ANNUAL MEETING 2013
ST. LOUIS, MO
Annual Meeting 2013
• THREE CONTEMPORARY ISSUES
David B. Torrey
Adjunct Professor of Law
University of Pittsburgh School of Law
Pittsburgh, PA
Annual Meeting 2013
• (#1) INCREASING USE OF COMPROMISE
SETTLEMENTS
TRADITIONAL CONCERNS:
Employer Over-reaching
Dissipation of Funds
Cost-Shifting
Annual Meeting 2013
• ~ Classic quote: “Patently, the purpose of
throwing safeguards around the employee in
commutation cases is to insure him against his
own improvidence, to the end that he will not
experience the horrific metamorphosis of
being Croesus on Saturday night and a
mendicant on Monday morning.” State v
Florida Industrial Comm’n, 151 So.2d 636 (S.
Ct. FL 1963).
Annual Meeting 2013
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~ States with recent liberalization:
WEST VIRGINIA (1995)
PENNSYLVANIA (1996)
NEW YORK (1996)
FLORIDA (2001)
NEW MEXICO (2009)
WASHINGTON (2011)
Annual Meeting 2013
• ~ Questioning Compromise Settlements
WORKERS’ PERSPECTIVES
ON SETTLEMENTS AND HEARINGS
by Brian Zaidman, William Boyer, and David Berry
Minnesota Dep’t of Labor & Industry. 2013
• Available on-line at:
http://www.dli.mn.gov/RS/Pdf/settlement_study.
pdf.
Annual Meeting 2013
• (#2) COMPENSABILITY
OF TELECOMMUTING INJURIES
THE CRITICAL ISSUE FOR WORKERS’ COMP:
Did the injury arise out of the employment?
Did the injury occur
in the course of employment?
(Intertwined considerations)
Annual Meeting 2013
• TELECOMMUTING:
DEFINITION FOR WC PURPOSES
A worker
(1) engaged in an employee-employer
relationship;
(2) who is laboring, by design, at his or her home
office part or all of the regular work week, as
some sort of alternative work arrangement.
(Contrast: voluntarily taking work home)
Annual Meeting 2013
• Precedents
UTAH (AE Clevite): District Sales Manager
PENNSYLVANIA (Verizon): Systems Engineer
TENNESSEE (American Cancer Society):
Dir., Health Initiative and Strategic Planning
OREGON (J.C. Penney): Interior Decorator
PENNSYLVANIA (Greenleaf Service Corp.):
International Sales Manager
NEW JERSEY (AT&T): “Salaried Manager”
Annual Meeting 2013
• THE “UNDERDEVELOPED” AREA:
TRAVEL BY THE TELECOMMUTER
1. Travel on regular office days
2. Directives to report on home-office days
3. Errands away from home office
4. Problem of “dual purpose” trips
Annual Meeting 2013
• (#3) RETRACTIVE REFORM
AND THE “DUAL DENIAL” SITUATION
Can a legislature limit the
workers’ compensation remedy to such an
extent that access to courts is violated?
Annual Meeting 2013
• Statutes that fail to compensate a particular
aspect of harm, or limit procedurally a right,
have long been held legitimate and not an
exception to the exclusive remedy:
E.g.,
Hyett v. Northwestern Hosp. (MN 1920)
Kline v. Arden Verner (PA 1983).
Weldon v. Celotex (3rd Cir. 1982).
Annual Meeting 2013
• Statutes that completely deny any
right of compensation may run afoul
of “Open Courts” constitutional
provisions or otherwise implicate a
due process denial….
Annual Meeting 2013
• Smothers v. Gresham Transfer, Inc., 23 P.3d 333
(Oregon 2001) (noting that the “principle that the
law makes available a remedy for injury to
person, property, or reputation comes from the
common law. The phrasing of remedy clauses
that now appear in the Bill of Rights of the
Oregon Constitution and 38 other states traces
to Edward Coke's commentary, first published in
1642, on the second sentence of Chapter 29 of
the Magna Carta of 1225.”).
Annual Meeting 2013
• Westphal v. City of St. Petersburg, ___ So.3d ___
(Florida 1st Dist. Ct. Appeals 2013), 2013 Fla. App.
LEXIS 3203 (reconsideration granted) (limitation
of TTD to 104 weeks “cannot comport with any
legal or natural notion of justice. It does not
comport with a notion of legal justice, because it
violates [claimant’s] state constitutional right of
access to courts, and it violates his right to the
administration of justice ‘without . . . denial or
delay,’ under article I, section 21, of the Florida
Constitution.”).