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 • • • • • • • ~ 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.”).