President’s Message
Nominations Are Now Being Accepted for the Class of 2021
Spotlight on a Fellow – Meet Catherine Tanaka Surbeck
Kids’ Chance Update
Law Student Writing Competition 2020
Articles of Interest:
Hon. Frank McKay
Robert Wisniewski
Honors and Accolades
In Memoriam – Don Lampert and Bill Sparks
___________________________________________________________
I am a huge fan of the Food Network channel on cable TV. My favorite show on that network is an offering called “Good Eats.” The premise of the show is simple. The host, Alton Brown, takes a dish and teaches you about it and teaches you how to prepare it. However, that is not the inspiration for this column. Recently he decided to look at some of his first shows and redo them, or as he calls it, “reload” them. On those shows he takes the dish on the original show and determines if he can make it better or point out where he erred in the first effort. That is the inspiration for this article.
During the time of COVID, I have been going through, as many of you likely have, old files and discarding what no longer gives me joy. Thank you, Marie Kondo. During the years 1993-1994, I served as President of our County Bar Association. As president, my most important duty was supplying a column for our monthly publication called the Johnson County Barletter. In going through old issues, I stumbled upon a column written in May, 1994 about the best pieces of advice I received as a young lawyer, be it from older lawyers, judges, or even clients. I thought it lent itself well to updating and that is what I am going to do.
“There is so much about the practice of law that they do not teach you in law school. Much of this ‘post- doctoral’ learning comes from other lawyers and sometime even clients.” That was the thesis of the article and I stand by it today. Age does give us perspective. I now realize how little I knew about the practice of law when I graduated law school. I now also realize how we need to continue to learn even as we think about phasing out our careers and how important it is for us to pass on lessons we have learned in the practice. I continued with three examples and pertinent explanations.
“’There are cases that will deserve to win, that you will lose, but there are also cases that you deserve to lose that you will win.’” Hon. Phillip Woodworth, circa 1982.
“This is probably the best bit of advice I received as a young lawyer. When I left law school, I was versed in the technical aspects of the law, but I knew very little about the art of practicing law. I could use the books and find the law, but I really hadn’t had the experience of controlling a client or persuading a jury. Judge Woodworth was trying to tell me that practicing law is an imperfect science. There are things that happen that cannot be explained. He was also pointing out that the ledger evens out over time. As a result, I try not to celebrate too much after a win, nor despair too much after a loss.”
This was the advice he gave me as I clerked for him before I graduated law school. Although no one will likely use the name Phillip Woodworth in the same sentence as Learned Hand when describing judges, his practical approach stands the test of time. He also used to muse that the reason we have lawyers and courts is to keep people from killing each other in the streets. An interesting thought, but one for another column.
“’This is a million-dollar case and this is a ten-cent memo.’” W. (Willis) Barton Brown, circa 1984.
“After an especially mediocre performance on a research memorandum on a case Bart was defending, he walked into my office, gave me this advice and flipped the memorandum on my desk and walked out. This falls into the category of learning more from your failures than you do from your successes. I think of Bart’s comments often to remind myself that each project, each case and each client deserves your best effort. Whenever I feel the urge to cut a corner or take a shortcut, all I have to do is picture Bart in the doorway of my office and the urge disappears.” Bart Brown was the best teacher for whom a young lawyer could have hoped. He grew up in the small town of Atwood, Kansas. Atwood is where the borders of Colorado and Nebraska meet. Likely he would have seen both states from his backyard. Last year he passed away, and my world is colder because of it. Bart and I remained friends, even after I left the firm that contained his name. His words and his spirit stay with me. When I close my eyes, I can still picture the circumstances of this vignette. Good advice is timeless, and his advice has stuck with me for the last 35 years.
“’Check to see if you still have your wallet.’” Bob Sundvold, circa 1989.
“This is the best advice I ever received from a client. During the NCCA investigation of the Missouri basketball program, there were some days that did not go well. After an especially long, difficult day, Bob said I should check to see if I still had my wallet, and told me he had previously received the same advice. Several years earlier, the MU basketball team had gone to Notre Dame and was taking a whipping. In the second half, with the lopsided score in favor of Notre Dame, Bob was sitting on the bench despondent. Norm Stewart leaned over to him and told him to check to see if he still had his wallet. Bob complied and told Norm that it was still there. Norm turned back to him and said, ‘See, it could be worse.’ Now, after a setback, I always check my wallet to remind myself to keep the setback in proper perspective.”
As many of you know, I love college basketball. However, my loyalties lie with the University of Kansas. To my friends, the representation of an assistant coach for the bitter rival (whose name will not be repeated here) is nothing short of treasonous. To my enemies, my representation of the bitter rival (whose name will not be repeated here) was a subterfuge for sabotaging their basketball program. It was kind of like being a cross between Benedict Arnold and the Unabomber. But it was fun, and scary and overwhelming and every other adjective you can think of, especially for a young lawyer. Now as we are hunkered down in a pandemic, either by choice or executive order, we need the hope this advice offers. Not that it could be worse, but the corollary, that it has to get better. Bob persevered to have a successful career in coaching, and with motivational insights like that, it is no mystery as to why.
In the original article I ended it with a story of a young lawyer going to court. As I read it now, it was an awkward ending. Now I have the chance, with years of gained insight, to conclude it in a different manner.
