Greetings from the President

By Pamela B. Johnson
Tennessee Court of Workers’ Compensation Claims
Knoxville, TN

As you know, the NAWCJ is an organization focused on education, collaboration, and networking opportunities. In early March, we held our New Judges’ Virtual Boot Camp, where 38 new adjudicators learned from experienced judges and legal experts on matters of transitioning from advocate to adjudicator, judicial writing, conducting hearings and handling discovery disputes, weighing evidence and ruling on objections, and dealing with unrepresented litigants.

In a few short months, we will hold our Annual Educational College in sunny Orlando, Florida from August 20-23, 2023. The curriculum will include topics ranging from judicial writing, assessing credibility, determining evidentiary objections, gig economy and worker claims, comparative law panels, ethics and professionalism, and making causation determinations in light of statutory presumptions. The Annual College will also include a joint NAWCJ and SAWCA reception and presentation of the 2023 Hall of Fame Class of Inductees.  The agenda and registration will be available in the next few weeks. In the meantime, mark your calendars, and I hope to see you there.

I will conclude by encouraging all of you to become and remain involved with the NAWCJ. Join a committee, attend the Lunch and Learn programs, and/or volunteer with the Moot Court program and Give Kids the World events. Every NAWCJ activity is an opportunity to learn and engage with judges from across the country.

We offer many opportunities to get involve. Please mark your calendars and save the date for these upcoming NAWCJ events and programs:

• June 7, 2023, at 12:30 p.m. ET – Virtual Lunch and Learn: Repetitive Use Injuries
• July 28, 2023, from 10:00 a.m. ET to 5:00 p.m. ET – E. Earle Zehmer National Moot Court Competition Virtual Preliminary Rounds – VOLUNTEERS NEEDED
• August 20, 2023, beginning at 11:30 a.m. ET – E. Earle Zehmer National Moot Court Competition Quarter & Semi-Final Rounds – VOLUNTEERS NEEDED
• August 20-23, 2023 – Annual College, Orlando, Florida
• December 6, 2023, at 12:30 p.m. ET – Virtual Lunch and Learn: Gig Workers

If you wish to get more involved, or if I can be of any assistance, please feel welcome to email me at pamela.johnson@tn.gov.

By Edward K. Cheng [1]
Heidi H. Liu [2]
Henry Z. Wang [3]

 

In the April 2023 issue of Lex & Verum, Judge Thomas Wyatt from Tennessee raises the question of applying (or not applying) the rules of evidence in workers’ compensation proceedings. In this Essay, we broaden and build on Judge Wyatt’s comments and ask whether one could construct a set of model evidentiary rules specifically for the workers’ compensation context. We offer some general thoughts on what these model rules might look like as well as some next steps for such a project.

Traditionally, most workers’ compensation courts have not applied the rules of evidence to their proceedings.[4] A number of jurisdictions, however, have chosen to impose the rules of evidence, often with modification, including Alabama,[5] Colorado,[6] Georgia,[7] Montana,[8] Rhode Island,[9] and Tennessee,[10] among others.

The problem with imposing the traditional rules of evidence (even if modified) in the workers’ compensation setting is that they are not a particularly good fit. First, workers’ compensation hearings are bench trials,[11] whereas traditional evidence rules involve admissibility rules. Admissibility rules presume a bifurcated system with a gatekeeper (the judge), who screens the evidence, and a factfinder (the jury), which weighs only the screened evidence. In a workers’ compensation hearing, however, the judge occupies both gatekeeper and factfinder roles, making admissibility rules somewhat anomalous. Logically, “there is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate for himself.”[12] And practically speaking, psychological studies have shown consistently that humans have trouble “unringing the bell” after hearing inadmissible evidence. A fused gatekeeper-factfinder situation thus ideally requires a different approach.

Second, traditional evidence rules are complex, in part because they were designed for use by trained attorneys, not laypersons.[13] By contrast, as Judge Wyatt notes, in a significant number of workers’ compensation hearings the claimants are self-represented. Unrepresented claimants typically struggle with complex evidentiary rules, creating a barrier to access as well as administration problems for judges.

The conventional alternative to the rules of evidence, which is a system of “free proof” with little or no evidentiary restrictions, does not necessarily fare any better. As psychological researchers have long shown us, human decision making is fallible, and even the most experienced and well-intentioned decision makers can still benefit from evidentiary strictures. Evidentiary rules also promote consistency across adjudicators, contributing to fairness and the rule of law.

Workers’ compensation courts therefore face something of a “Goldilocks” problem. The traditional rules of evidence are ill-fitting and unrealistic for the forum.  Yet, abandoning the rules arguably takes things too far.  Is there some practical middle ground? Could we, for example, tailor a set of evidentiary rules specifically for the workers’ compensation context? And if so, what would those rules look like?

A Preliminary Proposal

In a discussion this past January, Tennessee judges showed interest in developing (or at least thinking about) a set of model evidentiary rules for workers’ compensation proceedings. We would like to broaden this conversation and open a discussion among the workers’ compensation judiciary across jurisdictions. The three of us are evidence professors, each bringing a different perspective on the project to the table. Ed Cheng has long worked with the Tennessee Court of Workers Compensation Claims on evidentiary issues, which in part prompted this project. Much of his scholarly work is on expert evidence, which is an important and contentious part of evidentiary practice in workers’ compensation cases. Henry Wang’s prior scholarship focuses on modifying evidentiary rules for contexts outside jury trials, such as bench trials and arbitration: and Heidi Liu has experience and expertise in conducting psychological studies to test the effect of evidentiary rule changes.

We would like to propose an informal working group on this topic where we can meet and connect with interested judges, get feedback on the project, understand judicial concerns and priorities, and assess what changes might be administratively or legislatively feasible. An introductory session could be done either in-person or over Zoom.

Some issues that the working group might ultimately consider include:

• • Rule simplification. If one were to take the traditional rules of evidence as the baseline, what key modifications or simplifications should be made to adapt them for the workers’ compensation context?
  • Starting over. Instead of tweaking the rules of evidence, if one were to start with a blank slate, what evidentiary rules might be desirable?
  • Procedural changes. Are there recommended procedures that would help workers’ compensation judges deal with evidentiary issues? For example, since the rules of evidence assume bifurcation between the roles of gatekeeper (judge) and factfinder (jury), can one create an analogous structure in the bench trial context? Have some courts already created such structures?
  • Pro se adjustments. What modifications to the rules, if any, should be made with respect to pro se claimants?
  • Inference rules. The traditional rules of evidence focus on admissibility, arguably to preserve the decisional autonomy of the jury. In other words, the rules only control what the jury hears, not how the jury thinks. In a bench trial context, should we de-emphasize such admissibility rules in favor of inference rules? Inference rules – much like the damage’s tables used in workers’ compensation – would ensure greater consistency among cases.

Regardless of what direction the working group takes (and there are many possibilities), any implementation effort should carefully measure outcomes before, during and after implementation of the evidentiary changes. A first step would involve direct observation or data collection by court administrators or researchers on the prevalence and frequency of different evidence practices in proceedings. This data collection could use existing practices and processes, such as court transcripts or recordings. Feedback from judges and clerks would also be valuable in laying the groundwork for any evidentiary recommendations.

More broadly, collecting data allows researchers and judges to ensure that any evidentiary modifications advance the desired objectives, such as predictability, simplicity, or fairness. It could also reveal unintended consequences.

