50 Years In Workers’ Comp: Alan Pierce’s Observations and Reflections

Episode Notes

Transcript

Announcer:

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.

Judson Pierce:

Welcome everyone to another edition of Workers Comp Matters. My name is Jud Pierce and I am in Lovely Salem, Massachusetts with my co-host, Alan. Pierce. Say hello, Alan.

Alan Pierce:

Hey, Jud. How are you? Nice to be with you.

Judson Pierce:

I’m doing fine. This is a special program, everyone, because we have Alan as our guest. We have an exciting topic to present. This topic pertains to Alan’s 50 years in the legal arena, fighting for injured workers for most of that time. So Alan, this is a special anniversary week for you. We thought this would be a great topic to present to our listeners what you have seen, observed, and can reflect upon during your time practicing workers’ compensation law. Why this topic?

Alan Pierce:

Jud, as you know, both being my son and being my law partner for now, 20 plus years or so, we are very invested in the field of workers’ compensation. And to me, and I think to you and certainly to those that we practice, workers’ comp is a special and distinct area of the law. It’s unlike pretty much any other area of the law that I can think of, and I really find it to be fascinating. And the title of this podcast that we both suggested was observations and Reflections on 50 years of practicing workers’ compensation laws. As human beings, we tend to mark milestones in our personal or professional lives in terms of the calendar. And certainly 50 years of doing anything is a long time. And I have found that as I’ve been closing in on that milestone, if you call it that, it has given me pause to reflect not only on how quickly the time has gone, how much more is lying ahead of me and you and those of us who are invested in this area, and how many changes that have taken place incrementally over the last 50 years have influenced how things have changed and directions that we’ve gone, experiences that we should be learning from that hopefully will guide us both as attorneys or anybody involved in the field of workers’ comp going forward because the next 10 years, 25 years, 50 years, it’s going to be very hard to predict what life will be like in the field of compensating people who are injured through no fault of their own in the workplace, and how they can access quickly, fairly, and equitably their benefits in order to maintain a lifestyle, get adequate and prompt medical treatment and recover, as well as the obligations and impact of work injuries that may be had on their families and their employers and the interest that employers and insurance companies have in this system.

So we have a very multifaceted system. People use the term all the time of stakeholders. There are many stakeholders in workers’ comp, people that have as their profession an interest in some aspect of this area of the law. And it is much broader now than it was 50 years ago or a hundred years ago. So that’s why I thought that personally reflecting on my life up to this point and what lies ahead could be both interesting to our listeners, but more than not, I think it’ll be interesting to me to articulate myself some of these thoughts and feelings and convey them to the audience. Thank you. How and why did you get into this field of law? Well, the smart thing to say would be by accident, but when I say that, I can say there’s some truth to that. I had absolutely no idea what I wanted to do.

When I was in college, I had some family members that were lawyers, a family member too, that were in the medical field or surgeons. I ruled that out immediately after freshman biology when they gave me the frog and the dissecting tool. I knew that wasn’t my career path and I was sort of always interested in the law, but I never thought I’d become a lawyer. So somewhere in my junior senior year of college, I was involved in a motor vehicle accident, and as a result, my car was totaled. I had some minor injuries, I had the occasion to seek a lawyer. The lawyer recovered some modest benefits for me for the loss that I suffered. And as I was sitting down with the lawyer to sign a release and settle the case, I explained how this happened without going to court. And he said, well, I dealt with a claims adjuster and he started telling me about claims adjusters and what their role were in auto accidents or work accidents.

And by happenstance, a month or two later, I was in the career office at my college, university of Massachusetts looking for job interview prospects, not knowing what I wanted to do. And I saw an ad for Liberty Mutual for a outside claims adjuster to handle motor vehicle accident and workers’ compensation claims. Soon as I saw the term claims adjuster, I flashed back to my conversation with the attorney. I wrote away for an interview. I subsequently had an interview and was hired. And within two weeks of my graduation from the University of Massachusetts, I started my career with Liberty Mutual first as an auto adjuster, and a year or two later I became a workers’ comp adjuster. And that was from 1969 to 70 or 71. And while I was doing that, I then kind of focused on a legal career and there was an opportunity to go to law school at night and work during the day.