The audience is different, so should be the ending. To my now mature audience, I leave you not with a cute story but rather a challenge. I challenge you to treat your clients, associates and adversaries in a way that will allow them to one day write an article about your advice and how it changed their life: Like these pieces of advice changed mine.
Kip Kubin
Overland Park, KS
The American Academy of Workers’ Compensation Physicians, an organization that was formed to train physicians in the basics of Workers’ Compensation insurance is conducting a survey on stakeholders in the workers’ compensation process and has asked our cooperation in publicizing their survey. They are requesting input so they can plan future trainings for their members. We are giving you notice of that opportunity to complete the survey if you so choose. Any participation is voluntary on your part, and the College is not encouraging or discouraging you from participating in the survey. You can find the survey here if you would like to participate.
The nomination process officially began on September 1, 2020. Forms were emailed to all Fellows in August, but if you would like another copy, feel free to contact Susan Wan. Please review all forms carefully as they contain not only the qualifications necessary for admission but also the procedure to follow and the considerations you should keep in mind when choosing a candidate. A timeline is set forth below:
It is our hope that we will soon have members in the College from all 50 states, and that we will increase the number of our members coming from the judiciary, academia, and among minorities and women in the profession. Please consider nominating an attorney from any of these categories. In addition, nominations of sitting judges can only be made by the Board or a fellow adjudicator. Please contact the Honorable LuAnn Haley if you have a name of someone who should be considered for membership. You can also access a complete copy of the Bylaws on our website at https://cwclawyers.org/.
The 15 th Annual Induction Dinner will follow the mid-winter CLE program sponsored by the Tort Trial and Insurance Practice Section of the ABA and will take place at The Westin New Orleans Canal Place from March 19-20, 2021. If you have any questions about the Nomination process or the Induction Dinner, please contact our Executive Director, Susan Wan, at susan.wan@cwclawyers.org. If you have questions or concerns regarding the nominating process and/or the committee review of the applications, please contact: the Nominating Committee Chair, Bob Wisniewski, at bob@azhurtonthejob.com.
Catherine Tanaka Surbeck represents plaintiffs/claimants at the law firm of Freedman & Lorry PC in Philadelphia, Pennsylvania. She is on the Board of the College of Workers’ Compensation Lawyers. Cathy answers the following questions to allow our readers to get to know a bit more about the CWCL’s Board members:
Do you represent injured workers, employer/insurers, or are you exclusively a Judge or Mediator? I represent injured workers.
How long have you been working representing the same segment of the workers’ compensation industry? Since May 1997.
Have you worked in any different segment of the workers’ compensation industry in the past and, if so, which one? From January 1993 to May 1997, I represented employers and insurance carriers.
Are you in private practice? If so, how many lawyers are with your firm? My firm, Freedman & Lorry, has fifteen attorneys.
What is your case load like? My firm’s workers’ compensation department has over 150 active cases that we work on together collectively, of which about a dozen are of my origination. My practice is evolving, and I am working on Social Security Disability cases as well as LHWCA cases that involve but are not limited to hearing loss and DBA claims. In addition, I have a number of third-party cases which I originated and assist in litigating that involve motor vehicle accidents and slip and falls. My firm is a general practice firm with a rich history in representing injured workers, so we also handle criminal, domestic and general litigation matters which is extremely useful as I have been able to provide full service to my clients.
For practicing attorneys, on average, how many cases do you try in a year? Pennsylvania Workers’ Compensation litigation features a series of administrative hearings. We do not have one big trial. We litigate our cases through a series of hearings and depositions. On average, I participate in over 100 hearings and 20-30 depositions (medical experts or fact witnesses) in the course of a year.
Did you choose the practice of workers’ compensation law or did it choose you? Please explain. Workers’ Compensation chose me. When I graduated from Temple University Law School in June 1992, the market for brand new attorneys was not great. I secured employment initially as a law clerk for the in-house firm of Traveler’s Insurance Company. I was a clerk for approximately 6 months until I got promoted to an attorney and gained a case load. I remained at Traveler’s for another year at which point I was recruited to Rawle & Henderson as a defense attorney in workers’ compensation. In the years that followed, Pennsylvania workers’ compensation legal work exploded. It was a busy practice regardless of which side you represented. In May 1997, I was once again recruited and left the defense/carrier side and began representing injured workers and have continued representing injured workers to this day. It has been a rewarding practice. I enjoyed helping my clients whether it was for a few weeks of benefits or a fully litigated matter. I fully believe that every injured worker wants to be heard and am proud that I am able to assist them in this process
When were you admitted to the College of Workers’ Compensation Lawyers? I was inducted March 2016 in New Orleans, LA.
What is the best thing about being a Fellow in the College of Workers’ Compensation Lawyers? I enjoy meeting, working with and sharing workers’ compensation experience with other attorneys and judges who are passionate and proud of our profession. I have been honored to speak on panels with other CWCL fellows and it has been such a remarkable experience. The depth and breadth of knowledge, professionalism and collegiality makes me proud to say that I am a Fellow of The College of Workers’ Compensation Lawyers.