How evidentiary rules are formed and sustained in workers’ compensation courts deserves further study and reflection, and we hope that this can be the beginning of an important and fruitful conversation!

[1] Hess Professor of Law, Vanderbilt University.
[2] Associate Professor of Law, George Washington University.
[3] Visiting Professor, Indiana University (Bloomington), Maurer School of Law; Tallahassee Alumni Professor of Law, Florida State University College of Law (starting Summer 2023).
[4] See 3 Modern Workers Compensation § 306:2 n.6 (listing jurisdictions); see also, e.g., Cal. Lab. Code § 5709 (West) (“No order, decision, award, or rule shall be invalidated because of the admission into the record, and use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure.”).
[5] Terry A. Moore, Alabama Workers’ Compensation § 25:7 (2d ed.) (2022) (“[T]he rules of evidence generally applicable to civil actions operate equally in workers’ compensation cases.”).
[6] Colo. Rev. Stat. Ann. § 8-43-210 (2007).
[7] Ga. Code Ann. § 34-9-102(e) (2013) (“The rules of evidence pertaining to the trial of civil nonjury cases in the superior courts of Georgia shall be followed unless otherwise provided in this chapter.”).
[8] Mont. Code Ann. § 39-71-2903 (1987) (“The workers’ compensation judge is bound by common law and statutory rules of evidence.”).
[9] Rhode Island Workers Compensation Court, Rules of Practice § 2.21 (2013) (“The testimony of all parties and witnesses before a Judge shall be given under oath or affirmation and governed by the Rhode Island Rules of Evidence except as modified by these Rules.”).
[10] Tenn. Code Ann. § 50-6-239(c)(1) (2022) (“The Tennessee Rules of Evidence and the Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a workers’ compensation judge unless an alternate procedural or evidentiary rule has been adopted by the administrator.”).
[11] See Henry Z. Wang, Rethinking Evidentiary Rules in an Age of Bench Trials, 13 U.C. Irvine L. Rev. 263 (2022).
[12] United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005).
[13] See Andrew C. Budzinski, Overhauling Rules of Evidence in Pro Se Courts, 56 U. Rich. L. Rev. 1075, 1076 (2022) (“The American civil court is designed for two competing adversaries to face off against one another.”).

Save The Date!

By Pamela B. Johnson
Tennessee Court of Workers’ Compensation Claims
Knoxville, TN

 

NEXT LUNCH AND LEARN: The NAWCJ will hold its next one-hour Lunch and Learn program on Wednesday, June 7, 2023, at 12:30 p.m. Eastern Time. The June discussion will focus on Repetitive Use Injuries. Join your fellow NAWCJ judges and engage in the discussion of this hot topic.

The NAWCJ launched this virtual initiative as a benefit for our members and to supplement discussions held at the “Boot Camp” and the annual Judicial College. We hope you join us to learn and discuss relevant and engaging workers’ compensation topics from the comfort of your home or office. The aim of this program is to gain knowledge, build collegiality, and develop professionally.

ZOOM LINK: Two weeks before the Lunch and Learn, the NAWCJ will send out an email blast to all members with a link to join the Zoom meeting.

FUTURE LUNCH AND LEARNS:

• December 6, 2023 – Gig Workers

By Timothy W. Conner
Judge, Workers’ Compensation Appeals Board
Knoxville, TN

 

According to preliminary results released by the U.S. Census Bureau in December 2020, there are approximately 332.6 million people living in America.[1]  Most Americans live in what are defined as “urban,” or densely-populated, areas while a minority live in what are defined as “rural” areas.  One way of viewing the difference between urban and rural populations is that eighty percent of Americans live on only three percent of the country’s land mass (urban areas), whereas only twenty percent of the population occupies the remaining ninety-seven percent of the land mass (rural areas).[2]  Thus, of the 332.6 million of us, approximately 66.5 million people live in rural America.  Occasionally, questions arise regarding whether some of the laws and regulations designed to apply in urban areas are equally appropriate for rural communities.

In recent years, with the explosive growth of daily online interactions among millions of Americans, a new way of connecting workers and customers has developed: the “gig economy.”[3]  In the last five years, we have seen a vast proliferation of online services that offer to connect consumers who have a need with workers willing to meet that need.  According to one study, more than twenty-five percent of all workers engage in “non-standard work,” and more than ten percent of workers rely on gig work as their primary source of income.[4]  Applications (“apps”) such as Uber, Lyft, Grubhub, Instacart, Handy.com, TaskRabbit, and Care.com are just a few of the online platforms gig workers use to find work.  Connecting consumers with workers and arranging for easy payment are facilitated by such apps, but, and here is the rub, the people performing those services, by and large, are not considered to be employees of the company running the app.  Instead, they are treated as independent contractors who have registered with the app to indicate their willingness to perform the particular services requested by the app’s users.  As explained by one commentator:

[T]he argument centers on a debate as to whether a ‘marketplace platform’ is no more than a passive information clearinghouse offering ‘disinterested’ space for contractors and third-parties to enter into a contractual relationship without the platform having any input into what happens thereafter.[5]

As is common with any new societal structure, legal disputes have arisen that highlight the significant impact these internet-based services have on traditional socio-economic foundations.  Recently, U.S. Secretary of Labor Marty Walsh commented that “in a lot of cases gig workers should be classified as employees.”[6]  One commentator suggested that Secretary Walsh’s comments “were interpreted as [a] signal that the Labor Department could move more aggressively to crack down on the use of contract labor.”[7]

Two primary areas of concern have been identified: First, how much control can an app exert over its workers and still maintain that its workers are independent contractors and not employees?  Second, who bears the legal risks in a situation where the actions of a gig worker cause damage or injury to another’s person or property?  In other words, can the app be held legally liable for the negligence of one of its workers?  The purpose of this article is to highlight legal disputes that have arisen as a result of online applications classifying workers as independent contractors rather than employees and to consider whether such disputes should be viewed through different lenses when considering rural versus urban populations.

A Brief Historical Context[8]

As America emerged from the Industrial Revolution in the late nineteenth century, the agrarian culture of previous centuries gave way to mechanized production lines and technological innovations such as the steam engine, the cotton gin, and the introduction of interchangeable parts.  Millions of workers who previously would have labored on farms and in fields were now working in factories around heavy, fast-moving equipment.  An inevitable result of this development was a dramatic increase in workplace injuries.  In response to the social and economic impact of the industrial revolution, labor unions began to form in the nineteenth century to represent the collective interests of American workers.[9]

At the beginning of the twentieth century, as America entered the Progressive Era led by President Theodore Roosevelt, state and federal legislators began exploring ways to offer more protections to American workers.  Laws such as the Federal Employers’ Liability Act and state workers’ compensation statutes were enacted in the early decades of the twentieth century to address workplace injuries.[10]  In addition, regulatory agencies such as the U.S. Department of Labor were formed, and commentators such as attorney Crystal Eastman and novelist Upton Sinclair, as well as various labor unions, decried what they viewed as harsh working conditions in some American industries.

Over the course of the twentieth century, various other laws concerned with working conditions were passed such as the Fair Labor Standards Act,[11] the Federal Employees’ Compensation Act,[12] the Occupational Safety and Health Act,[13] and the Family and Medical Leave Act.[14]  As a result, given the myriad of employment laws in place today, any individual entering the American workforce as an “employee” is subject to and protected by laws and regulations that define certain aspects of his or her relationship with the employer.

