Commentary: How Equitable is Florida’s New PTSD Coverage?

What Does Florida Have Against Teachers and Bartenders?

As I posted Monday [click here to view that post], a bill to extend relatively broad PTSD coverage to Florida’s first responders was passed unanimously by both state houses earlier in March. On Tuesday [March 27], Governor Rick Scott signed the bill into law. While I am generally in favor of the amendment to the state’s Workers’ Compensation Act, I’m left with the nagging question: “What does Florida have against teachers and bartenders?” The new PTSD coverage will not, of course, apply to those professions (or any others, for that matter) in spite of the fact that they may sometimes face the same sorts of shocking scenes as first responders. Moreover, unlike Florida’s first responders, teachers and bartenders generally receive no special training to help them deal with such horrific situations. Florida’s amendment confirms a thought that I’ve had for some time: “hot” issues often make for “bad” law.

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Florida Legislature Approves PTSD Coverage for First Responders

Earlier this month, the Florida Senate and House both unanimously passed Senate Bill 376, so as generally to allow workers’ compensation benefits for first responders who suffer PTSD as a result of their work. The coverage protection, which treats PTSD as an occupational disease, in spite of the fact that PTSD is typically triggered by a specific event, will be effective on October 1, 2018. Passage of the bill was seem by most to be a reaction to the tragedy surrounding the Marjory Stoneman Douglas High School shooting on February 14, 2018 in Parkland, Florida.

The legislation, the House version of which was sponsored by Representative Matt Willhite, who serves as a captain in the Palm Beach County Fire Rescue Department, will become law unless it is vetoed by Governor Rick Scott within the time allowed him under law. Such a veto is not expected.

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Oklahoma Supreme Court: Parent Corporation Not Always Shielded by Exclusive Remedy Doctrine

Certified Question From Tenth Circuit re: “Dual-Capacity”

A divided Supreme Court of Oklahoma, responding to a question certified to it by the Tenth Circuit Court of Appeals, has held the state’s 2013 Workers’ Compensation Act (the “AWCA”) does not fully abrogate the so-called “dual-capacity” doctrine with regards to stockholders of an employer; they may be subject to suit for independent tortious acts if the stockholder was not acting in the role of employer [Odom v. Penske Truck Leasing Co., 2018 OK 23, 2018 Okla. LEXIS 23 (Mar. 13, 2018)]. The Court noted that, as to employers, the dual capacity doctrine could not be utilized to avoid the exclusive remedy provisions of the AWCA.

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Greetings From Nashville

ABA Workers’ Compensation Midwinter Conference is Ongoing in “Music City”

Heavy rain greeted attendees yesterday at this year’s ABA Workers’ Compensation Midwinter Conference in Nashville, but inside the Westin Nashville Hotel, the atmosphere was convivial and the sessions were informative.

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WCRI’s Upcoming Annual Conference Looks Like a Winner

Speakers Include Former Head of U.S. Bureau of Labor Statistics

The 34th Annual Issues and Research Conference, sponsored by Workers’ Compensation Research Institute (WCRI), promises to be an outstanding forum of ideas and insights relevant to today’s workers’ compensation world. To be held March 22-23, 2018, at Boston’s Westin Copley Place, the theme for this year: “Work and the Comp System: Evolution, Disruption, and the Future.”

Among the conference speakers is Dr. Erica L. Groshen, former head of the U.S. Bureau of Labor Statistics, who will offer her expertise in a session entitled, “Future Labor Force Trends and the Impact of Technology.” Advance work indicates that Dr. Groshen will discuss, inter alia, the effects artificial intelligence, robots, driverless cars, and gig work are having—and will have—on the American workforce.

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California Grubhub Driver is Independent Contractor, Not Employee

From Comp Standpoint: Are Uber, Lyft & Grubhub Truly “Disruptive?”

Lamenting that in California, a worker’s status as an employee, vis-a-vis an independent contractor, is an “all-or-nothing proposition,” a U.S. Magistrate Judge, presiding over a bench trial in the Northern District of California, has reluctantly determined that an aspiring actor, who moonlighted as a Grubhub driver for four months in late 2015 and early 2016, was an independent contractor—not an employee—and, accordingly, was not subject to California’s minimum wage, overtime, and employee expense reimbursement laws [see Lawson v. Grubhub, Inc., 2018 U.S. Dist. LEXIS 21171 (N.D. Cal., Feb. 8, 2018)].