Are you active in the legal community? If so, how? I am a long-time board member of the Philadelphia Bar Association Workers’ Compensation Committee. I also am a long-time member of the ABA’s Tort, Trial and Insurance Practice Section, specifically in the Workers’ Compensation Committee but am also active in the Section’s leadership as I am a current member of our Council. I am also active in the Workers’ Injury Law Group and am incoming Secretary as of October 2020.
Are you active in your general community? If so, how? I volunteer at my children’s school. I am active in our swim club.
Tell us what activities you enjoy outside of work. I love to cook, bake and garden. I also enjoy traveling with my family and we cannot wait until we can resume traveling.
Please share some words of wisdom with our readers. In these turbulent times, be kind to others; be generous; be grateful for what you have; and do not be afraid to ask for and offer assistance.
Support Kids’ Chance Awareness Week 2020 One Week. #MoreMoneyforMoreKids
Kids Chance state organizations provide scholarships to children whose parent has been seriously or fatally injured on the job. Scholarship applications increased in 2019, but we know there are more students in need of assistance. In fact, the COVID-19 pandemic has made our already vulnerable population of students even more vulnerable. Kids’ Chance Awareness Week is designed to increase our mission’s visibility by concentrating the efforts of the Kids’ Chance community spreading the word about our scholarship opportunities. Now in its sixth year, we can tap into the following we’ve built around this initiative to advocate for our mission. The College of Workers’ Compensation Lawyers has long been a part of our community, and we want to personally invite you to participate.
How Can I Get Involved? Kids’ Chance Awareness Week is November 9-13, 2020. Here are some ways you can show your support:
Let us know you plan to participate in Awareness Week
Post the Planning for the Future story in this media kit on your company’s website
If you or someone you know is eligible for a Kids’ Chance scholarship, please contact us via our Planning for the Future form.
Spread the word about Kids’ Chance Awareness Week through social media using #KidsChance
Add our banners to your personal or company social media channels during Awareness Week
Place the Kids’ Chance badge on your company site and link it back to www.kidschance.org
Contact the Kids’ Chance organization in your state to find out what special Awareness Week activities are planned.
Kids’ Chance is now in 48 states. Together, we can achieve our goal of #MoreMoneyforMoreKids and help each student achieve their educational dreams. To learn more about Kids’ Chance, please visit www.kidschance.org.
Fellow Nariman Dastur, Pittsburgh, PA, organized and then directed, on September 5, 2020, the annual Pittsburgh 5K Fundraiser for Kids’ Chance. (Properly social-distanced!) The race had a nice turn-out. The local high school cross-country stars descended on the scene to pretty much blow everyone else away. The accompanying photograph depicts Mr. Dastur along with CWCL Vice President Dave Torrey.
Submissions are now being accepted for the 2020 College of Workers’ Compensation Lawyers Law Student Writing Competition. Fellows of the College who are law school professors in any capacity are encouraged to share information on this competition with your students. In addition to the prize money for the winning articles, there is a $1,000 award to the law school of the first place winner.
TOPIC The scope of permissible topics is broad, i.e., any aspect of workers' compensation law. Students are encouraged to present: a public policy issue; a critique of a leading case or doctrine; or a comment on a statute or the need for a statutory modification.
ELIGIBILITY All students currently enrolled in accredited law schools in the United States and all those recently graduated from them (graduation in 2020).
PRIZES First prize – $2,000, (An additional $1,000 to winner's law school scholarship fund). The first place winner's article will also be considered for publication in the Workers' First Watch, The Workers' Injury Law and Advocacy Group (WILG) magazine, and the ABA Tort and Insurance Practice Section Law Journal. The winner will also be invited (expenses paid) to the CWCL’s Annual Induction Dinner and will be recognized during the program. Second prize – $1,500 Third prize – $1,000
1. Articles must be original from the applicant and limited to one entry. Articles must not presently be under consideration for any other publication or written as part of paid employment.
2. All articles are to be submitted in the following format:
3. If published by the College, the articles become the property of the College. No submitted article may be published elsewhere until after announcement of the winners of the competition. Announcement of the winners will be made at least 30 days in advance of the Annual College Induction Dinner, March 20, 2021. 3. Include a cover letter with your entry stating your name, mailing address and phone number (both school and permanent), name of school and year of graduation.
4. Applicant must be currently enrolled in an accredited law school or submit entry within a year of graduation.
JUDGING The evaluation standards will be organization, quality of research, depth, originality of analysis, clarity of style and readability. The College reserves the right not to award and/or to reject any or all submissions.
Opinions expressed by our colleagues in these re-published essays are strictly their own and are not to be attributed to the College of Workers’ Compensation Lawyers. Value Added to Networking As Comp Goes Virtual By the Hon. LuAnn Haley, Fellow, Tucson, AZ
As disappointing as it was to see the March 2020 Induction Dinner cancelled due to the pandemic, I have been amazed over the last few months at the resiliency and continued comradery of the Fellows in the CWCL. Not only has the Board begun planning for 2021, but also the CWCL has partnered with other groups to provide workers’ compensation experts for virtual educational conferences. Although there are no “in person” meetings, which would allow face to face networking opportunities for the Fellows of the CWCL, in this unprecedented time, do not overlook the value of networking with other Fellows in the College.