As employment laws were implemented, companies and workers across the country explored the limits of the employer-employee definition by entering into arrangements intended to be outside that legal concept.  Thus, workers identified as “independent contractors,” not employees, were offered “freelance” work not necessarily subject to the laws and regulations governing the employer-employee relationship.  For example, if you started a lawncare service, you could enter into agreements with various individuals to care for their lawns without becoming those clients’ employee.  As a contract laborer, you would charge a certain amount for your services, and you would not expect to receive employee benefits such as paid vacation, FMLA leave, group health insurance, or workers’ compensation coverage.  Conversely, the client who entered into the agreement with you would understand they could not dictate your hours, prevent you from offering your services to others, or control the manner in which you performed the contract work as long as the end result met the specifications of the agreement.  Hence, it is important to understand that “freelance” work has existed for decades, and the online “gig economy” is but a technological innovation facilitating this kind of work arrangement.  “[I]t represents a digital version of the offline atypical, casual, freelance, or contingent work arrangements characteristic of much of the economy prior to the middle of the twentieth century.”[15]

As a result of the increasing use of freelance or “independent contractor” agreements, courts and legislatures examining the employer-employee relationship in the context of various employment laws developed tests and protocols for determining whether someone was an employee or an independent contractor.  One common hallmark of such tests is that the mere identification of a worker as an employee or independent contractor is legally insufficient to define the relationship.  Courts and legislatures acknowledged that, in a typical negotiation for the provision of labor, companies and workers are not on even footing.  Thus, in the view of many legislators, the law must impose safeguards to ensure that a company cannot use its superior negotiating leverage to impose a classification on workers who are ill-suited to argue the point.

For example, Tennessee’s Workers’ Compensation Law sets out a test for evaluating whether a worker is an employee or an independent contractor.[16]  This test requires the court or factfinder to consider seven factors:

1. The right to control the conduct of the work;
2. The right of termination;
3. The method of payment;
4. The freedom to select and hire helpers;
5. The furnishing of tools and equipment;
6. The self-scheduling of working hours; and
7. The freedom to offer services to other entities.[17]

Interestingly, the identification of a worker as an employee or an independent contractor is not one of the factors listed.  In applying this test, the Tennessee Supreme Court has made clear that these statutory factors are not absolutes that preclude examination of other factors.  The Court emphasized, however, that “the right to control the conduct of the work” is of particular importance to the analysis.[18]

Constitutional Concerns: Freedom of Contract and Due Process

Article 1, section 10 of the U.S. Constitution prohibits states from impairing the obligations of contracts.  However, early in the development of U.S. Supreme Court jurisprudence, this clause was narrowly interpreted to apply only to then-existing contracts.[19] Nevertheless, a powerful tool was found in the Fourteenth Amendment’s due process clause.[20]  In several notable dissents, Supreme Court justices in the late nineteenth century argued that the due process clause “protects the right to pursue an occupation free from unreasonable government interference.”[21]  After several other cases included offhand discussions of the freedom of contract, the Supreme Court firmly established the right to contract as protected by the Fourteenth Amendment’s due process clause in Allgeyer v. Louisiana.[22]

This freedom of contract, however, is not without its limits.  In Holden v. Hardy, the Court acknowledged that states can invoke police powers to enact health and safety measures even if such laws and regulations interfered with the freedom of contract.[23]  In the early part of the twentieth century, the Court upheld various state regulations as being within a state’s police powers.[24]  As explained by the Court in a 1923 case, “[t]here is no such thing as absolute freedom of contract.  It is subject to a variety of restraints.  But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.”[25]  As freedom-of-contract jurisprudence has developed in the decades since, some courts have been more willing to allow regulation of employment conditions as a proper application of a state’s police powers, while others have struck down laws and regulations as having no rational basis.[26]  The question becomes whether laws and regulations that compel online platforms to treat purported independent contractors as employees have a rational relationship to legitimate state goals.

Recent Legal Disputes

Legal disputes hinging on the employment status of individuals has become a “hot topic” in the context of online marketplace platforms.  For example, in Olson v. California, a federal district court was asked to evaluate a new California law, known as Assembly Bill 5 (“AB 5”), that addresses the classification of workers as employees or independent contractors.  In reviewing the state of the law on that issue, the district court judge noted a 2018 opinion from the California Supreme Court in which that Court commented on laws designed to protect workers:

The basic objective of wage and hour legislation and wage orders is to ensure that such workers are provided at least the minimal wages and working conditions that are necessary to enable them to obtain a subsistence standard of living and to protect the workers’ health and welfare.[27]

The manner in which California courts broadly define the term “employee” is known as the “ABC test,” which deems all workers to be employees unless the hiring entity can prove the following three criteria:

• The worker is “free from the control and direction of the hirer in connection with the performance of the work”;
• The worker “performs work that is outside the usual course of the hiring entity’s business”; and
• The worker is “consistently engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”[28]

Thus, in California cases where the parties dispute the nature of the working relationship, the burden of proof is on the “hiring entity” to prove the worker is an independent contractor.[29]  AB 5 codified the “ABC test” set out by the California Supreme Court and, as a result, several plaintiffs sued in federal court to enjoin the state from enforcing this law.  These plaintiffs argued that AB 5 violates both the California and U.S. Constitutions.  Two of the plaintiffs worked for Postmates and Uber, both of which maintain online marketplace platforms (apps) as described above.[30]  Both of these plaintiffs argued that they value the flexibility and autonomy of working for a marketplace platform, they do not want to be considered “employees” of these companies, and the enforcement of AB 5 would adversely impact their lives.[31]

In denying the plaintiffs’ claims for injunctive relief, the district court concluded AB 5 does not violate equal protection clauses of the state or federal constitutions by targeting “gig economy” marketplace platforms.  After acknowledging the parties’ agreement that the equal protection claims merit a rational basis scrutiny, the court concluded, “the State’s asserted interest in protecting exploited workers to address the erosion of the middle class and income inequality thus appears to be based on a ‘reasonably conceivable state of facts that could provide a rational basis’ for any ostensible targeting of gig economy employers and workers.”[32]  The court then explained, “[w]ithout judging the wisdom, fairness, or logic of legislative choices, the Court finds that AB 5 furthers the State’s legitimate interest in addressing misclassification [of workers].”[33]

The plaintiffs in Olson also argued that individual legislators had expressed animus toward marketplace platforms in pushing for the adoption of AB 5.[34]  In response, the court explained that “such targeting, even if it rises to the level of animus toward gig economy companies, does not establish an Equal Protection violation where the statute addresses legitimate concerns of deleterious misclassification of workers in many industries, not just the gig economy.”[35]  The trial court also rejected the plaintiff’s arguments with respect to the due process and right-to-contract clauses.[36]  Consequently, the court declined to award injunctive relief and prevent the implementation and enforcement of AB 5.[37]

Job Trends in Rural Communities

Online marketplace platforms have expressed concern that legislation like AB 5 and decisions like Olson, which mandate that certain workers be classified as employees rather than independent contractors, ignore the realities of evolving economies.  According to one Canadian commentator, as of 2017, almost fifty percent of millennials in Canada already used marketplace platforms for “freelance” work and over fifty percent of new Canadian jobs were considered “non-standard.”[38]  Seventy percent of Canadian gig workers participate in that employment model by choice, and such workers value the flexibility, control, and freedom that comes with gig work.[39]  Such findings are reflected in American studies, one of which noted that many gig workers report “appreciating the control this work allows them over their time and the flexibility of scheduling.”[40]  Finally, most gig workers report they look for gig work by choice rather than out of necessity.[41]

Another commentator noted that, in rural areas where job opportunities are more limited, “online platforms could provide a valuable lifeline.”[42]  With a lower cost of living in rural communities, online platforms offer “passive income” sources and a better work/life balance.[43]  “Studies worldwide have shown that freelancers have a higher level of job satisfaction in their work lives than those with traditional jobs by choice[, and] job satisfaction is directly linked to higher productivity.”[44]  A concern often expressed in rural communities is that there are not enough work opportunities to keep young people from leaving for more populated areas.  Marketplace platforms give such people work opportunities that can incentivize them to live in and contribute to rural communities.[45]

And yet, as with most issues where strong, opposing views are held, especially by those on the far ends of the spectrum, the middle ground may be closer to the truth.