And I took advantage of that. I got into Suffolk University of Law School, evening Division, and spent four years going to law school three nights a week from six to 9:00 PM and working five days a week for Liberty Mutual with a company Kyra Statement Pad and Polaroid camera, visiting work sites, interviewing injured workers, and developing I think a skillset that today has worked very well for me. So yes, it was an accident. There was never a grand design, but most things in life, serendipitous events and happenstance, sometimes direct your career path and your personal path. And that’s exactly what happened to me.

Judson Pierce:

I mean, literally you say it happened by accident and that you were in an auto accident that made you sort of consider this path. What did you major in at UMass?

Alan Pierce:

I was a government major, which they now call political science. So I’ve always sort of had an interest, what I would call the soft sciences of political science history. Never been a big math guy, science guy, certainly not a biology guy. Couldn’t see myself in a career such as that. So it’s something I didn’t learn a trade, but I think I learned a skillset of critical reading, critical analysis, and thinking in law school helped supplement what I learned at University of Massachusetts, which in retrospect, I could have learned a lot more. But like I say, college was also for having fun and I certainly did that as well.

Judson Pierce:

How did you find the LSATs? Were they difficult to take? No. Can you remember back at the questions being

Alan Pierce:

So at that point, I think I was a little more focused. I would say I was kind of a b plus student all through high school and college. My SATs were slightly above average, certainly nothing that would get me into UMass today, but I think I was a little more focused by the time I took the LSATs and I prepared for them. I think I was a little more mature at that point. I was already a year and a half out of college when I took them, and I did really very well on a standardized test. I had never done very well on a standardized test before. So I think that gave me a little encouragement personally that I could A, handle law school and B, be successful assuming I graduated and passed theBar, both of which fortunately happened.

Judson Pierce:

Did you find that it was difficult doing both working and going to school and trying to find time to eat and raise a young kid who was me?

Alan Pierce:

I certainly found time to eat. I certainly certainly found time to get married. And then you came along, I think midway through my law school career. No, to the extent it was difficult. It was fun, difficult, if you can imagine that. And I was fortunate Liberty Mutual gave me the ability to do that. I was an on the road adjuster, which means I was not tied to my office or desk. I had a company car and I was told to be on the road all day and come into the office as needed to catch up on dictation and mail. But I had the flexibility of being able to have some downtime during the day, spend my lunch hour at an uncle’s law office doing some coursework, and then I could get into Suffolk University usually by five o’clock for my six o’clock classes, meet with a couple of other classmates, have dinner and talk about the cases. And the four years I thought were a grind, but wouldn’t have changed a bit. I had the youth and the energy to do it, and there were other claims people in my class. I mean, this was a career path for people that got into being a lawyer for insurance companies or being a comp lawyer by starting out in claims. So it’s an excellent training ground for anybody who wants to get into the field.

Judson Pierce:

But would Liberty help any part of the tuition because it would maybe help them down the long run if you’d stayed with Liberty?

Alan Pierce:

As a matter of fact, that was a little controversial because Liberty realized that once we got our law degree, they’d be losing us as a claims adjuster and why invest in us to leave and take the trade secrets with us? But I think Liberty was a little forward thinking. They thought if they had an educated claims adjusting force, even if they left, they would benefit. I think with me and my colleagues that were with Liberty, I think they benefit. For me, I was particularly lucky, I wasn’t sure I wanted to practice in workers’ comp law. When I got my bar admission, I couldn’t find a job outside of the field, and Liberty hired me as a lawyer into their legal counsel, house counsel’s office. So I just moved over from claims to legal and I started handling workers’ comp cases at the industrial board. So for me, it was just sort of a natural fit, and I figured I would do that until something better came along.

