Category Archives: workers compensation

Compstitutional Law 101: Part 2: Will Sveen signal a move to judicially dismantle the “grand bargain”?

Watch out for what these three could say in Sveen v. Melin

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

WILG is hosting a summit on the constitutional challenges in workers’ compensation on April 18th, I won’t be able to attend, but this post and my last post are my contribution to this ongoing discussion.

Stating that “a seemingly obscure case could have far-reaching implications” is one of the most overused clichés in legal blogging and journalism.  But a case involving a dispute over the proceeds of a life insurance policy might impact the constitutional basis for workers’ compensation and other state laws protecting employees.

In March, the Supreme Court heard oral argument in Sveen v. Melin (paywall). In Sveen, a former spouse was challenging a Minnesota law automatically removing a spouse as beneficiary of an insurance policy upon divorce. The grounds for the challenge is the so-called contracts clause of the United States Constitution which prohibits states from passing laws that impair the obligation of a contract.

Pro-corporate legal commentators have long lamented the demise of the contracts clause at the expense of laws enacted by states under 10th Amendment police powers. When these pundits and academics write about a “contracts clause revival”, they are really writing about diminishing the rights of states to enact laws under their police powers.

One of the most important set of state laws enacted under police powers are workers’ compensation laws. In New York Central Railroad v. White  state workers’ compensation laws were found to be constitutionally enacted under a state’s 10th Amendment police powers.  State laws regulating workplace safety and the ability to injured employees to seek legal redress were one of the primary drivers for the broad recognition of police powers in the late 19th century. A good discussion of the background behind the expansion of state police powers is found in the 1898 Supreme Court case of Holden v. Hardy.  In short, the Supreme Court found that state workplace safety laws were a response to the new industrial economy of the late 19th century and valid exercises of state police powers.

University of Chicago Law Professor Richard Epstein argued that minimum wage laws violated the contracts clause.  It’s not much of an intellectual stretch to argue that mandatory workers’ compensation laws would violate the contracts clause using Epstein’s interpretation of the contracts clause. A gig economy employer like Uber subjected to a state workers’ compensation law might argue that they should not be subjected to such a law under the contracts clause.

On April 2nd the Supreme Court reversed 70 years of precdent in narrowly construing exceptions to the Fair Labor Standards Act in the Navarro case. Navarro will likely have the effect of pushing plaintiffs to file more wage and hour cases under state laws. A revived contracts clause could cut off or curtail opportunities for justice for victims of wage theft in state court.

A potential contracts clause revival should concern advocates for injured workers for other reasons. In recent years, attorneys for injured workers have had a fair amount of success in overturning anti-worker changes to workers’ compensation laws based on state constitutions. That avenue would likely be blocked with a full-blown contracts clause revival.

In the late 19th and early 20th century, state laws regulating workplace conditions were struck down under 14th Amendment substantive due process. But substantive due process also allows claims for a broad variety of civil rights that are disliked by judicial conservatives, so the substantive due process clause is disfavored by courts.  The contracts clause allows courts to strike down worker-friendly state laws without creating a mechanism for expanding rights for suspect classes of individuals like prisoners or victims of police brutality. In New York Central v. White, the Supreme Court considered and rejected arguments overturning workers’ compensation laws on substantive due process grounds and contracts clause grounds.

Finally, a broad interpretation of the contracts clause would allow the Supreme Court to overturn state workers’ compensation laws while still maintaining the narrowed interpretation of interstate commerce the Roberts court appear to be endorsing in NFIB v. Sebelius. As I wrote in a post last week, a narrow construction of the commerce clause could be a high hurdle in enacting worker-friendly chagnes to workers’ compensation laws on a federal level.