Even though my practice is as a workers’ compensation judge in Arizona and I do not have the need to make or receive referrals, in the past several months I have relied on Fellows of the CWCL to provide valuable information for specific inquiries from Arizona attorneys. In July, I received a call from an Arizona lawyer asking for the name of an estate attorney in Pennsylvania (formerly my home state), so I called on a number of Fellows from Pennsylvania (Matt Wilson, Hon. Todd Seelig, Cathy Surbeck and Stacy Tees) to ask for a referral. Although the inquiry came on Friday night, I received four names of top-notch estate attorneys by Saturday afternoon to provide to the Arizona attorney. Two weeks later, I had a request from an Arizona Fellow for the names of premier (Massachusetts) claimant workers’ compensation lawyers to assist her son, a Harvard Business School graduate, with a volunteer project that required interviewing workers’ compensation lawyers. Again, I went to the directory and contacted Deb Kohl, Alan and Judson Pierce and within hours, they all agreed to give of their time for this project.
The “virtual”networking opportunities continue to thrive for CWCL Fellows, even without “in person” meetings and conferences. Below you will find similar comments from CWCL Fellows James Gallen (defense) of Missouri and Bob Wisniewski (claimant) of Arizona.
During my years in the College, I have found it to be a valuable networking and referral tool. We can consult our College Directory with confidence that anyone listed therein is probably a high quality attorney whom we would be pleased to have serve our clients. Through attendance at Induction Dinners and associated seminars and symposia, I have met and developed friendships with Fellows from across the fruited plain. When an inquiry asking for a suggestion of a lawyer in a specific state or area comes across my computer screen, I can usually respond within minutes, either with a fellow whom I know personally or one selected through a combination of their Directory and website listings.
This value extends beyond the field of Workers’ Compensation. Our Fellows are respected members of their legal communities, many of whom practice in firms that offer a wide variety of services. I have made and received referrals for various legal matters. Through College contacts, I have been able to help clients and colleagues identify workers’ compensation lawyers in several states, and a probate attorney and a family practitioner in specific counties far from our offices.
I have made and received calls about particular issues involving law of other states. I have found others to be willing to share their knowledge. I know that I have been helped and hope that I have helped others. Pending upgrades to the College website will enhance its value as a source of information about Fellows. When you are looking for attorneys with whom to consult or to whom to refer, state with your College Directory and website. They work!
I have been a member of the College for five plus years. My listing of Fellows is always very close at hand. When I need to refer a case to a lawyer, I also look to the College listing for a referral. I know the refen-al to a College member is referring to a lawyer of the highest integrity and credentials – remember they were vetted to get into the College. So, I can refer prospective clients to any individual who will try to help them. Even if the attorney cannot represent the individual, I typically know that as a College member, they will explain the circumstances and give competent advice. In addition, I find the use of the College listing helpful if it’s even a non-workers’ compensation matter. College members have practiced many years and know lots of attorneys in every specialty area and they’re willing to make referrals and suggest people that would be useful in areas beyond workers’ compensation
I recognize that in our gatherings we all have personally met a variety of Fellows and have a network and framework. We can call these individuals for advice on case law and procedure in each state. Unfortunately, with the COVID restrictions, we probably will not be meeting as frequently as in the past, so we will have to rely upon each individual’s listing in the directory or the expanded website that the College is proposing and planning for biographical information or the individual member’s website.
On the other hand, I have reciprocated by receiving calls from College members across the country here they’re asking for information about my state’s procedures, laws, statutes of limitations, etc. I find College members very resourceful, intelligent and prompt. Having attorneys with the College credentials and background allows me to confidently discuss cases or refer cases to College members or even just simply pick their brain on a particular case. In addition, our College members and the newsletter provide helpful information and tips about practice. In the COVID world, we now have to rely upon our membership directory, and of course working remotely is out of your office where you may be working at home. It would be useful, like for me, to keep your membership directory of the College close at hand for cross-referring, etc.
“Non nobis solum nati sumus. (Not for ourselves alone are we born.)” ― Marcus Tullius Cicero
Several years ago, I met Bob Wilson, aka @workcompking, and heard for the first time the concept that we have named our workers’ compensation system the wrong thing by overlooking the issue of recovery. I was fascinated by the paradigm shift, and now wholeheartedly agree with him that we have misspent huge sums of money and created significant misery by maintaining a focus on “compensation” rather than “recovery.” Perhaps most importantly, we have failed significantly to serve those individuals who have had the misfortune of sustaining a substantial work related injury properly. The effect of that failure on those individuals is magnified many times by the realization that the spouses, children, parents, grandchildren, and others (who are depending on that individual’s ability to work, his or her health, and of course income) have also suffered devastating consequences as the result of this misdirection. Income reductions have affected the ability to have adequate food and have caused the loss of homes, vehicles, and a lifestyle that was usually already modest.
I have spent my career, dating back to 1971, in the field of workers’ compensation in a variety of different capacities. I have become increasingly aware that the system in many states (such as Mississippi, my home state), does a very poor job of providing adequate benefits that the social legislation we call workers’ compensation was intended to address. I hear stories from colleagues in other states suggesting limitations in their systems in a variety of areas, and there seems to be continuing disagreement as to what the workers’ compensation system should be offering to the work force. The effects of an injury on the injured worker, as well as his or her family, mirror the devastation caused by an individual’s diagnosis with a significant health condition. Charities abound that serve individuals with heart conditions, cancers, and every other disease and condition we can think of because there is a recognition that those individuals and their families deserve to be treated in such a way that their needs are met. I think we need a legitimate way to serve our recovering workers after an injury and fill in some of those holes that permeate our patchwork of workers’ compensation systems spanning the country.