The reality of the gig economy is more nuanced: the gig economy produces both good and bad jobs. Understanding this variability in the quality of jobs helps to better assess the conflicting benefits and costs associated with the spread of this emerging work arrangement[46]

As discussed above, some states’ legislatures have reacted to this proliferation of non-traditional work opportunities by trying to “exercise control and impose regulations that they believe are necessary to protect workers from what they call ‘precarious employment.’”[47]  Other legislatures, in contrast, have passed laws that mandate the identification of gig workers as independent contractors in most circumstances.  Neither position, at its most extreme, serves the interests of a majority of workers.

The problem with trying to control naturally occurring trends by imposing countermeasures is that there are usually unintended consequences. . . . If we can agree that employer and worker motivations can (and do) vary, and that a solution for one can have negative consequences for another, the natural conclusion is that we need to embrace and support choice in our communities.  Choice is the smart mantra for a new era of work and our ability to support and promote choice is going to give rural communities a competitive edge.[48]

Therefore, it is critical that legislators representing rural communities consider both the positive and negative aspects of non-traditional employment opportunities for their constituents.  Such legislators should recognize that the advent of freelance work is not a new phenomenon.  Workers have, for many decades, relied on gig work for income, and the online marketplace platform is but a new tool to facilitate such arrangements.  Workers in rural counties, where traditional employment opportunities may be more limited, can use easy access to online platforms to increase opportunities for income, which, in turn, can increase standards of living for the community as a whole.

Legislators should also recognize that laws and regulations are already in place that are designed to protect workers from overreaching companies.  In those instances where an online platform attempts to exert too much control over the conditions of employment, courts can address those situations and craft appropriate legal remedies using already-existing laws and well-established legal concepts.  In sum, laws that force all marketplace platforms to conform to traditional employer-employee paradigms, while possibly more appropriate in an urban setting, may unnaturally restrict job opportunities in rural areas by increasing overhead costs and forcing both parties into roles neither intended.

Conclusion

The “gig economy” is alive and well, and marketplace platforms are here to stay.  Instead of seeking to force a square peg into a round hole, legislators should consider ways to educate potential workers as to the pros and cons of such arrangements and use laws and regulations already in place to maintain certain minimum protections.  Legislators should keep in mind that marketplace platforms can provide additional job opportunities and sources of income in rural communities that can improve living standards, reduce dependence on government assistance, and incentivize young workers to stay in and contribute meaningfully to the rural way of life.

[1] Census Bureau Releases 2020 Demographic Analysis Estimates, https://www.census.gov/newsroom/press-releases/2020/2020-demographic-analysis-estimates.html (last visited Feb. 25, 2021).
[2] One in Five Americans Live in Rural Areas, https://www.census.gov/library/stories/2017/08/rural-america.html (last visited Feb. 25, 2021).
[3] Other labels for this phenomenon include the “sharing economy,” the “collaborative economy,” and the “platform economy.” Nicole Kobie, What is the Gig Economy and Why is it so Controversial?, WIRED, https://www. wired.co.uk/article/what-is-the-gig-economy-meaning-definition-why-is-it-called-gig-economy (Sept. 14, 2018).
[4] How Many Gig Workers Are There?, https://www.gigeconomydata.org/basics/how-many-gig-workers-are-there (last visited April 27, 2021).
[5] Michael C. Duff, All the World’s a Platform?: Some Remarks on ‘Marketplace Platform’ Employment Laws, Social Science Research Network (Jan. 30, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id =3520723.
[6] Eli Rosenberg, “Labor Secretary Says Gig Workers Should Be Classified as Employees in ‘A Lot of Cases,’” Washington Post, April 29, 2021.
[7] Id.
[8] General historical information included in this article taken from: A Century of Progress and Perspective: Workers’ Compensation in Tennessee, Tennessee Bureau of Workers’ Compensation (2019).
[9] Labor Movement, https://www.history.com/topics/19th-century/labor (last visited March 2, 2021).
[10] What is FELA?, https://www.railsafety.com/What-is-FELA-.aspx (last visited Apr. 13, 2021).
[11] 29 U.S.C. § 201 et seq.
[12] 5 U.S.C. § 8101 et seq.
[13] 29 U.S.C. § 651 et seq.
[14] 29 U.S.C. § 2601 et seq.
[15] Arne L. Kellerberg & Michael Dunn, Good Jobs, Bad Jobs in the Gig Economy, 20 Perspectives on Work 10, 11 (2016).
[16] Tenn. Code Ann. § 50-6-102(12)(D) (2020).
[17] Id.
[18] See, e.g., Masiers v. Arrow Transfer & Storage Co., 639 S.W.2d 654, 656 (Tenn. 1982).
[19] Ogden v. Saunders, 25 U.S. 213 (1827).
[20] The 14^th Amendment to the U.S. Constitution states, in pertinent part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
[21] Davie E. Bernstein, Freedom of Contract, George Mason Univ. Law and Econ. Research Paper Series, https://www.law.gmu.edu/assets/files/publications/working_papers/08-51%20Freedom%20of%20Contract.pdf (last visited April 6, 2021).
[22] Id. at 2.
[23] Id. at 3.
[24] Id.
[25] Adkins v. Children’s Hospital, 261 U.S. 525, 546 (1923).
[26] Bernstein, supra note 20, at 8.
[27] Dynamex Operations W. v. Superior Ct., 416 P.3d 1, 32 (2018).
[28] Id. at 964.
[29] Id.
[30] Olsen v. California, No. CV-19-10956-DMG, 2020 U.S. Dist. LEXIS 34710, at *6 (C.D. Cal. Feb. 10, 2020).
[31] Id. at *9.
[32] Id. at *15 (quoting RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1154 (9th Cir. 2004)).
[33] Id. at *21 (internal citation omitted).
[34] Id. at *22-23.
[35] Id. at *23.
[36] Id. at *24-33.
[37] Id. at *46.
[38] Mary Doyle, “Should Rural Embrace the ‘Gig’ Economy,” https://ruralonpurpose.com (last visited Feb. 24, 2021).
[39] Id.
[40] Most Gig Workers Report Being Satisfied by their Work Arrangements, https://www.gigeconomydata.org/ basics/what-are-experiences-gig-workers (last visited April 27, 2021).
[41] Id.
[42] Gigonomy, Rural Work in the Gig Economy, https://gigonomy.info/rural-work-in-the-gig-economy/ (July 8, 2020).
[43] Id.
[44] Id.
[45] Mary Doyle, Should Rural Embrace the ‘Gig’ Economy, https://ruralonpurpose.com (last visited Feb. 24, 2021).
[46] Kellerberg & Dunn, supra note 14.
[47] Mary Doyle, Should Rural Embrace the ‘Gig’ Economy, https://ruralonpurpose.com (last visited Feb. 24, 2021).
[48] Id. (emphasis omitted).