Sveen v. Melin will likely be decided this spring. If the Supreme Court strikes down the Minnesota law based on the contracts clause, I will be interested to read the language of the opinion. I will also be interested in reading any concurring opinions from hard core conservatives like Gorsuch, Thomas and Alito as those opinions could be a clue as to where the court could be going on contracts clause jurisprudence. It is unlikely that Sveen v. Melin will be grounds to invalidate state workers’ compensation laws. Supreme Court decisions are limited to actual cases and controversies that are presentd to them. But Sveen could be another step in undercutting New Deal and Progressive Era refroms.  The Supreme Court has been chipping away at New Deal era laws in cases like Navarro and the Tackett decision in 2015. A bad decision in Sveen might accelerate the rollback of pro-worker laws.

Injured Texas worker awarded $5.3 million

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

In April of 2007 Charles Robison, a worker for Texas-based West Star Transportation, suffered a traumatic brain injury after falling headfirst off an unevenly loaded flatbed trailer. At the time of the accident, West Star had “opted-out” of the Texas workers’ compensation system and forfeited its protection against negligence law suits by its employees.

 Mr. Robison filed a lawsuit in January of 2009 against his employer, and a jury found that West Star’s negligence caused Mr. Robison’s injuries.  He was awarded $5.3 million dollars in damages.

The judgment included: “$3.7 million for Mr. Robison’s past and future medical care, $1 million for past and future physical pain and mental anguish and $400,000 for Ms. Robison’s past and future loss of consortium, as well as additional payments for Mr. Robison’s loss of earning capacity and physical impairment.”

On January 23, 2015 a three-judge panel in the Texas 7th Circuit Court of Appeals unanimously upheld the jury’s decision. Employers who want to be allowed to “opt-out” of workers’ compensation programs need to understand that one of the great benefits to the employer under workers’ compensation is the protection against civil law suits.

 

Original post by Sheena Harrison, writer for www.businessinsurance.com

http://bit.ly/1v4XYkK

 

 

Settling a Workers’ Compensation Claim – Future Medicals and Medicare

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Will Medicare cover my future medical expenses for my workers’ compensation injury if I settle my case? Yes, no, maybe…the answer to this question is always a tricky one. In fact, this is one of the most complex questions that will confront an injured worker at the time of settlement.

Most settlements are final. Once you agree, you may have created a binding contract that will have serious financial repercussions for you and your family. It’s best to be prepared ahead of time so you fully understand the potential impact of a settlement. Settlement agreements cannot be set aside except in very rare circumstances. Before settling your case, you should take a full accounting of your future medical expenses and your insurance coverage. In reviewing your medical needs, do not forget to account for over-the-counter medications. These costs add up quickly over time.

If you are already a Medicare beneficiary, it’s quite likely you will need to set aside a portion of your settlement for future medical expenses. Medicare may refuse to pay for medical coverage relating to your injuries unless you’ve allocated some of the settlement funds for future medicals. Determining how much to set-aside is another complicated question and usually an outside company is hired to help assist with this determination.

Furthermore, injured workers must also take into consideration the fact that there are certain medical expenses that Medicare may not cover. For example, when an injured worker needs someone to take care of them. Medicare will not pay for these services so the injured worker would be forced to pay if she failed to negotiate this amount prior to settlement. Also, even when Medicare does help foot the bill, the injured worker will still likely pay the coinsurance amount (typically 20%). In short, be careful and think about future medical expenses.

New Trend – Penalties For Not Participating In Your Employer’s Wellness Program

Today’s post comes from guest author Tom Domer, from The Domer Law Firm.

A new study by AON Hewitt indicates more employers will be using penalties to prompt participation in an employee wellness program. Many employers use incentives for participation in wellness and health management programs such as Health Risk Questionnaires, biometric screenings, and smoking cessation programs. Those incentives include health insurance premium increases and other penalties, and potential reward such as premium discounts, gift or cash cards. All these penalties and rewards are aimed at an effort to prompt employees to participate in wellness initiatives.

The connection to worker’s compensation for these wellness programs is interesting. For example, biometric screenings could be used against employees who may later file worker’s compensation claims for occupational exposures. Additionally, such pre-existing conditions that are revealed in the screening programs may prove an additional barrier to employees receiving worker’s compensation benefits for a later claimed injury or occupational disease.