What Is A Workplace Injury When Your Home Is Your Workplace?

Episode Notes

Transcript

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Intro: Workers Comp Matters, the podcast dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers’ compensation. Here are your hosts, Jud and Alan Pierce.

Alan Pierce: Hello again from Legal Talk Network. This is attorney Alan Pierce on the Workers Comp Matters podcast. Once again, we have a delightful guest, a longtime friend and colleague of ours, Cathy Surbeck from Surbeck Law in Philadelphia. Cathy is a workers’ comp attorney. She handles and has handled state workers’ compensation claims in the Pennsylvania area and she is focusing her practice primarily on work injuries that are covered under the Longshore and Harbor Workers Act and the Defense Base Act. The reason I have her on as our guest today is that she is the incoming president of the Worker’ Injury Law & Advocacy Group otherwise known as WILG. It is a claimant lawyer only organization. We’ve had other guests and other past presidents of WILG to discuss WILG and really what are the current issues facing the workers’ compensation community as we move out of what I guess we could call the beginning of the post COVID area. Cathy is, as I mentioned, an attorney. She is a graduate of Temple Law School. She’s been practicing workers’ comp and longshore work for couple of decades, at least. Anyway, Cathy, welcome to this edition of Workers Comp Matters.

Cathy Surbeck: Thank you, Alan, for having me as well as Jud. I understand Jud can’t join us today, but I’m looking forward to our conversation.

Alan Pierce: Jud’s actually handling a case in front of a judge. We have a virtual proceeding at 12:30, so he is off doing that. And so it’s just me solo with you today, which is always a pleasure. Cathy, I mentioned WILG. It’s an organization that I’ve been a member of for about 20 or so years. I also had the privilege of serving as president. The role that you will be assuming when you are sworn in in Honolulu, Hawaii, at the beginning of October of 2023, which I know will be a wonderful event for you and your family as you grew up and were educated in our 50th state of Hawaii. So give us just a quick overview of WILG’s mission and your role as president.

Cathy Surbeck: Yes, well, first off, I want to say that I have some big shoes to fill following many great presidents of WILG, especially Alan Pierce here. And just for some educational background, WILG was founded in 1995 by 13 individuals, of whom one was a female, Esther Weissman, for whom we have an award that we named after her. It is, as Alan said, a group of claimants’ attorneys. We’re a national organization of about 1100 attorneys. It grew from 13 founding members to now an organization of over 1100 attorneys. We represent attorneys in all 50 states. In addition to the state workers’ comp practitioners, we also have practitioners in the federal arena. As Alan mentioned, I do longshore work. There is black lung. There is FICA. There’s a lot of different workers’ comp groups out there that are beyond just state workers’ comp. We are dedicated to representing the interests of millions of workers and their families who are affected by work injuries. We provide education, we provide communication. We provide research and information gathering not only to our members, but to other nonprofit entities in the work injury area that are programs out there that help make the workers’ comp programs better for everybody involved.

Alan Pierce: Yeah. As we both know, aside from the various federal and state jurisdictions, we have 50 states. Each state is basically similar, but has meaningful differences. One of the benefits I have found from a national organization of workers’ lawyers who practice in an individual state is that WILG serves, as I would say, an early warning system for changes that one of our past presidents used to refer to as coming to a theater near you. I mean, something may happen, for example, in Texas or Oklahoma, as happened maybe 10 years ago with the opt out movement, and it can spread across the country. So one of the things that WILG does is that we follow changes that occur in one state that may impact others. So you’re coming in as president. What are the issues that you think you will be tackling? The pressing issues that our clients and our colleagues face and also that employers and insurance companies may face as we are now going into 2023, 2024. We are almost a quarter century now into the 21st century. So what are the issues that you are going to be focusing on?

(00:05:07)

Cathy Surbeck: And Alan, we have just survived, I think is the word, I hope for our sake and our children, a once in a lifetime pandemic that we are still recovering from. The pandemic has had many implications across not just our daily life, but our work life. One of the things I see is that the changes in the pandemic, early on in the pandemic, we were closed for a while, shut down from going around anywhere. But there were a segment of us that had to go to work. Healthcare workers, grocery store workers, essential workers. Those workers were exposed to COVID, exposed to other things that those of us who work in the office environment did not have to get exposed to. I see one of the things that we’re facing is changes in the work environment, a hybrid work situation. How does that affect people who are working hybrid? How are they classified as employees and workers now in light of the changes that are coming forth? Not only has our work environment changed, but how are claims being administered? A lot of the claims examiners, I think, are working out of their homes now. How does that affect the processing of claims and moving forward, how are individual states processing these claims? Are they being done remotely? Are they being done in person? Is there a hybrid? And what benefits or drawbacks is that to our workers, our clients as well as the employers?