By Suzette Carlisle Flowers, Ph.D.
Administrative Law Judge
Missouri Division of Workers’ Compensation

 

NAWCJ presidents devote their time, vision, energy, and creativity to advancement of the organization, as members, committee chairs, secretary, treasurer, president-elect, and as president.  After years of service, the fast and furious pace abruptly ends.  But what happens to past presidents when they call their last meeting, and put out the last fire?   Two past presidents answer this question through a one-on-one interview about life after the presidency.  Deneise Lott and Bruce Moore take us on that journey.

 Deneise Turner Lott

1. Full name and title:

Deneise Turner Lott. I am a retired Administrative Law Judge where I served on the Mississippi Workers’ Compensation Commission (“MS”) as a staff attorney for four years and as an administrative law judge for 34 years.

2. Current work status:

 I retired from the MS Workers’ Compensation Commission on June 30, 2022.  I currently serve as Vice-President of the newly formed Kids’ Chance of MS, the state chapter of Kids’ Chance of America.  I am also on the board of the MS Bar’s Workers’ Compensation Section’s Mediation Project, which recruits and trains workers’ compensation attorneys to mediate cases.  The attorney mediators donate $50.00 of every mediation hour’s fee to the Kids’ Chance Scholarship Fund.

3. Brief history of career: positions/tenure:

 After a stint in private practice, I joined the Workers’ Compensation Commission as a staff attorney.  I worked with the Administrative Judges for a year and with the Commissioners for three years.  The last two years that I worked with the Commissioners, I also taught Workers’ Compensation Law as an adjunct faculty member of The Mississippi College School of Law.

A position became open as an Administrative Judge with the Commission.  In Mississippi, the Commissioners hire the Administrative Judges with the consent of the Governor.  How deeply a Governor is involved in the hiring process depends on all the vagaries of state politics.  I suspected I was too young and unproven to get the job the first time I applied for it, and I was right!  But I did make my intentions known as a contender.  The second time I applied for an opening as an Administrative Judge, I was “out politiced,” which was not hard to do in my case.  The third time was the charm, although my luck was surely enhanced by the endorsement of a remote, but kind and sympathetic social contact: my childhood best friend’s former boyfriend was a colleague of and former speech writer for the Governor.

I had the honor and privilege to serve as an Administrative Judge for thirty-four years before retiring last summer.   During the last twenty plus years of my tenure, I was the senior judge (meaning I had more years on the bench, not necessarily more birthdays, than my fellow brethren).  Since retiring from the bench in 2022, I have enjoyed spending time on the east coast with Susannah Rose, my two-and-a-half-year-old granddaughter.  I am excited about the arrival of Susannah’s baby brother or sister in the summer of 2023.

4. How did you become acquainted with NAWCJ?

I was introduced to NAWCJ through my association with SAWCA, the Southern Association of Workers’ Compensation Administrators.  It, too, is an organization of workers compensation administrators and adjudicators, and the two organizations’ membership rolls overlap.  From NAWCJ’s inception in 2008-2009, I was impressed with its leadership and its mission to educate the workers’ compensation judiciary and improve the justice system.  Chief Judge David Langham, in particular, encouraged me to attend the annual Judiciary College in Orlando.  The quality of the programming, the easy kinship of the group which was limited to adjudicators, and the chance to learn from and commiserate with judges in my field from all over the country “hooked” me.

5. In additional to past president, what leadership roles have you held in the organization and when?

I was a board member for several years before being asked to join the Executive Committee and serve as Secretary and President-Elect.  I also helped plan the New Judges’ College and served on the faculty of several Judiciary Colleges.

6. List an achievement, event or person you believe made a significant contribution to the organization’s history during your tenure with the organization?

NAWCJ is a good example of synergy:  the combined efforts of the organization are greater than the sum of its parts.  The Judiciary College is the premier event each year, rivaled only by the New Judges’ College because of its equally impressive programming.  In between these events, Lex and Verum and Lunch and Learn virtual programs enlighten and entertain.  Likewise, I cannot single out one person’s achievement.  NAWCJ has many talented, selfless jurists whose vision, persistence, and expertise contribute to its success, including Chief Judge Langham, current and past presidents, newsletter editors, and committee chairs.

7. Do you believe the organization remains relevant today? More than ever.

8. If so, in what way?

A wise judge once told me, “Never get used to it.”  No matter how many hearings we hold or how many orders we write, each case is unique and there is more to learn – about the law, our craft, and our role in promoting confidence in the justice system. Through NAWCJ, we can hone our skills, broaden our perspective, and continually reset our expectations so we never get used to it.

9. How can members get more involved with the organization?

Attend the Judiciary College and get to know your colleagues inside and outside the classroom.  Contact board members or committee chairs and offer to work on a committee.  New talent is always welcome!  Write an article for the newsletter.  Sign up to judge the National Moot Court competition.  Volunteer to speak on a topic of special interest or expertise.  Suggest a topic you would like to read about in the Lex and Verum or hear discussed during a Lunch and Learn program.  The Conference Committee always needs help with logistics during the week of the Judiciary College, even if it is to ferry a fellow judge or two to Smokey Bones for dinner on Tuesday night.

10. How can the board do more to reach members and expand membership?

NAWCJ offers members an excellent return on investment, professionally and personally.  The benefits of membership sell themselves.  We can broadcast these benefits by continuing to strengthen ties with other professional groups, attending their conferences, and developing a “speakers’ bureau.” Innovation is also important to growth.   Actively recruiting Millennials and young Gen-Xers will help attract a whole new demographic who are eager to share their ideas and make a mark.  They are often masters of social media because they grew up with the internet in a competitive marketing environment.

11. Is there anything you would like to add about the organization yourself?

Life is about relationships, and the relationships forged through my involvement with NAWCJ still encourage and inspire me.  NAWCJ also provides a forum to think creatively and to contribute in ways my more tightly scripted life as a judge did not allow. In that regard, value added would be an understatement.

Judges John Lazzara (Florida), Karl Aumann (Maryland), and Deneise Lott (Mississippi)

 

 

 

 

 

 

 

 

 

Susannah Rose, age 21/2, Judge Lott’s granddaughter

 

 

 

 

 

 

 

 

Bruce E. Moore

1. Please state your full name and title.

Honorable Bruce E. Moore, Administrative Law Judge, Kansas Department of Labor, Division of Workers’ Compensation

2. What is your current work status?

I still work full time, and I look forward to retirement in 2026.  Retirement may include relocation to Colorado and enjoying cruise trips.

3. Please state a brief history of your career, i.e., positions and dates.

I graduated from law school in 1980 and entered private practice in Kansas City.  For about eleven years, I worked both as a claimant’s attorney and as a respondent’s attorney.  I relocated to Salina in 1991 after my wife finished her residency and began her pathology practice.

After moving to Salina, I planned to be a stay-at-home Dad to our three children.  However, after a short time, I longed to return to work.  For four years I worked as a prosecutor in the Saline County Attorney’s Office. In 1995, I was hired as an Administrative Law Judge with the Kansas Department of Human Resources (now the Kansas Department of Labor), Division of Workers’ Compensation.  I currently serve on this bench.  We have an office cat named Simone who is blind in one eye, but she is a real asset to our two-person office.  Simone goes home with me at night. My wife agreed the cat could stay provided she could name her, which she did.   I have two grandchildren.