And you know what? 50 years later, nothing better has come along. It is the perfect area of the law for my particular skillset and my intellectual set. Not that you don’t need to be a rocket scientist, do workers’ comp, but you need to know a little about a lot of things and you’re constantly challenged. So for me, it was perfect. I think I gave back to Liberty what they gave to me, and then I spent another 10 years working for a private law firm that handled insurance companies, and then I decided I would rather represent injured workers and their families. And I sort of left that behind 12 years later, and I’ve been doing that ever since and still look back at my years with Liberty. I can’t say enough about what Liberty Mutual gave to me and what other insurance companies gave to their claims, people who had a similar career path. And I will say, I don’t want to denigrate the process, but workers’ comp claims handling has changed in 50 years. There are no more road adjusters. Workers’ comp is much more centralized. We don’t have local offices. It’s hard to get claims reps on the phone. They are oftentimes overworked and overloaded with cases. I could go on and on, but those I deal with do a professional job. But it’s a much different world of handling claims than it was when I was doing it.

Judson Pierce:

And why don’t we take this opportunity to take our first break and when we come back, we’ll talk about the changes you’ve seen in the field of workers’ comp since you started your career. We’ll be right back with Alan Pierce and we’re back. We left off with you talking about how the role of claims adjuster has changed markedly since you were in that position, and some of the reasons behind that. What other changes have you seen more broadly in

Alan Pierce:

The field of workers’ comp since you started your career, Alan? Wow, that’s a question that I could probably answer for the next half hour to an hour. So let me see if I can cut it down to its bare essence. There have been a lot of changes that have been gradual over the 50 years, just as there had been a lot of changes in the first 50 years. Workers’ comp right now started in 1911, so we are 112 hundred and 13 years into it. The first 50 or so years. It was a developing concept, a unique concept of social insurance, and then it evolved into something much more involved. When I look at workers’ compensation today and look at it when I started 50 years ago, I am reminded of a comment made by President Eisenhower. You remember President Eisenhower, Jud? You probably heard of it of course.

Alright. I grew up as a very young kid where I like Ike, I like Ike. He warned the country of the military industrial complex, and I don’t want to make light of the situation, but I think workers’ comp is turned into an industrial accident industrial complex. The field itself is so much more complex and complicated than it used to be. There are more professionals outside of lawyers and outside of claims, people that are involved in workers’ comp. There are risk, obviously, risk managers and actuaries and insurance brokers, but there are medical case managers, there are private investigators. There are all sorts of cost control industries that have crept up on how to manage the expensive workers’ comp and deal with the sheer volume of claims and manage that within a dispute resolution system or an administrative agency that has grown. And when I first started practicing workers’ comp, that was a phrase that was used all the time.

And I don’t know if it came from a case or it was just a term of art, but workers’ comp is supposed to be simple and summary as opposed to civil litigation where there are depositions and interrogatories and pretrial discovery and also pretrial depositions. Workers’ comp was supposed to be and is no longer a very simple matter of filing a claim and getting it heard. There is just a lot of things that happen in between the happening of an accident and the payment of a benefit. To some extent, modern technology has made things much more speedy by the other extent, it is much more cumbersome and complex. We didn’t have things like utilization review or fee schedules or managed care or nurse case managers or all of these other things that are beneficial but overly complicated. We have now provisions for vocational rehabilitation, which we didn’t have 50 years ago if we did.

It was just sort of a passing nod. If you go to any of these national or even regional conferences on workers’ comp, you will see thousands of people attending these conferences. You will see a vendors hall of exhibitors marketing their products to the workers’ compensation industry for cost containment, for enhancing their productivity, for doing all sorts of things that will help manage their cases. But when you think about it, it is adding extra levels of complexity. At its very essence in an employer pays a premium to an insurance company, they collect those monies, they invest those monies, and while those monies are being invested, they pay the claims as they arise. But in between those two processes of paying a premium and paying out a benefit check, a lot is happening. A lot of what is happening makes it more complex and more doctrines, more rules of law have crept up going and coming.