We have a very good national charity focused on the workers’ compensation community—Kids’ Chance is now operational in almost every state! It is a charity that I am delighted to support. Its mission to date has focused on providing scholarships to the children of seriously injured or killed workers, and the effect of that focus provides many, many heartwarming tales of success.
A component of what I envision is an ability to provide financial benefits beyond what the workers’ compensation system pays—an effort to “fill in the gaps” if you will. This will be the hard part inasmuch as trying to determine legitimate needs will require further contemplation. But there are obviously cases where the benefits could make a difference in the quality of life of an injured worker and his or her family now.
Everyone has different life perspectives, but it is my observation that many injured workers feel isolation and rejection following a work-related injury. What if we were able to provide support groups to provide interaction with others similarly situated? I am told by mental health professionals that it could make a difference. Another focus could be to provide printed or online materials to the injured worker community that are designed to provide solace and encouragement regarding what the future might hold post-injury.
Too many times, approved workers’ compensation legislation has been the result of the stronger political force at the time pulling the workers’ compensation system in one direction or another. Workers’ compensation professionals are usually not consulted regarding what is really needed, and I doubt that will change with the daily rancor we hear confirming how far apart our current political parties are on nearly every issue. So, if we cannot craft real improvement through the political process, this charitable effort deserves some consideration. Workers’ compensation professionals can and should help refocus the energy towards a new goal of recovery. We, working together, can help achieve that goal; and at the end of the day, we can truly help those whose lives are interrupted by an unfortunate injury at the workplace.
In January 2020, the International Association of Industrial Accident Boards and Commissions (IAIABC) published a comparative study of dispute resolution systems in workers’ compensation agencies in six states. Pennsylvania, Tennessee, Wisconsin, Kansas, Oregon, and the state of Washington participated, allowing in- depth study of their dispute resolution systems. Although the primary focus of the study was on the adjudicatory process, at both the trial and appellate level, the report sheds light on Alternative Dispute Resolution (ADR) in those states as well. The entire report may be found here.
At a high level, the study found that most claims in all states studied were resolved by agreement of the parties through some method of self-execution. Where disagreements do occur, states encourage the parties to discuss the issues in an attempt to resolve them. Some offer informal conferences. Some offer formal mediation programs. Some offer a combination of both. Two states, Tennessee, and Washington, mandate mediation prior to going to a hearing. In Pennsylvania, judges often mandate mediation at the close of a full hearing, which must be convened within 35 days of the request of either the employer or insurer. A fourth, Wisconsin, offers a service like mediation for pro se claimants. The study found that the success rates in these programs “vary greatly but it is clear that mediation substantially reduces cases going to hearing.”
All of these programs focus on ADR early in the litigation proceedings. They often occur in conjunction with pre-trial discovery, preliminary hearings, and/or conferences. Judges sometimes use the pre-hearing conference as a vehicle to encourage settlement. The report found that while use of mediation or ADR was common, reporting on it varied widely. Some states (Tennessee and Kansas) mention mediation prominently in their Annual Reports, while others (Washington) do not. The authors of the study argue that states should report on ADR, both to show the effectiveness of mediation in reducing the volume of cases litigated, and also to target the types of disputes in which ADR is most effective so that it might be encouraged in those areas.
Not addressed by the study are some issues particular to reporting in ADR. In most jurisdictions, mediation carries with it some degree of confidentiality. The ability to report may be limited by statute or administrative rule. Philosophically, some follow the goals of self-determination and expression of interests in mediation. For them, a successful mediation may not result in settlement of the case if the parties have freely exchanged information and determined for themselves that litigation is the best alternative. Ethical mandates in some jurisdictions dictate this philosophy.
The IAIABC study urges all states to adopt and report metrics on mediation so that states can learn from each other. The authors found that mediation is embraced by the bar in some jurisdictions and not in others. Perhaps by identifying and reporting metrics in ADR, it argues, successful practices may be found. As jurisdictions consider reporting metrics, multiple factors come into play, defining which metrics might be reported, and in what ways.
* The report incorrectly states that Pennsylvania mandates mediation prior to a hearing. See Penna.WC.newsltr_143Aug2020, pp. 73-74.
As the United States continue to struggle with a unified response to the pandemic, COVID-19 has accelerated the use of technology to the forefront of everyone’s daily routine. Zoom, Skype, Microsoft Teams, and FaceTime have changed how Americans conduct business, attend classes, and “visit” friends and loved ones. As we transition to this new “virtual” existence, the American working class is also transforming. As a result, the workers’ compensation system will be impacted as a whole.