4. How did you become acquainted with NAWCJ?

In 2010, during NAWCJ’s third year of existence, a flyer was sent to my agency, advertising the judiciary college. My director forwarded the flyer to me.  I was intrigued and applied for a scholarship. The scholarship was granted, and I’ve been coming back ever since. The second year I paid my own way.  The Director attended and became sold until the administration changed and the State lost interest.  However, the Director continued to attend.  Now Kansas judges can attend if they want to but it is not encouraged.  I asked Mike Alvey how I could get involved and he introduced me to the committee structure.

5. In addition to being a past president, what other leadership roles have you held in the organization?

I was elected Secretary in 2016. At that time, officers served two years, rather than 1, so I served two years as Secretary.  In 2018, I was elected President-elect, and assumed the Presidency for the 2019-2020 term. I have also worked on the Conference and Curriculum committees and chaired the Curriculum Committee for two years before assuming the presidency.

6. List an achievement, event, or person you believe has made a significant contribution to the organization during your years of service.

I don’t recall a single event of significance in NAWCJ’s genesis, but there is a person who’s always working behind the scenes to advance NAWCJ and its programs:  David Langham.  Judge Langham was around when NAWCJ was first formed, he knows EVERYBODY, and has been on the board both officially and unofficially (whether on the board or not, he would gladly do anything for NAWCJ). He has declined leadership roles and avoids formal recognition for his efforts, but the strength of NAWCJ is, in no small part, a product of his efforts and commitment.

7. Do you believe the organization remains relevant today?  Absolutely!!

8. If so, in what way?

NAWCJ provides the workers’ compensation judiciary an organization geared specifically to its needs, with tailor-made educational programming, the opportunity to learn other states’ approaches to common issues affecting the workers’ compensation arena, and the ability to network with judges from across the country.

9. How can members get more involved with the organization?

That’s easy!! If someone wants to get involved, they should contact any current or past officer or board member, and say “how can I help?” There are many opportunities to serve NAWCJ, depending on one’s individual interests.  Opportunities include planning for and presenting at the annual judiciary college and related activities; planning and presenting our “Boot Camps” for new and newer judges; and writing for the Lex and Verum newsletter; among other opportunities. A great way to start would be to write a letter to the Lex and Verum, introducing yourself and your organization, and expressing an interest in getting involved.  I guarantee an enthusiastic response!

10. How can the board do more to reach members and expand membership?

That’s more difficult. We communicate with the membership (and prospective members) largely by email, but we are all inundated with emails on a daily basis. It’s hard to get and hold someone’s attention with an email, particularly one that was not solicited, assuming it even got by the agency’s spam controls. Even emailed flyers can get lost in the myriad of junk mail we tend to receive.  Personal contact would be the best, maybe having a NAWCJ representative at a table at IAIABC and SAWCA events.  We also need to identify and make contact with other regional groups like SAWCA, and establish a presence at their gatherings.

11. Is there anything you would like to add about the organization, yourself, etc.?

 NAWCJ is a great organization.  I had already been a judge for almost 15 years when I found NAWCJ, and I was getting a little stale. NAWCJ rejuvenated me. I am one of 10 workers’ compensation judges in Kansas, and I staff a satellite office. The office has just my administrative assistant and me, and I was feeling isolated. With NAWCJ, I realized that, even though I was slogging through an endless docket of workers compensation claims, I was not and am not alone. Judges decide workers compensation claims in states all around me.  They may have different titles, use different terminology, and employ procedures that I may consider foreign, but we are all doing the same thing and confronting the same issues. We can learn from one another. The NAWCJ judiciary college is important in another way: Held in Florida in conjunction with the WCI conference, attendees are presented with irrefutable proof that workers’ compensation is a respected and dynamic area of the law. In some states, workers’ compensation ranks right up there in prestige with traffic court. Administrative Law Judges may be viewed by state courts and appellate judges as the “bottom of the judicial bucket” – not “real” judges, and not worthy of much respect. Attend the NAWCJ Judiciary College, meet your peers from across the country, and return home with your head held high. You/we are doing important work.

Bruce E. Moore – Kansas

By Douglas W. Gott
Chief Administrative Law Judge
Kentucky Department of Workers’ Claims

 

I.     Overview of MSAs.

Congress established the Medicare program in 1965 to pay medical expenses for the elderly and disabled. It paid those expenses without regard to whether the treatment was also covered by an employer group health plan. Congress made Medicare a secondary payer to such plans with enactment of the Medicare as Secondary Payer Act in 1980. The purpose of the statute is to prevent shifting of liability for medical treatment from a primary payer to the Medicare system.

Applied to workers’ compensation, the MSP statute precludes Medicare from paying for medical services to the extent that they fall under, or can reasonably be expected to be fall under, an applicable workers’ compensation law. 42 USC 1395y(b)(2)(A); 42 CFR §411.20(a)(2). This prevents an injured worker from spending settlement proceeds allocated to future medical treatment on anything other than that designated purpose, and then seeking to have taxpayer-funded Medicare pay for treatment when he or she becomes eligible for it.

42 CFR §411.46 requires all parties to a workers’ compensation case protect Medicare’s interests if a settlement resolves future medical benefits. If Medicare’s interests are ignored, it may disregard the settlement and refuse to pay an injured worker’s medical bills; and the federal agency that administers Medicare, the Central Office of the Centers for Medicare and Medicaid Services (CMS), “has a direct priority right of recovery against any entity…” – which would appear to include beneficiary, insurer, and attorney – “…that has received any portion of a third-party payment directly or indirectly. CMS also has a subrogation right with respect to any such third-party payment.” 42 USC §1395Y(b)(3)(A); 42 CFR 411.24; CMS WCMSA Reference Guide v3.2, §3.0, (“Ref Guide,” infra).

The only method recognized by CMS to allocate a portion of a settlement for future injury-related medical expenses that are covered by Medicare, and to require the funds be used for that purpose (essentially placed in trust), is a Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA or MSA). An MSA attempts “to estimate, as accurately as possible, the total cost that will be incurred for all medical expenses otherwise reimbursable by Medicare for work-related injury conditions during the course of the claimant’s life…” Ref Guide §3.0. A properly funded MSA must be exhausted, and the funds appropriately spent, before Medicare becomes a primary payor for treatment of the work injury.

The mandate to protect Medicare’s interests in a settlement of medical benefits has existed for many years now, but reporting requirements, enforcement warnings, and recent reimbursement actions by CMS to recover benefits have caused parties to take it more seriously. Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 added mandatory insurer reporting requirements to the MSP statute. Insurance providers and plans are now required to notify Medicare when they accept a claim filed by a Medicare beneficiary, and when “the injured party is a Medicare beneficiary and payments for medical care are claimed and/or released, or the settlement, judgment, award, or other payment has the effect of releasing medicals.” MSP Non-Group Health Care Plan User Guide, Chapter II, Version 6.2, page 3-2 (more commonly referred to as “Section 111 reporting”).

II.     MSAs are not required, but…

All settlements with funds allocated to future medical expenses must adequately consider Medicare’s interests. 42 CFR 411.46. Period. Exclamation point. (And it doesn’t matter whether the amount of settlement satisfies the CMS review criteria. See Ref Guide §8.1 and “IV” below.)