Rule fellow, servant rule, idiopathic, fall rule, all sorts of things that make the eligibility for workers’ compensation even much more harder to prove and achieve because if somebody falls off a ladder and breaks her arm, it’s a workers’ comp case. If somebody’s breathing chemicals over a lifetime and then gets sick 10 years later, is that a workers’ compensation claim 50 years ago? That probably wasn’t today. It could be. So as you can see, medical science has advanced, the workplace has changed, the way people are paid has changed. We have people who are not traditional employees. That has changed. So there have been so many changes that have taken place that the system that was created a hundred years ago for an economy as it existed a hundred years ago is almost like I use this phrase maybe too much, trying to fit an oval peg into a round hole. It almost fits right. It needs to change.

Judson Pierce:

Lemme push back on that. I was thinking about that as you were talking. And we live by a constitution that was written 250 say years ago, and that didn’t envision the types of changes to our economy and our life that, but yet we still live by it. We choose to live by it. How is that any different? I mean, we’re basically interpreting the Constitution to meet our real life now and can’t we do that same with comp?

Alan Pierce:

I’m so glad you brought that up because it is a very relevant question because if you go back into the history of workers’ compensation in the United States, and I find that a fascinating history. In fact, we’ve done a couple of podcasts on it. The first question that came up was, is a law that will take away a person’s right to sue his employer civilly or in tort for negligence and replace it with a system of defined benefits? Is that constitutional? Is it due process? Is it a proper trade-off or balance? And the very first workers’ compensation law in New York was passed, I think like in 1908 or 1909, and it was declared unconstitutional for the very reason you mentioned that the constitution provides that there should be an adequate or a substantial remedy in the case of a due process for anything legal. And coincidentally, the day after the high court in New York declared it unconstitutional, we had the triangle shirt, waste fire in March of 1911 in New York.

And the need for workers’ comp was never, ever more apparent. So workers’ comp laws were passed in 1911 and through the early part of the 19 teens, and they ended up, as you would expect before the United States Supreme Court in a landmark case, determining whether in fact the US Constitution would allow for something like a workers’ compensation system. And in that case, white versus New York Central Railroad. The Supreme Court wrestled with the constitutional question as to whether a workers’ compensation program is indeed constitutional from its due process, equal protection standpoint. And in finding it constitutional, they indicated, and this is the precept that has continued for the last a hundred years, that for workers’ compensation to work, the benefits must be adequate and reasonable and the costs to the employer must be reasonable. And the difficulty has been defining what reasonable is and what adequate is.

And that is a debate that is going on right up until today. And in fact, the US Supreme Court in all of its collective wisdom in 1917 could not define what adequate benefits are or what reasonable benefits are. In fact, they did so by using the negative. They talked about benefits that are not unreasonable or inadequate. And in trying to focus on that, my friend and colleague, somebody, I find an expert in this field, professor Michael Duff at St. Louis University wrote a law review article in 2019 for the Tulsa Law Review titled How the US Supreme Court deemed the Workers’ Compensation Grand Bargain Adequate without defining adequacy. And in his article, he says, the problem that white, the white case leaves to posterity or US is one of unarticulated boundaries. Boundaries for employee benefits as a substitute for tort are said to exist but are never delimited except by inference.

A substantial expression of the impairment of earning capacity remains in the eyes of the beholder that these particular determinations, and I will now use the words of the Supreme Court in this case, the white case, no criticism is made on the ground. That compensation prescribed by statute is unreasonable an amount in general or in particular, any question of that kind may be met when it arises. And that question has arisen every day, every month, and every year since 1911. Since 1917. And it is a political decision. At what point are benefits too great for injured workers? I argue they aren’t and they never were. At what point are the costs to employers too high? There have been times that it has been, and whenever that has happened, there have been corrections when injured workers’ benefits have been so egregiously low. There have been changes when costs for those benefits and the delivery of those benefits have been unreasonably high.