“Workers’ Comp” in America was crafted with a “humanitarian purpose” to protect employees against unsafe and unfair working conditions. There is no dispute that the “human employee” is the center of the workers’ compensation system. Not unlike the success of the economy, all those who practice in the area of workers’ compensation depend on a thriving working class. Notwithstanding the twenty-two (22) million jobs lost during the pandemic, employers are utilizing technology at a greater rate than ever before.(1)
The loss of jobs due to automation and technology is not a new concept: support staff “taking shorthand” were replaced by dictaphones; switchboard operators were replaced by computerized phone systems; and gas station attendants and cashiers are now being replaced by “self-checkout” kiosks. Again, technological disruption to the workforce and employment is nothing new.(2)
From 2000 to 2010, America lost almost approximately six million jobs in the manufacturing sector. (3) While many politicians point to corporations “moving jobs to China or Mexico” as the primary reason for the job loss, recent data supports that eighty-five (85%) of the employment losses were due to automation and advancements in technology. (4) A typical steel mill in the United States produces five times as much steel per employee as it did in the early 1980’s. (5) Similarly, the implementation of technology has yielded productivity gains across several goods producing industries. (6) The industrial use of robots has increased from 1993 to 2007 to one robot for every one thousand (1000) workers. By 2025, it is estimated that the United States will have approximately six million robots “at work” in the automotive, electronics, plastics, chemicals, and metal industries. (7)
This begs the question, “is the United States facing massive unemployment in the immediate future due to technological advancements?” Some economists have estimated that fifty percent (50%) of all American jobs could be replaced or significantly disrupted by technology. (8) As a workers’ compensation claimant’s attorney trained to worry about the well-being of the working class, I am concerned about the future employment opportunities for clients in the food service, retail, and transportation industries. For that matter, I am concerned about any job that relies on the completion of repetitive tasks that may be automated. While I do not subscribe to the notion that a “robot revolution” is upon us, or that it may occur overnight, it would be naïve to deny the impact of technology on how we live and work (especially during and post COVID- 19).
Historically, technology sparks innovation and economic growth where new jobs are created. 9 Hopefully, these new jobs will be in excess of the jobs lost. It will be interesting to see whether Americans embrace the inevitable progression forward or cling onto “the way it used to be.” During the early part of the twentieth century, Americans lead the world with the development of the automobile, telephone, and air travel by outpacing any other country in expanding its high school education, vocational training programs, and establishing state university systems.(10)
Unfortunately, the later part of the twentieth century and the early part of this century were not met with the same amount of investment and political will. As such, American companies are often left with a shortage of employees with the needed skills to advance their businesses against the global competition. (11) Simultaneously, the current administration has introduced a series of measures that make it difficult for highly skilled immigrants to work in the United States. (12)
Like it or not, the workforce is changing. Almost seventy percent (70%) of the new American jobs created since 2010 has required medium to advanced digital skills. (13) More and more employees are required to have at a minimum working knowledge or proficiency with computers, word processing, and knowledge of basic software principles. (14) Furthermore, employees with these skills demand higher wages. While it does not appear that the robots will completely replace the human workforce, it strongly suggests that educational institutions must prioritize “job readiness” for a more technologically dependent economy. Unfortunately, the new jobs may present challenges for older workers and workers in the lower socioeconomic demographic.
A sustainable workers’ compensation system will depend on a healthy workforce with adequate training. We all “fish from the same pond” so to speak. Therefore, as workers’ compensation practitioners, we must promote continuing education of the workforce, invest in job training programs, and support economic and educational policies aimed at preparing workers for this new age of employment. The results of making “job readiness” a priority will ensure that students and workers develop the aptitude and skills necessary to adapt to the quickly evolving technological advancements evident in today’s job market. Moreover, this new generation of employees will be the backbone of the American economy; it will foster innovation; and it will likely forge global competitiveness. As for us, a thriving workforce will also ensure that we all have jobs (provided that we also keep pace with the technology). (15)
1 Bartash, Jeffrey (2020). Marketwatch. “The U.S. has only regained 42% of the 22 million jobs lost during the pandemic.” 2 Keynes, John Maynard (1963). Essays in Persuasion. “Economic Possibilities for Our Grandchildren.” 3 Atkins, Blumenthal, Edisis, Friedhoff, Curran, Lowry, St. Clair, Wial and Wolman (2011). Metropolitan Policy Program at Brookings. “Responding to Manufacturing Job Loss: What Can Economic Development Policy Do?” 4 Hick, Michael and Devaraj, and Srikant (2017). Center for Business and Economic Research. “The Myth and Reality of Manufacturing in America.” 5 Pritzker and Engler (2018). Independent Task Force Report No. 76. “The Work Ahead: Machines, Skills, and US Leadership in the Twenty-First Century.” 6 Ibid. 7 Bureau of Labor Statistics (2017). Monthly Labor Review. “The Impact of Technology on Labor Markets.” 8 Frey and Osborne (2013). Oxford Martin Programme on Technology and Employment. “The Future of Employment: How Susceptible Are Jobs to Computerization?” 9 Casey and Nzau (2019). Brookings. “Robots kill jobs, But they create jobs, too.” 10 Gordon, Robert J. (2016). The Rise and Fall of American Growth11 Gunn, Dwyer (2019). Marker. “U.S. Employers Say They Can’t Find Skilled Workers.”12 Saul, Stephanie (2018). New York Times. “As Flow of Foreign Students Wanes, U.S. Universities Feel the Sting.”13 Burning Glass Technologies and Capitol One (2015). “Crunched by the Numbers: The Digital Skills Gap in the Workforce.14 Ibid.15 Moini, Dorna (2019). ABA www.lawpracticetoday.org. “Are Robots Replacing Lawyers? Not Like You Think.”
