and those people who got sick in the meat packing plants in Iowa are going to be treated differently from the people who got sick at the poultry processing plants in the south and we also know that people — my guess is workers’ comp claims are going to rise now because the federal benefits are ending the end of this month and we have a real surge in cases and we have a lot of essential workers who are going to be in clusters of disease. And it makes absolutely no sense if you look at the bigger picture to have this be about work relatedness.

Alan Pierce: Yeah and–

Emily Spieler: Other than the fact that I think actually employers do need some better incentive whether it comes through regulatory intervention or something else, some better incentive to pay more attention to the safety issues at work and that certainly includes COVID, but it isn’t exclusively limited to COVID.

Alan Pierce: You know, I’m glad you used the term “essential workers”. I think one thing that I’m going to be taking away from this whole unpleasant experience is the recognition that almost everybody, if not everybody that’s in the workplace, is in one way or another an essential worker. So, that term which is being bandied about to reference those folks that when the rest of us are hunkered down, they’re going into work. A, because they have to economically and B, because it’s their job and they’re doing it, but they are essential. And it could be anything from, you know, the people that take the trash, pick up our trash to check us out in the grocery store or in the supply chain of moving products.

Emily Spieler: Yeah.

Alan Pierce: At this point, we’re going to take a quick break and when we come back, we will resume our conversation with our guest, Emily Spieler. We’ll be right back.

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00:15:07

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Alan Pierce: Okay, we’re back with our guest, Emily Spieler. Emily, during the break, we’re chatting a little bit about the insurance industry and the early panic and now, the beginning of data collection. So, perhaps you might expand upon some of the concerns that originally arose and how those are morphing into our reality based upon the experience that we’ve gathered since almost a year ago.

Emily Spieler: So, first is a sort of basic principle. If essential frontline workers are going to the front lines, they’re going back to their jobs, then they are facing the same hazards they always have faced for better or worse and the COVID adds a hazard that people were unclear about what it would mean for comp claims. As there was a big drop in the states that shut down in March and April, there was a fairly significant drop in general non-COVID claims and not surprisingly, COVID claims were filed and some of them, particularly for the people who work right there with people who are infected with COVID, some of those have been paid in every state. But I think that actually, the amount that the carriers are paying out total in claims right now looks less than it did before the pandemic, although it’s a little hard to sort that out at this point and I think it’s going to take a little while. But I think that the hysteria around COVID was likely fed by some of the commentators on workers’ compensation who are always looking for the next, you know, exciting issue to talk about on their blogs.

Yes, we have a pandemic, but we actually have had diseases associated with work forever and they certainly have never been concerned about them and when there has been a clear association between a disease and work, compensation systems have paid for that. Now, I’m talking about infectious diseases, things like I worked in a polio ward and I got polio. Those kinds of cases were rare, but they were paid. So then, the question is how many of these COVID cases that have been filed will be paid and how much of a difference does it make to have a rebuttable presumption and how much a difference does it make to have an irrebutable presumption, how much does it matter in California the rebuttable presumption covers all essential industries. Most of them don’t. So, I think that the story about how the comp system deals specifically with the pandemic is not yet told. Hopefully, by the middle of next year, we will have conquered the pandemic through with the use of vaccines and we will have a time limited window to look at to figure out what happened and what we think should have happened and maybe it will give us an opportunity to think about what compensation systems should do in the future for this kind of threat because I think it clearly was inadequately thought out in advance even though scientists have been saying we should worry about pandemics for some time.

Alan Pierce: Right. And we’ve had some close calls with pandemics, Ebola, some of the other enhanced flus that we have dealt with in the last decade. So, yeah, I agree with you that this has kind of forced everybody to look at the efficacy of workers’ comp. And toward that end, I don’t know if you can predict this or not, but do you think we’re likely to see as a result of this state jurisdictions looking at their particular workers’ comp act, especially if they do have a disqualification for infectious or contagious diseases, are you likely to see that there will be some pandemic-related legislation filed and if so, will that strengthen the potential defenses of employers? Do you think it’ll loosen it and make it easier for employees to access the workers’ comp system?

Emily Spieler: Alan, as you know, what goes on in each state stays in that state, in workers’ compensation and we have a lot of conservative controlled legislatures out there that are very unlikely I think to expand access to compensation benefits in this period. I think on the other hand, a state like California which currently has a very broad presumption and also a very aggressive or probably the most aggressive in the country, plan for health and safety around infectious disease.