There have been changes in the statute. We’ve seen that in the 1980s across the country, there was workers’ comp enhancement of benefits across the board largely because of the results of the National Commission in 1972, when those benefits became too costly for the system. We had another period of recession, a retraction of those benefits that began in the nineties. And it’s a seesaw. It’s a back and forth. What happens in workers’ comp depends on the political process, the legislature, the executive branch, and it belongs to the judicial process. And the tension between adequate benefits for reasonable costs is a tension that has existed, continues to exist and is the biggest challenge in creating and maintaining a successful workers’ compensation system.

Judson Pierce:

Well, why don’t we take our last and final break of this program, and when we come back, we’ll talk about where you see this area of the law as we’re headed now into the second century of workers’ compensation. We’ll be right back with Alan Pierce, and we’re back before we left, you were talking about how it’s almost like a, I can picture of lungs breathing or heart beating, that the workers’ comp system is a living, breathing document that changes and is shaped over the years through politics, through legislation, through interpretation, by judges. Do you see that continuing, Alan did this sort of back and forth, this pendulum shifting and trying to find that equilibrium balance that we’re so focused on finding?

Alan Pierce:

Yeah, I do because history tells us it’s always been that way, and history is telling us that it’ll always be that way as long as we have a system in most every state that is basically run by private profit making insurance companies and with state administrative oversight. There are some systems, some states where they have a state system. It’s sort of not unlike unemployment insurance. In other words, there’s a state fund that pays for injuries. There are certain governments outside of the United States that have state run systems. We have federal employees that are covered under the federal workers’ comp system. There are no insurance companies involved. And all of that is set by Congress. But for the most part, the word balance is the crucial word here.

The development of workers’ comp was aqui, pro quo was a bargain. It was a balance between the needs of injured workers to be compensated and have their medical care provided and the obligation of the employer to pay for that. So the tension has always been that. Now, what has changed in the last 50 years? Actually, I would say probably within the last 10 to 20 years we’ve seen the most change. First of all, as I mentioned earlier, the system is more complicated and complex. We are seeing an economy that is changing. It used to be in order to be covered for workers’ comp, you needed to be an employee of an employer and defining who and what is an employee and employer is starting to be blurred. We have the so-called gig economy. We’ve done a couple of shows on that where people are platform-based workers, Lyft, DoorDash, Uber, other types of even professional employments are done on a quote gig basis where the people get a 10 99 form.

They’re considered independent contractors. So we have a gig economy that is changing and growing. We have the introduction of artificial intelligence, which is changing the way cases are handled and processed. The political influence in the state houses for change has changed. We have a much more vocal business community that can assess the cost of increasing benefits on their bottom line and the fact that they’re competing with their neighbors across the border. So they want to keep their workers’ comp costs low. The political influence, there are not as many folks advocating for injured workers in state houses around the country. Labor unions are still our biggest ally. But if you look at the number of people that are working and covered by collective bargaining agreements, it’s in the 10 to 15% range. And frankly, workers’ comp and workers’ comp change legislatively is not always on the top tier of concerns of labor unions.

They’re looking at health insurance, minimum wage, fa, family leave, all of these other things. So who does advocate for the injured worker? The lawyers do, but we are probably the least listened to messenger because people look at us and say, well, you make you a living doing this, why wouldn’t you be advocating? So we have, the political influence has changed. There have been talk about going abandoning workers’ comp to a single payer system when the Affordable Care Act was first proposed. It also included workers’ comp and the insurance industry in particular got up in arms. Wait a minute, if private insurance or the government is going to pay for universal healthcare and not paid for by the workers’ comp insurer, how’s that going to work? So are we going to have a scheme that is totally governmental run That could be. We also are losing the personal relationship between the injured worker and the system.