The decision echoes a refrain heard from various parts of the workers’ compensation world and beyond, that existing laws are inadequate in handling the disruptive influences of Uber, Lyft, Grubhub, and other firms within the so-called “gig economy,” whose work forces are often made up largely of episodic, part-time workers. And yet, are existing laws really so inadequate? Are gig economy firms actually so disruptive that the workers’ compensation framework is not equipped to handle the issues presented? Do we really need some new third category of worker to respond to Uber and Grubhub? I argue below that the gig economy is not nearly as unique and troublesome as some would have us believe. Moreover, lessons from the distant past should show us that existing laws are more than sufficient to meet the demands of today and tomorrow.

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The Road Less Traveled: Wisconsin Court of Appeals Shuns Majority Rule Re: Borrowing Employer’s Tort Immunity

Temporary Employee Has Option of Claiming Benefits or Suing in Tort

Based, at least in part, on the court’s so-called “literal” reading of a Wisconsin statute [Wis. Stat. § 102.29(6)(b)1.], the Court of Appeals of Wisconsin recently held that a worker employed by one firm and assigned to a borrowing employer may proceed in tort against that borrowing employer (referred to in some jurisdictions as the “special employer”) for injuries sustained in the course and scope of the employment, so long as the worker has not already sought workers’ compensation benefits from the borrowing employer [Ehr v. West Bend Mut. Ins. Co. (In re Estate of Rivera), 2018 Wisc. App. LEXIS 16 (Jan. 9, 2018)]. In its decision, the Court adopted a position in opposition to the vast majority of jurisdictions, which generally bar tort actions by a temporary (i.e., “lent”) employee against the borrowing or special employer [see Larson’s Workers’ Compensation Law §§ 67.01, 100.01, 111.04].

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Is the Wall Strong Enough?

Recent Air Ambulance Decisions Hint that McCarran-Ferguson Insurance Barrier to Federal Involvement in Workers’ Comp May Be Decaying

Two recent court decisions, one from Texas [PHI Air Med., LLC v. Tex. Mut. Ins. Co., 2018 Tex. App. LEXIS 849 (3rd Dist., Jan. 31, 2018)], the other from the Tenth Circuit [EagleMed LLC v. Cox, 868 F.3d 893 (10th Cir. 2017) signal that the “wall” or barrier created by the McCarran-Ferguson Act (“MFA”), 11 U.S.C.S. § 1011, et seq., which generally prevents federal oversight in state workers’ compensation programs, may be showing some signs of decay. In both cases, courts have ruled that the states may not regulate the amounts air ambulance firms charge for transporting injured employees who are covered by state workers’ compensation programs. Such regulation is not allowed because air ambulances are “air carriers,” whose compensation rates are preemptively governed by the Airline Deregulation Act (“the ADA”)[see 49 U.S.C.S. § 41713(b)]. In both decisions, courts have utilized a narrow definition of “business of insurance,” as that term is used in the MFA.

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New Study Says Employer-Directed Choice of MD May Actually Increase Overall Claim Costs

Employer-Controlled Medical Care Drives Claimants to Attorneys, Erasing Savings in Medical Costs

A common mantra from the employer-carrier side of the workers’ compensation world goes something like this, “If you really want to gain control of claim costs, you need to move toward a system that gives the employer/carrier the right to choose the injured worker’s treating physician. A recent study to be published in the Journal of Occupational and Environmental Medicine [See Tao, Xuguang Grant, M.D., Ph.D., et al., “Is Employer-directed Medical Care Associated with Decreased Workers’ Compensation Claim Costs?” JOEM, December 8, 2017, DOI: 10.1097/JOM.0000000000001247], cautions that such conventional wisdom may be wrong, that while employer-mandated physician choice may reduce medical care costs themselves, the practice may also wipe away any such savings by increasing other claims expenses associated with higher attorney involvement on the claimant’s side.

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The Top 10 Bizarre Workers’ Comp Cases for 2017

Annual “Bizarre” List Began 30 Years Ago

Continuing a New Year’s tradition that informally began 30 years ago, when my mentor, Dr. Arthur Larson, original author of Larson’s Workers’ Compensation Law, and I would meet each January at his home on Learned Place, here in Durham, North Carolina, and informally exchange lists of bizarre cases from the previous calendar year, I submit to you my list of the Top 10 Bizarre Workers’ Compensation Cases for 2017. For the past dozen years or so, I have released the annual list in electronic format. As you may know, a few years ago, the annual list was even featured on National Public Radio’s Saturday morning show, “Wait, Wait, … Don’t Tell Me.”

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