David Langham & Chris Mandel, American Workers’ Compensation – A Study in Disparities and the Expanded Use of Presumptions (Sedgwick Institute, July 2020), https://www.sedgwick.com/assets/uploads/documents/Sedgwick-Institute_Workers-Comp_7.8.20-1.pdf
In this important insurance industry white paper, the authors review the recent popularity of presumptions in workers’ compensation laws. They first provide a short history of workers’ compensation from its inception. They note, among other things, that in some jurisdictions, laws provided for presumptions of compensability, giving the injured worker the “benefit of the doubt” in ambiguous cases that the injury arose out of the employment. These types of laws have, over the recent decades, been repealed, with most jurisdictions currently obliging the injured worker to prove his or her claim as in a tort case.
Now, however, a narrower type of presumption has developed, legislated typically at the behest of certain lobbies (firefighters seeking cancer presumptions; police officers seeking mental trauma presumptions). The authors describe such presumptions as “discriminating” and reflecting “disparate treatment by government.”
The authors discuss, accurately, how the development of these laws has laid the groundwork for executive and legislative action in the form of presumptions of causation in the realm of worker infection by COVID-19. The authors analyze the likely cost increases to the system brought about by the virus, and the application of presumptions, and caution against their indiscriminate use in this and other contexts. In the authors’ view, the overuse of presumptions unfairly upsets the bargain or compromise which is the basis of the system. This is particularly so, they suggest, because the etiology of non-occupation-specific diseases (and psychic injuries, for that matter) is still not well understood.
With regard to costs, the authors seem to acknowledge that the true total costs of COVID-19 in the workplace, and the effect of the presumptions enacted as a consequence, is difficult to estimate. Some of the cases will feature modest costs while others will exhibit serious expenditures. Still, the authors posit that, whatever the total costs, a particular jurisdiction’s adoption of a COVID-19 presumption may induce businesses to relocate to another state, or offshore its operations altogether. Notably, the authors reject the idea that such a phenomenon reflects some “race to the bottom” but, instead, characterize the same as a legitimate attempt by such businesses to avoid increased costs – particularly medical expenditures.
It is difficult to argue with many of the points made by the authors. Still, it is important to remember that occupational disease presumptions have long been part of workers’ compensation laws. A list of diseases, paired with occupations in which incurrence was thought to be a special risk, was a feature of the second British law of 1907. E.P. Hennock, The Origin of the Welfare State in England and Germany, 1850- 1914: Social Policies Compared (Cambridge University Press. 2007). My state, Pennsylvania, notably, was to emulate that approach in its enactments of 1937 and 1939.
Introduction: The author of the following essay, Honorable Noel Fidel, received his \ undergraduate degree from Dartmouth College, his law degree from Harvard Law School and an LL.M. in Judicial Process from the University of Virginia. Judge Fidel was a member of the Arizona Superior Court in Maricopa County from 1982 – 1987 and then an Appellate Judge in Division One of the Arizona Court of Appeals from 1987 – 2002. He was also the Presiding Judge of each of these courts. He was a Distinguished Professor of Law at Arizona State University, Sandra Day O’Connor College of Law and taught first-year Torts and Statutory Interpretation for six years and was an Associate Dean at the law school.
As members of the College of Workers’ Compensation, we should be interested in scholarly articles dealing with workers’ compensation. Noel Fidel maintains a practice in central Arizona and the following article was posted on his website, reprinted herein with his permission. In addition to Noel’s accolades and accomplishments above, he is my neighbor. I think everyone will find the article illuminating and right on point. That always seemed to be one of Noel’s best qualities.
As a friend of mine typically says, “I couldn’t say it better.” I commend Noel for cogently focusing us as workers’ compensation lawyers, to consider not only indemnity and medical benefits, but the actual loss of a part of our client’s life in each workers’ compensation case.
Noel Fidel was a student at Dartmouth College. The poet, Robert Frost, came to read. As Noel recounts, Frost said he was to “say his poems to the freshman class.” Noel writes: Frost did not always discount the interpretation of poetry. He was an artful man who elsewhere wrote, “Poetry provides the one permissible way of saying one thing and meaning another.” But on the day he met us, Frost added, “Sometimes you write a poem and you know it’s straight goods and they can’t do anything to it.” He called such poems “foolproof” and said “you just have to take them as they are.”
Judge Fidel put the The Self-Seeker in that category (bartleby.com 118/15.html). It is a poem he assigned to his law students every year that he taught Torts. It is surely the only work by a major poet about the settlement of a workplace injury case. The poem takes place in a New Hampshire or Vermont mill town in a boarding house at the bedside of a mill-worker whose legs and feet are severely injured. He was snagged and pulled to harm by an erratic leather conveyor belt at the mill. He does not yet know if he will walk again, though it is certain that, if so, he will be severely hobbled. He awaits a company lawyer coming up from Boston to have him sign a settlement for $500. His friend Willis arrives unwanted to talk him out of settling for so slight a sum. The injured one (unnamed in the poem) is or tries to be philosophical; Willis is angry. Much of the poem is their dialogue. Here is part of it (the injured one speaks first):
“Everything goes the same without me there. You can hear the small buzz saws whine, the big saw Caterwaul to the hills around the village As they both bite the wood. It’s all our music. One ought as a good villager to like it. No doubt it has a sort of prosperous sound, And it’s our life.” “Yes, when it’s not our death. “You make that sound as if it wasn’t so With everything. What we live by we die by.”
