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 ID: 595682
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ANNUAL MEETING 2013
ST. LOUIS, MO Slide2
Annual Meeting 2013
THREE CONTEMPORARY ISSUESDavid B. Torrey Adjunct Professor of LawUniversity of Pittsburgh School of Law Pittsburgh, PA Slide3
Annual Meeting 2013
(#1) INCREASING USE OF COMPROMISE SETTLEMENTSTraditional CONCERNS:Employer Over-reachingDissipation of Funds
Cost-Shifting Slide4
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). Slide5
Annual Meeting 2013
~ States with recent liberalization:WEST VIRGINIA (1995)PENNSYLVANIA (1996)NEW YORK (1996)FLORIDA (2001)NEW MEXICO (2009)WASHINGTON (2011)Slide6
Annual Meeting 2013
~ Questioning Compromise SettlementsWORKERS’ PERSPECTIVESON 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
. Slide7
Annual Meeting 2013
(#2) COMPENSABILITY OF TELECOMMUTING INJURIESThe critical issue for workers’ comp:Did the injury arise out of the employment?Did the injury occur
in the course of
employment?
(Intertwined considerations) Slide8
Annual Meeting 2013
TELECOMMUTING: DEFINITION FOR WC PURPOSESA 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)Slide9
Annual Meeting 2013
PrecedentsUTAH (AE Clevite): District Sales Manager PENNSYLVANIA (Verizon): Systems EngineerTENNESSEE (American Cancer Society): Dir., Health Initiative and Strategic PlanningOREGON (J.C. Penney): Interior Decorator
PENNSYLVANIA (Greenleaf Service Corp.):
International Sales Manager
NEW JERSEY (AT&T): “Salaried Manager” Slide10
Annual Meeting 2013
The “underdeveloped” area:Travel by the telecommuter1. Travel on regular office days2. Directives to report on home-office days3. Errands away from home office 4. Problem of “dual purpose” tripsSlide11
Annual Meeting 2013
(#3) RETRACTIVE REFORM AND THE “DUAL DENIAL” SITUATIONCan a legislature limit the workers’ compensation remedy to such an extent that access to courts is violated? Slide12
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). Slide13
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…. Slide14
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.”). Slide15
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.”).