Alan Pierce: You made a lot of good points there. In fact, you used a term that sort of came into vogue in the middle part of 2020 and that is essential workers. I think one of the things we all realized and perhaps had forgotten all workers are essential no matter what the job that you do. So when you isolated some of these changes that are taking place I know we’ve done a show or two on this in the past, and one of them, when you talk about remote work, is the workers’ comp implications for somebody who works out of their home as opposed to going into an office setting or a building or a traditional workplace. And what happens when there are injuries in the remote workplace? So give us an idea of what some of the cases or some of the fact situations have come up that different jurisdictions are grappling with.

Cathy Surbeck: Well for example, if you’re working from home 100%, then your workplace is your home. So what if you go to the bathroom and you trip and fall? Or if during the course of your day you run down, you throw some laundry in the basement and you trip on the stairs? Is that considered part of the course of scope of your day? Does it arise out of your work? Or is that a deviation for personal comfort? Or alternatively if you have a hybrid situation where you’re in the office for a couple of days a week and you’re home for a couple of days a week, are you now beyond a stationary worker but you’re part of the, for lack of a better term a traveling employee whose expansion of arising in the course of your work has expanded. Does that include your commute now when you’re going to the office? Nowadays with how we’re connected almost 24/7. Right? Whether we like it or not, we’re constantly connected to our clients. We’re constantly connected to the other side. We’re talking to somebody and if on our commute into the office we’re having a conversation with our client about something and we get into our car accident not because that we’re on the phone, but because somebody rear-ended us. Is that covered now?

Alan Pierce: Yeah. Those are fascinating fact questions. I suspect as cases start to come in, these cases will be adjudicated and sometimes with consistent results across all jurisdictions because a lot of our listeners may or may not know there are general sort of precepts or doctrines in workers’ comp. These doctrines were created when the work life was basically your home and your place of work. So that for example, the going and coming rule basically says if you are going or coming from work, you’re not covered, you’re not within the scope of your employment. But when that rule was developed, we didn’t have cell phones in our cars. So if we are, as you mentioned, talking business and get rear-ended, yes, we’re commuting to work or commuting home from work, but we’re still performing work activities. Same thing at home. If you’re in the workplace and you go to the ladies’ room and you slip on some water or whatever, you’re covered generally under the personal comfort doctrine. How does that extend to the home?

(00:10:00)

We won’t know any consistent rules until there is a body of law that creeps up jurisdiction to jurisdiction but these are the things that we have to think about and talk about because these are things that are occurring and have occurred since our work has changed. We’re going to take a quick break, and we’re going to be back and talk about some of the other pressing issues of 2023 into 2024. So we’ll be right back with Cathy Surbeck.

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Alan Pierce: Okay. We are back with Cathy Surbeck. Cathy, aside from the hybrid situation, the work at home situation, what are the other changes that you see coming or have actually started to happen post the COVID era?

Cathy Surbeck: Yeah. For example, in Pennsylvania, we used to attend all hearings in-person, whether they were pre-trials or evidentiary hearings. We used to attend all of our hearings in person. Since COVID, a hybrid has come into place now, and I believe and I don’t do a lot of state workers’ comp now, but I believe that the pre-trial hearings are now handled via Zoom or Microsoft Teams and having in-person hearings for evidentiary records development, some judges are still having everything remotely. I have some concerns about that. I prefer in-person hearings myself. I think you can get a lot more done when you’re in person. I don’t know how it is in other jurisdictions, but when we used to wait around for our hearing, we used to talk to other counsels, we used to be able to address cases and get things done. We don’t have that anymore when we’re not in person.

Alan Pierce: One of the other things I’ve noticed is that the judges or hearing officers, whatever they’re called, they are usually given by the appellate authorities or appellate bodies wide discretion in terms of weighing the evidence, the credibility of witnesses, the credibility of people testifying. The more that is done on a video platform where you are basically looking at pixels and squares on a screen as opposed to the other perhaps unspoken messages by looking at somebody in person that could be to the detriment of our clients. It could be for the benefit of our clients. There’s some clients we may not want the judge to see in person but I think that workers’ comp is such a special area of the law that the financial obligations of employers and insurers and the financial wherewithal of injured workers, I think everybody deserves to be in person where it is feasible. It was feasible before COVID. Now we’ve experienced the convenience and lack of parking and commuting into an agency, but at what expense? So how is WILG handling or looking at this in terms of access to justice?

Cathy Surbeck: I think that we are doing a poll with our members to see what their states are doing, what is effective for them. Some claimants’ attorneys prefer to be remote because I think they find it more efficient. You know when you’re sitting in your office and you don’t have — like you said, Alan, you don’t have to commute, you don’t have to pay for parking, but I have a problem with it. I think that there might be an equal protection argument because in some rural areas you might not have very good internet connection, right? So you might not be able to get on. Some injured workers might not have access to the best technology, so they’re not going to be able to be seen on a camera. If you’re going to have your client come into your office, what’s the difference between that versus just going down wherever your hearing office might be? So I think on the one hand, those states that were able to pivot and move to a remote platform kept the system moving along right during the throes of COVID. But now that we’re out of the throes of it, is this the best practice forward for all of these stakeholders? I don’t know the answer to that.