00:20:09

You know, I think a state like California may go back and revisit it, actually look at the data and try to figure out the effect of the presumption and what would be the best way to deal with this going forward. So, I think it will vary a lot and in Massachusetts which I know outside of Massachusetts, people think this is a very left-wing state, but actually it isn’t. And in workers’ compensation definitely is not and there was no success in getting any presumption legislation through the legislature even for — even narrow presumptions for first responders and the governor’s or emergency orders have had nothing to do with workers’ compensation. So, will in the future, Massachusetts take a look at this? As you know, the claimants’ lawyers are always worried about opening up the statute because it’s now almost 30 years, but there was legislation that got passed that really restricted claimants’ legitimate rights I think to get to certain kinds of benefits and the employers don’t want to expand liability for infectious diseases, but you know, there could be some regulation put out by the agency that talks about – or there will be case law that says here’s when we think it meets the again, somewhat weird definitions in Massachusetts for a compensable disease and my guess is that in many states, what

will happen is that it will be litigation within the comp system and then, you know, a smattering of appellate cases that will answer the question about how we’ll deal with this in the future. I’m not optimistic about a rational thought through process in every state.

Alan Pierce: Yeah and just to give our listeners an idea of the statutory provisions that are common or not uncommon perhaps, but Massachusetts provides that infectious or contagious diseases are not covered unless the risk of contracting that disease is inherent in the nature of the injured worker’s employment. And you know, we always looked at that when we had to look at it and frankly, a lot of us didn’t even know that language was in there. But it basically came into play with medical workers who might have been exposed to a needlestick or hepatitis or things and I think it was obviously geared towards people who worked in the medical field. So, what we’re starting to see is whether or not the risk of contracting something like COVID if you’re a cashier at Walmart, whether that is now a risk inherent in that employment and I think we’re going to start to see in those cases a definition made by fact finders or judges hearing officers–

Emily Spieler: Yeah.

Alan Pierce: —and then looked upon an appeal as to whether or not the legislative intent of that was to expand inherent employment to in effect anybody that’s exposed to the public. So, that’s both a public policy, a political decision that we’ll probably be wrestling with as this case law develops. I guess maybe to close, let’s talk about one of the unintended consequences of this whole COVID experience and that has been before COVID, a lot more of our workforce were working from home and as a result of the pandemic, for a while, probably you know, 75 or 80% of us been working from home and continue to work remotely. That poses a whole other series of questions of compensability injuries and how you define it. So, how do you see that playing out as we move forward and as we do return to work, the actual return to work may simply be a continuation of working remotely and how might that impact our practice and the system in general?

Emily Spieler: Well, I for one am tired of looking at my home studies. So, first of all, 70 or 80% of workers actually are not working from home. 70% of workers are front liners.

Alan Pierce: Okay. That’s a good — that’s a great statistic to hear.

Emily Spieler: And so, it’s those of us who are relatively privileged who are working from home and my guess is that most of us in that category already were working in low-hazard jobs.

Alan Pierce: Correct.

Emily Spieler: So, you know, will workers’ comp cover an injury if I tripped on my way to the bathroom when I’m on the clock at home? Who knows, all right?

Alan Pierce: Every case uh depends on their facts–

Emily Spieler: Right, right.

Alan Pierce: –and they can go either way as we know.

Emily Spieler: Right, right, right. You know, the argument would be well, that’s my work site and I’m on the clock and there was no negligence, you know, nobody put something in front of me that I tripped over and anyway, negligence shouldn’t matter. And so, I tripped and as, you know, I’ve had a whole series of injuries. So, I

could totally, you know, okay, I hurt myself badly, sliding on a floor in a former workplace and it ended up being paid through workers’ comp.

00:25:07

Well, if that happened at home because I had to work from home, why wouldn’t it be covered? This will be litigated I am certain. There previously was a political fight at OSHA about trying to cover remote workers and politically, that became untenable for a regulatory agency to reach into people’s homes, to say something about the conditions in their home. But on the other hand, you know, maybe employers should have some incentive to purchase ergonomic desks and chairs for people who are working at home and who don’t have the — I’ll walk around the hall now and say hello to someone in the office kind of thing or, you know, maybe there needs to be some intervention about how people are working if they’re going to stay remote and I don’t know how it comes, I don’t know that it comes through the workers’ comp system, I don’t know that it comes through a regulatory agency, but maybe if we get back to a place where there’s low unemployment, employers will have an incentive to provide healthier workplaces at home for their remote workers. I don’t know.