But no statute or regulation requires use of an MSA to protect Medicare’s interests. Nevertheless, CMS solely identifies MSAs as a means to protect Medicare’s interests. In guidance memos issued prior to release of the Reference Guide, CMS said submission of an MSA proposal to it for review and approval is “the recommended method to protect Medicare’s interests.” CMS Memos 7/24/06, 5/11/2011.

Separately, CMS says an MSA is “unnecessary” if all the following conditions are present, because they indicate Medicare’s interests are already protected:

• The facts of the case demonstrate that the injured individual is only being compensated for past medical expenses (i.e., for services furnished prior to the settlement);
• There is no evidence that the individual is attempting to maximize the other aspects of the settlement (e.g., the lost wages and disability portions of the settlement) to Medicare’s detriment; and
• The individual’s treating physicians state in writing that to a reasonable degree of medical certainty the individual will no longer require any Medicare-covered treatments related to the work injury. Ref Guide4.2.

Thus, MSAs are not required, but recommended to the point of seeming that they are. Nothing says they are “necessary,” or “required,” but there are specific circumstances under which they are “unnecessary.” Clear enough?

My conclusion is that MSAs should more often than not be considered as “required” even though no statute or regulation states it. A Medicare compliance attorney who spoke at a Kentucky conference in 2013 said in an outline: “You need a Medicare Set Aside every time you settle the medical portion of a workers’ compensation claim and the injured claimant is anticipated to require future medical care for the work injury.” I generally agree with that statement – an exception being for the younger claimant who has returned to work and whose injury and treatment history suggests he or she is highly unlikely to still be treating for the work injury upon becoming a Medicare beneficiary. (But even in that situation the agreement should include language demonstrating that Medicare’s interests have been considered.)

A preference for MSAs does not mean I will not approve a settlement of future medical benefits that lacks an MSA. I might find that the injured worker has not jeopardized entitlement to future Medicare benefits if the terms of the settlement are such that Medicare is not likely to find its interests were not adequately considered. Especially for an unrepresented claimant on the Frankfort motion docket, I most likely will schedule a phone conference to alert the claimant to the requirement to protect Medicare’s interests, and the consequences for not safeguarding those funds and using them for the intended purpose.

III.     CMS recommends its review of MSAs, but…

Just like there is no requirement to obtain an MSA, there is no required review or approval process for an MSA if you choose to use one. Ref Guide §1.0, §4.2, §8.0. And just like CMS says MSAs are the “recommended” method to protecting Medicare’s interest in settlements of future medical benefits, it says its review process for MSAs is also “recommended” for establishing them. Ref Guide §4.2. But while there is no limitation on the cases for which an MSA can be used, CMS limits its review of them to cases in which:

• The claimant is currently a Medicare beneficiary and the total settlement amount is greater than $25,000; or
• The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.

CMS says, “These thresholds are created based on CMS’ workload, and are not intended to indicate that claimants may settle below the threshold with impunity. Claimants must still consider Medicare’s interests in all WC cases and ensure that Medicare pays secondary to WC…” Ref Guide, §8.1. In other words, there is no “safe harbor” in these thresholds.

The “total settlement amount” referenced in the first threshold is a single lifetime number that includes indemnity, medical, attorney fees, total payout of annuities, any prior settlement funds on the same injury claim, and the amount of any Conditional Payment Liens. (It is not the settlement amount minus attorney fees and costs.) Ref Guide §10.5.3.

For the second review threshold, CMS says the following are among the circumstances that constitute a “reasonable expectation” of enrollment in Medicare within 30 months:

• The individual has applied for social security disability benefits;
• The individual has been denied social security disability benefits but anticipates appealing that decision;
• The individual is in the process of appealing and/or re-filing for social security disability benefits;
• The individual is 62 years and 6 months old (i.e., may be eligible for Medicare based upon his/her age within 30 months); or
• The individual has end-stage renal disease. Ref Guide, §8.1

The $250,000 amount in the second threshold again includes indemnity, medical, attorney fees, total payout of annuities, any prior settlement funds relative to the same injury claim, and the amount of any existing Conditional Payment Liens.

In settling future medical expenses with a claimant who is a Medicare beneficiary but whose total settlement amount is less than the CMS review threshold, the employer or carrier should still obtain an MSA estimate and allocate at least that much consideration for future medical benefits as demonstration of protecting Medicare’s interests.

IV.     More on “protecting Medicare’s interests.”

My impression is that many people confuse the above review threshold criteria with whether an MSA is “required,” but such is apples to oranges. Again, an MSA is never required. But Medicare’s interests have to be taken into account in any settlement involving future medical benefits, so it is erroneous to conclude that “you don’t need an MSA” because it falls below the review threshold criteria; falling below the thresholds only means that CMS will not review it, not that you don’t need to protect Medicare’s interests by having one. The safest way to protect Medicare’s interests is to have an MSA whose funding is based on a professional MSA estimate or allocation.

The latest version of the CMS Reference Guide leaves little doubt on this point. The Guide discusses two examples of cases that do not meet the review thresholds, but allocate money to future medical benefits. It states: “The settling parties must consider Medicare’s future interests even though the case would not be eligible for review. Failure to do so could leave the settling parties subject to future recoveries for payments related to the injury up to the total value of the settlement.” (Ref Guide, §8.1, emphasis added) Since the “settling parties” include both sides to the claim, Medicare thus believes it can recover from the carrier in addition to the claimant and his or attorney. The significance of this is that it leaves the carrier at risk for twice the exposure – payment to the claimant and then reimbursement to Medicare. As stated in 42 CFR 411.24(i)(1): “If Medicare is not reimbursed as required by paragraph (h) of this section, the primary payer must reimburse Medicare even though it has already reimbursed the beneficiary or other party.”

I used to regularly see agreements that said something like this (fortunately not so much anymore): “The plaintiff is not enrolled in Medicare and has no reasonable expectation of being enrolled in Medicare. Thus, Medicare’s interests have been considered and protected.” Again, these are incongruous concerns. Statements that an injured worker does not meet the review thresholds, is not enrolled in or eligible for Medicare, or has no reasonable expectation of becoming enrolled or eligible for Medicare has nothing to do with whether Medicare’s interests are being protected; further, saying that Medicare’s interests have been considered without explaining how that has been done seems to me an empty statement that CMS may more readily disregard.

V.     Effect of CMS review, non-review, approval.

After CMS approves an MSA in a settlement involving an injured worker not yet on Medicare, it will regularly check the National Medicare Enrollment database  to determine when the injured worker becomes enrolled or eligible. It will not monitor the money spent from an MSA until the claimant becomes Medicare-eligible (a beneficiary). Ref Guide §18.0.

If funds are exhausted in an MSA that was approved by CMS, and the funds were appropriately spent, Medicare will pay ongoing medical bills for the work injury that are otherwise covered and reimbursable by Medicare regardless of the amount of care the injured worker continues to require. 42 CFR §411.46(a), Ref Guide §8.0. (“When CMS reviews and approves a proposed WCMSA amount, CMS stands behind that amount.” Ref Guide §4.2)

If funds from a self-administered MSA are used for other than Medicare-allowable medical expenses related to the work injury, Medicare will deny all work injury related claims until the injured worker can demonstrate appropriate use equal to the full amount of the MSA. Ref Guide §17.3.