(00:15:07)

Alan Pierce: Yeah, I don’t think anybody knows the answer to it. We’re all struggling. There are certainly compelling reasons to use technology efficiently. The goal of technology is efficiency and getting things done in a more economical, timely fashion which allows us time to do other things. But at the same time we have to be mindful of what we are giving up for the sake of this type of expediency and economic benefits. So this is an ongoing issue and I know it’s not one where there is an easy answer. Each state, even Massachusetts, we kept going through the pandemic. I give our agency a lot of credit for doing that. We didn’t miss a beat, except maybe for the first three or four weeks of total lockdown. But they were up and running. From when I’ve spoken to colleagues, our WILG colleagues and others around the country, most other states have done the same. Aside from those issues, whether it’s just the changing times or the COVID era, how has this affected medical treatment, access to treatment in the first quarter of the 21st century here in the United States? What do you see as having happened and what’s on the horizon medically for our clients?

Cathy Surbeck: Well, pre-pandemic, I observed a chipping away at Medical Access. That is the one area where I think employers and insurance companies have tried to exert their authority and have more and more control over medical care. In Pennsylvania, for example, the employer insurance companies have control over an injured workers’ care for the first 90 days. It can dictate where you go, they can dictate what kind of care you get. If you don’t follow their instructions, they might not pay for the care. During those first 90 days, depending on the situation, they’ll pay you temporarily and then before the expiration of the 90 days, they’ll cut you off and you have to prove your case. As we know with the pandemic and with the pressures that our health care system endured during the pandemic, I think it’s harder and harder to get to see a doctor. I think some providers have pulled away from treating injured workers because of reimbursement rates or paperwork or whatever it is. I think there’s going to be a change in the future. I also see, again, some of the medical treatment moving into a remote situation where you have telehealth. On the one hand, telehealth gives easier access, so you don’t have to wait weeks or months to get in to see somebody. But on the other hand, how effective is telehealth to treating our injured workers?

Alan Pierce: I’ve also seen, and of course during the pandemic I could understand it, insurers obviously have the right to have independent medical evaluations on a particular case and I’ve seen some of those done remotely. I guess there is a way for a doctor to maybe look at on a screen range of motion and things like that. But without the ability to have passive or active range of motion tests and other diagnostic tests, it is limited. So yes, it’s a two edged sword here. Technology allows us to be seen and be heard, but we can’t be touched and we can’t be really examined and that does pose some problems. As far as insurers or employers having control, I know from having talked to people on that side and people who’ve listened to this show know that although I come from a background of representing insurers, my practice is primarily claimant-oriented. But some employers and some insurers will tell you, “well, we are the payers of these benefits and we want control over the medical care because we see sometimes our injured workers, our injured employees not getting good medical care or they’re going to sort of the mill, the factory docks that just find everybody disabled.” So these are things we were wrestling with before the pandemic and now it’s perhaps getting a little more complicated with these other issues such as medical reimbursement and practice guidelines and treatment guidelines and limits on things like that, that could be a whole couple of shows that we could do well.

Cathy Surbeck: Before we move from that, Alan, I want to just point out that in the federal arena, there is legislation to try to have nurse practitioners and physician assistants qualified as treaters, and that you don’t have to be an MD for that. I think if that is able to be passed, that would be a huge help for the federal system and hopefully a trickle-down effect to the states because physician assistants and nurse practitioners are part of our new world.

Alan Pierce: Not only part of the new world that they probably see 90% of our people 90% of the time.

(00:20:03)

Not quite as often do you actually see the MD doc and then we have evidentiary issues in terms of their ability to give expert test testimony Vis-à-vis a licensed physician, etc. So, yeah, these are all evolving questions and issues. Let’s take another quick break, and then we’ll continue our discussion with Cathy Surbeck. We’ll be right back.

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Alan Pierce: Okay, we are back. One other thing I want to touch upon very briefly. There are two other issues that I know WILG has always been on the forefront. I think it’d be a good idea to just touch on them briefly before we conclude. One is the so called Medicare Set-Aside process, where when you lump sum, settle, or redeem liability on a workers’ comp claim where the medical benefits close, which is typical for a lot of jurisdictions if the injured worker is a Medicare recipient or is going to become one. There is the requirement that the center for Medicaid and Medicare Services, CMS, which is a branch of the Social Security Administration, must address any settlement and give its blessing and set up a set aside amount. I know there’s been a lot of difficulties working around this across the country. What is WILG trying to do to make this process easier for all involved, not just the injured worker, but for the insurers and employers who have to wait for CMS approval all the time money is accruing?