When I was an adjuster, I was on the road. The reason I had a company car is I was supposed to go out and visit an injured worker with 24 hours of their injury. I got to know everybody that was on workers’ comp until they got a lawyer and I got to know the lawyers. There is no personal interaction between the payer of benefits and the injured worker for the most part. I’m not saying that as a blanket rule, but even the processes now, things are going paperless since CO even the dispute resolution process is becoming more and more impersonal. Everything is done on a Zoom or a WebEx virtual platform. So when we do present our client to a judge or a decision maker, the judge or decision maker isn’t seeing, observing and looking at listening to our client in person, but they’re seeing them as a group of pixels on a screen.

One of the things I fear is that as this continues, there will be a tendency to start to view workers’ comp as just another fringe benefit. Something like short-term disability, something like long-term disability, something like auto insurance or social. It is different from all of these things. I have always maintained that workers’ comp, the payment of workers’ compensation benefits is a moral legal as well as an ethical obligation of an employer. It goes back to biblical times, the prompt payment of wages. And if you go back into the biblical tracks, you’ll see that if a worker is injured, there’s an obligation of that employer who profits on the labors that cause that injury to take care of that worker in some fashion or form. That is a moral obligation. It is a religious spiritual obligation. It’s a legal obligation how we best do it. That’s another question we struggle.

I think the system we have is, for lack of better term, the worst of all systems except everything else. It’s got its flaws, but I think its essential foundations are intact. Let’s pay a reasonable, adequate benefit to an injured worker and make sure the cost does not burden unduly burden the employer because those costs get passed on to the consumer. It gets passed on to you and me, or it gets shifted to the taxpayer, becomes a burden of Medicare. It becomes a burden of private health insurance or it’s a burden of the worker’s family who has to go without medical care or go without any wages. So I have preached about as much as I could on this subject. I could probably talk for another two hours, but I think you get the gist. This says workers’ comp has become part of my identity as a person and professional.

I think I’ve seen that in you. I know I’ve seen that in you, and I think that’s something I think I’ve seen in my colleagues here and most of my colleagues that practice workers’ comp, regardless of which side of the verses they are my best friends and my most cherished colleagues are as much on the defense side of things as they are on the claimant side of things. I think it’s a collegial group. I’ve enjoyed the practice. I’m not going anywhere soon. I may be rounding third, but I’m still home. Plate is still a long way away. I plan to cross it standing up. I’m not going to slide in and I hope that won’t hope. That’s a few years away.

Judson Pierce:

Right? Good. Well spoken like a true baseball fan and workers’ comp fan. Alan, why should we even try to bring in an outside guest next time? Why don’t we just keep doing this, you and me rambling on about workers’ comp and if anyone, well,

Alan Pierce:

I would say that at some point it probably would be better than a sleeping pill for most of our audience. So I don’t want to go there. But toward that end, now that you mention it, I was mentioning to our producer before we started, we’ve been doing this podcast now for over 19 years, but 140 shows, that’s a hundred topics. Some we’ve done a couple of times, but we are always interested in new topics. They come up all the time. But if any of you listening either think you could be a guest that brings something new to the field of workers’ comp or you have a topic you’d like to hear, drop Jud a line j Pierce, J-P-I-E-R-C [email protected] and great suggestion. I think if our audience weighed in on what they’d like to hear and who they’d like to hear, or if they could be a good guest, we’re certainly happy to expand our network of professionals who we speak with toward that end. So enough about me and the next show will feature somebody who has something even better to talk about.

Judson Pierce:

Well, that’s highly doubtful. I hope you all enjoyed this as much as I did as a son, but also as a law partner with Alan Pierce over 25 years. Looking forward to many more conversations like this to come from all of us here at Legal Talk Network, we wish you a very, very good day and make it a day that matters.

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