Alan Pierce: Okay. What I’d like to do is close on a very broad topic that we will be revisiting as the months and years go by, and that is coincidental to the light at the end of the tunnel, that proverbial light at the end of the tunnel with the vaccine. We also just recently elected a new president, a Democrat, after four years of a Republican and Trump Republican administration. So, in the federal level, I guess I can safely say that the last four years have not been particularly labor-friendly, although I don’t think we’ve seen any major legislative or executive initiatives that on a daily – day-to-day basis hurt labor, although some people may —

Emily Spieler: Oh, I think that’s not right.

Alan Pierce: All right. Well, maybe things that we don’t realize that have been done at OSHA and in terms of collective bargaining and labor issues, but in terms of workers’ comp, we haven’t seen anything, at least I haven’t on a national level, that is particularly odious on a day-to-day basis. What do you — what do you see coming in with a democratic Department of Labor and a democratic presidential executive administration?

Emily Spieler: So, in fact there has been a lot of regulatory and interpretive activity during this administration that has changed the trajectory of what was happening prior to this administration and trajectories that weren’t only in the Obama era, although perhaps accelerated in the Obama era. So my guess is, when we think about joint employers or we think about various rules governing wage and hour issues or governing the right of workers to organize into unions and a whole raft of other things that those are going to be much higher on people’s agenda as they move back into the executive branch then workers’ comp. It was only toward the end of the eight years of the Obama administration that the Department of Labor started to take a real interest and note the concerns that had arisen around the adequacy of workers’ compensation and this is aside from compensation for infectious diseases, but a lot of different trends which had made it much more difficult in many states for workers to access necessary benefits. And so there began to be a conversation and a hope I think that had Clinton won the next last election, that there would be a continued conversation about whether or not there should be some kind of federal intervention to create a floor for workers’ compensation much as unemployment benefits are a state federal partnership.

Right now, workers’ comp stands alone as the only major social insurance system that has no federal intervention and very explicitly so, federal statutes say that we will not mess with comp. And my guess is that comp will not be at the top of anyone’s agenda coming in. On the other hand, I think there’s going to be a — I don’t see how there could be not a national conversation about what to do with people who get sick from COVID and whether that’s linked — or any pandemic and whether that’s linked to workers’ comp or not. I would be inclined to think it might not be and I don’t know if you know this, but David Michaels, who was the assistant secretary for OSHA for the entire Obama administration is on the COVID Advisory Committee.

00:30:00

And when he was at the Department of Energy in the 1990s, he was the one who really masterminded the Energy Employees Occupational — I can’t remember the whole thing. It’s called the EEOICPA(ph), but it gives compensation to workers from the nuclear weapons — civilian workers from the nuclear weapons industry and ultimately, it was expanded and turned over to the Department of Labor because the state workers’ compensation systems were so inadequate. And so, he has a background in thinking about what kind of federal program could be created to support people from disease and I have talked to him about it, but it wouldn’t surprise me going forward if that isn’t something that’s discussed at the national level. But I don’t see state comp systems getting fixed in the same way that, you know, federal black lung legislation in 1969 didn’t fix the ability of states to pay benefits for black lung and the variability in the Appalachian states for people — for coal miners who had bad lung disease. The variability in their compensation systems actually just persisted.

Alan Pierce: Might we see something akin with the Victim Compensation Fund that was set up after 9-11, although we had a much lower number fortunately of victims from 9-11, but you know, could that be an alternative way of governmental intervention, you know, to close that loophole?

Emily Spieler: Maybe, but I think that was a one-time event and this may not be, so I think that — I actually think EEOICPA may be a better model to look at than the 9-11 victims fund. But you know, I don’t know, I think as I’ve said earlier, I really feel that we need a better social safety net and if we had really guaranteed health insurance and really guaranteed paid sick leave and some kind of long-term disability for people who are disabled, this would be much less of an issue.

Alan Pierce: And it all comes down to politics at the end.

Emily Spieler: Oh indeed.

Alan Pierce: It does. Well Emily, I want to thank you so much for sharing your insight and some time with our listeners and with me. I’ve learned a lot as I always do when we speak. So, I’d like to again formally thank you for joining us and for those of you listening, please tune in to our next show. Go out and make it a day that matters. Bye-bye.

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Outro: Thanks for listening to workers’ comp matters today on the Legal Talk Network, hosted by Attorney Alan S. Pierce. When we try to make a difference in workers’ comp legal cases, for people injured at work, be sure to listen to other workers’ comp matters shows on the Legal Talk Network, your only choice for legal talk.

The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, it’s officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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