Cathy Surbeck: Well, I know that we are part of a conversation at the legislative level to amend, I think it’s called the MSP bill and streamline it. We’ve also have educated our members because I don’t know about you, Alan, but I certainly am not qualified to administer a Medicare trust fund or anything like that and send in the reporting requirements. So it’s a twostep process. One, getting the approval for the Medicare Set-Aside. How much is it? What is appropriate for our clients? And that is something that I know for myself I’m not qualified to do because I don’t know what’s the projection. So we are educating our members on utilizing various companies that help us do the Medicare projection. You have to understand that typically the carriers will do their projections first and they will want to have the lowest number possible because that’s your exposure. But the lowest number might not be the most appropriate number for our clients because our clients might need more than what that says. So we advise our members to get a second opinion. I mean, we get a second opinion pretty much with everything else in our lives. Why not this? Especially with medical treatment for some routine, and I hate to say routine, but like less onerous injuries, the set aside 10,000 that’s manageable. But for some catastrophic injuries or traumatic brain injuries, those can be hundreds of thousands of dollars that our clients need protection on. So that’s something that we are always reminding our members to be mindful of. And also there are professional administrators out there who can help us guide our clients and make life easier for our clients.

Alan Pierce: Yeah. One thing I will say is that this MSP bill that is pending in the federal government, both in the Senate and in the House, there is interest on both sides of the aisle. I don’t mean the political aisle, Republicans and Democrats, I mean the aisle between injured workers and employers or insurers to get this done. I know WILG is partnering with people from the insurance community as well as the tort lawyers because it won’t be long before your typical auto case or your slip and fall case, the civil cases also will be required to get Medicare Set-Asides upon settlement.

(00:25:09)

And if you think it’s burdensome, expensive, time consuming, and a delayed process, wait till it hits every area of civil liability. So one of the benefits of a national organization such as WILG or some of the defense organizations that represent attorneys and claims professionals, this is something we can all agree upon, that the federal government needs to have some input on how to create a much better system of streamlined approval process and there’s other things as well. There are other issues that we could talk about. Maybe we’ll have you back on at the end of your year and sort of get a look back and an overview. But to those of you who practice in the field of workers’ comp, whether you represent injured workers or employers or insurers, there is value to a national organization for whatever your particular area of interest is. You can learn a lot, you can contribute a lot, and I want to thank WILG and I want to thank Cathy for taking the role of incoming president. It’s a lot of work. It’s rewarding work, and you’ve got a good deep bench, and you’ve had some good folks ahead of you that have paved the way as I have had the benefit of that as well. So any closing words you want to have, Cathy, if anybody needs to contact you about any federal workers’ comp or longshore, what’s the best way to reach you, Cathy Surbeck?

Cathy Surbeck: You can reach me by email at [email protected]. I’m happy to talk to anyone who has any questions. I encourage those of you listening to us who are not WILG members to check us out. As Alan said, there’s a lot of benefits to being part of our national organization. You don’t think that these topics or these questions or these hot button items might affect you, but they actually do. Let’s face it, everyone’s just trying to cut costs all the time, and it’s a constant chip away at things, whether it’s limiting the amount of weeks you can get, limiting your medical. For lawyers, I hate to say it, but I think there’s going to be movement to try to limit fees down the line, because insurance companies are always saying how they want to cut costs. Now, that’s a conversation for another day, because I think that they’re doing very well as it is, otherwise they wouldn’t be in business. Right, Alan?

Alan Pierce: Well, we need a healthy employment and insurance system in which we can operate, because if it is out of balance, we all know what happens when this big system of injured workers, a lot of money involved, a lot of people in between the injury and the payment of money and when things get out of balance, corrections happen. Usually the corrections oftentimes are much worse than the original problem. So the overall goal, the thing that has guided my philosophy, maybe in the last half of my career, is to always remember we need the balance. We don’t want insurance companies to fail. We want them to make a profit, but like anything else, what is a fair return on investment? What is a fair amount of benefits that injured workers should receive? It is something that is always evolving and as long as we keep our eye on the prize and keep our eye on the ball, it’s a system that has worked relatively well for 100 plus years, and it can continue to work, but we have to work at it. So I want to thank you for all you do and for all my colleagues do on either side. The defense attorneys, some of my best friends, and most respected colleagues are people that represent insurers. I can say the same thing of my colleagues who represent injured workers. I think we’re all trying to do the right thing.

Cathy Surbeck: Thank you for having me.

Alan Pierce: So for all of you who regularly listen to Workers Comp Matters. Thank you for returning and listening to us. For those of you who are new to the podcast, please stay tuned. We try to post a show every month. Thank you for listening and go out and make a day that matters. Bye-bye.

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