Soon the lawyer arrives, and Willis brings him upstairs along with the fourth character in the poem:
A little barefoot girl who in the noise Of heavy footsteps in the old frame house, And baritone importance of the lawyer, Stood for a while unnoticed with her hands Shyly behind her.
The girl Anne has found two Rams Horn orchids and brought them for the injured one’s inspection. He is an expert on the wildflowers of the region; his pleasure was to roam the hills collecting specimens for a monograph that he will now not finish – “your flowers, man,” Willis implores him, “you’re selling out your flowers,” – and he has taught the child to seek and gather rare flowers and still leave enough for seed. The two discuss what she has found, what she has left undisturbed, and what else she has seen in the woods. Eventually the lawyer puts a stop to it:
The lawyer wore a watch the case of which Was cunningly devised to make a noise Like a small pistol when he snapped it shut At such a time as this. He snapped it now. “Well, Anne, go, dearie. Our affair will wait. The lawyer man is thinking of his train.
Why did I ask my Torts students to read this poem each year? In part, perhaps, because I hoped they might linger for a moment over Frost’s mastery of verse and line. The poem is so conversational one might almost read it as a short story without noticing its meter. Yet a strict meter is there. Much of it, including the passage of the lawyer and his watch, is in iambic pentameter, 10 beats to the line. Elsewhere Frost heightens the narrative effect by permitting himself some 11-beat lines. “I’d as soon write free verse,” he once remarked, “as play tennis with the net down.” Much as lawyers who seek to be creative in their legal writing must, Robert Frost sought the freedom of his art within constraints of form.
More concretely, I assigned the poem because it captured a cruel moment in Tort history, before the adoption of workers’ compensation laws, when industrial accident victims had to sue their employers in order to recover damages, yet were generally barred from any recovery under a doctrine that deemed them to have assumed the risk, by accepting employment, of any dangerous conditions of the workplace and the job. Frost published The Self-Seeker in the collection North of Boston in 1914, just as states around the country were beginning to improve the lot of industrial accident victims by enacting workers’ compensation laws. (New Hampshire adopted its workers’ compensation act in 1911, Vermont in 1915).
Still more concretely, I assigned the poem because, unlike most of the Torts cases that we read in class, it conveyed intangible elements of the victim’s loss that are so vital to the presentation of a damage case. The injured one would be denied his one great pleasure—to walk the hills for wildflowers—for some 40 more years of life. Willis knew, and the reader knows, the force of that great element of his loss. I also assigned the poem because it shows so economically yet memorably how we lawyers can be seen by others. “The baritone importance of the lawyer” is a line I hoped my students might take to mind.
And finally I suppose I assigned it because I’m still under a spell the old poet cast on a long-past November afternoon. And, too, because The Self-Seeker is the “straight goods.” See for yourself; read it; the link above will take you there.
Please contact any committee member with questions, or to forward your article: Ann Bishop, LuAnn Haley or David Torrey
Additionally, if you are an author of a blog regarding workers’ compensation issues, please send the editors the website of your blog. We would like to include a list of all blogs written by CWCL Fellows in our next edition of the CWCL Newsletter.
Donald Lampert passed away on August 10 th at age 72. Inducted a Fellow in 2011, Don began his career teaching political science, and in 1986, became an attorney after graduating from Case Western Reserve University School of Law. He specialized in Workers’ Compensation and related employment litigation and was Senior Counsel at Calfee, Halter & Griswold LLP in Cleveland, OH from 1999-2020. He helped create the Workers’ Compensation Specialty Exam and was an Academic Advisor to the Ohio State Bar Association Specialty Board. He also was an Adjunct Professor at Case Western Reserve University Law School for 28 years. Known by many as “The Professor,” Don received several advanced degrees in addition to his JD including a PhD in Political Science from Rutgers University, an MA from University of Pennsylvania. He received his BA from the University of Pittsburgh. He is survived by his wife Patty and son Charles. A link to his obituary can be found here.
William Sparks passed away suddenly on August 26 th . He was 64 years old. Inducted a Fellow of the Collegein 2014, Bill graduated from the University of Tulsa College of Law in 1982 and was a passionate and fierce advocate for his clients for more than 35 years. He was a seasoned litigator in numerous state and federal courts, thrived as a mediator, and was recognized for his extensive advocacy of workers’ compensation in Oklahoma. Fellow Bob Burke shared that his passing “leaves a gaping hole in the workers’ comp system in Oklahoma.” In lieu of flowers Angela requests that donations in Bill’s honor be made to either The John 3:16 Mission in Tulsa at www.donate.john316mission.org; The EQUUS Foundation at www.equusfoundation.org; or DFW Pug Rescue at www.dfwpugs.com. A link to his obituary can be found here.
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