For a settlement funding future medical care that is not reviewed by CMS (regardless of whether placed in an MSA), Medicare may reject the settlement as not adequately protecting its interests. If Medicare makes that determination, it may refuse to pay for medical treatment until the entire proceeds of the settlement have been exhausted. Ref Guide §3.0, §4.1.4.

(The MSA management company Ametros conducted a study that found over 30,000 claims were denied each year from 2018-2020 because MSA funds were deemed responsible for their payment.)

VI.     Effect of ALJ decision on future medical benefits.

The Reference Guide says:  “…when a state WC judge…approves a WC settlement after a hearing on the merits, Medicare generally will accept the terms of the settlement, unless the settlement does not adequately address Medicare’s interests. Ref Guide, §4.1.4.

The reference to “a settlement after a hearing on the merits” is a bit confusing to me. Perhaps it is referring to a procedure like that used by our neighbors in Tennessee, for example, where, unlike in Kentucky, hearings are conducted over approval of settlements. Perhaps the CMS language suggests that if the ALJ finds certain treatment non-compensable in an Opinion following a “hearing on the merits,” then Medicare will honor that. But as to those partial settlements where the parties ask the ALJ to decide compensability of future medicals, a question arises as to whether the “hearing on the merits” language requires a formal hearing instead of submission on the record before CMS will recognize? My Medicare compliance sources tell me that their experience is that CMS equates a “hearing on the merits” to “zealous” representation and argument by both sides – that the judge cannot appear to be rubber stamping a predetermined decision.

(Speaking of our friends in Tennessee, its judges issued a post on their agency blog that said: “…the Court has determined that we must require CMS approval for closed-med settlements involving employees who meet the CMS review thresholds.” And: “…the Court may require professional administration in some cases where the medical treatment is particularly extensive or complex, or there are questions about the employee’s ability to attest to appropriate exhaustion of the funds to CMS.” (10/20/22)

VII.    Requirements on administration of MSAs – both self-administered and professionally administered.

CMS guidelines on administration of an MSA require:

1)         Funds deposited into an interest-bearing account.

“You must deposit the total WCMSA amount (future medical treatment and future prescription drug treatment) in an interest-bearing account, separate from any other account such as a personal savings or checking account.” Ref Guide §17.2. (The interest is taxable and may be paid from MSA funds.)

2)         Funds to be used only for Medicare covered expenses.

“WCMSA funds may only be used to pay for medical services and prescription drug expenses related to your work injury.” Ref Guide §17.3.

3)         Bills paid according to the appropriate fee schedule (since any MSA       will be based on fee schedule versus full retail rate).

“CMS uses either the WC fee schedule or the full actual charges for its review of a proposed WCMSA based on whichever methodology is used by the individual or entity submitting the proposal….The administrator of the WCMSA (both professional administrators and self-administrators) should make payments from the WCMSA on the same basis.” Ref Guide §10.5.2.

4)         Annual report submitted to CMS.

“Every year, beginning no later than 30 days after the 1-year anniversary of settlement, the administrator must sign and send a statement that payments from the WCMSA account were made for Medicare-covered medical expenses and Medicare-covered drug expenses related to the work-related injury, illness, or disease.” Ref Guide §17.5.

These requirements apply whether the MSA is self-administered or professionally administered; and whether the individual is a Medicare beneficiary or not. Ref Guide §17.4.

An MSA must be “registered” with CMS only if the claimant is already a Medicare beneficiary (or becomes one after the onset of the MSA).

VIII.  Professional administration versus self-administration.

Professional administration is preferred over self-administration because:

1)        It is in the best interest of the injured worker. The other items that follow all relate back to this. Professional administration prevents the injured worker from, unintentionally or not, squandering the funds from a self-administered MSA payout and incurring problems with Medicare.

2)         If an injured worker acknowledges the requirements to place MSA funds in a separate account; use them to pay bills only for Medicare-covered expenses; and submit annual reports and the ultimate depletion report to CMS, then why wouldn’t he or she want someone else to do that at no cost to them? If the injured worker does not intend to abide by the MSA requirements, then the settlement shouldn’t be approved in the first place.

3)         The unsophisticated injured worker attempting to self-administer an MSA will likely face higher costs than if an MSA is professionally administered. When an employer or carrier calculates costs needed to fund an MSA, it uses current costs based on Kentucky’s workers’ compensation fee schedule. A claimant on his or her own is subject to billing by providers at out-of-network, higher retail rates (a “cash pay” patient, with inflation increasing those costs each year), and will exhaust the funds quicker. Suppose an injured worker exhausts a $20,000 MSA sooner than he or she otherwise would have because he or she overpaid the fee schedule by $2,500. In that instance, CMS may determine the $20,000 paid to have been insufficient to protect Medicare’s interests, in turn prompting it not to assume primary payer status until the injured worker pays the next $2,500 in medical bills.

Some companies that offer professional administration market themselves as having associations with certain providers or networks that accomplish savings below the fee schedule rate at which the MSA was calculated. That allows the MSA funds to stretch further for the injured worker, which in turn increases the protection of Medicare’s interests.

4)         Professional administration is inexpensive. From my experience, a carrier is readily willing to pay a nominal fee of around $1,000 to set up professional administration if it settles a claim and closes a file.

5)         The professional administrator somewhat assumes the role of the adjuster or nurse case manager with whom, ideally, the injured worker has had a positive, supportive relationship. The worker is not turned loose with an unfettered sum of money and no continued support system.

(A benefit of an MSA to the injured worker whose relationship with the carrier has been less than ideal is that he or she gets out of ongoing challenges to treatment by way of medical disputes. MSA funds can be used for any treatment as long as related to the injury and covered by Medicare. Ref Guide 3.0. So, for example, the worker does not have to battle the carrier over whether further recommended injections, therapy, or diagnostic studies are reasonable and necessary.)

6)        CMS says self-administration is “subject to the same rules and reporting requirements as any other WCMSA.” Thus, CMS “highly recommends” professional administration, especially in cases where the injured worker continues to take opioids. Ref Guide §17.1. CMS first included this “highly recommended” language in its October 10, 2019, revision to its Reference Guide (version 3.0), and there must be a reason it did that.

7)         When an MSA is submitted to CMS for review, the injured worker is required to sign a Consent to Release form. As of April 1, 2020, the CTR form must “include language indicating that the beneficiary reviewed the submission package and understands the WCMSA intent, submission process, and associated administration. This section of the CTR must include at least the beneficiary’s initials to indicate their validation.” (Ref Guide §10.2). This new requirement would seem to further enable CMS’s ability to seek recourse against the injured worker who does not self-administer his or her MSA by the rules.

8)         Last but not least for the lawyers…professional administration protects attorneys on both sides of a settlement. If the self-administering claimant misappropriates funds or happens to get Medicare to pay for work-related treatment, Medicare’s targets in seeking reimbursement can include the lawyers involved in the settlement.

IX.  Funding of MSAs – lump sum and structured:
        What happens when funds for a given year are depleted during the term of a structured MSA?

When an MSA is designated as a lump-sum “commutation” settlement, Medicare will not make any payments for expenses related to the work injury until all funds within the MSA have been exhausted, including interest earned on the funds in the account. Ref Guide §3.0, §4.1.1.

An MSA can also be structured – where payments are made to the account on a defined schedule to cover expenses projected for future years. The initial deposit (seed money) must equal the first surgical procedure and two years of annual payments. Unused funds in a given year carry forward and are added to the next annual deposit. If funds in a given year are exhausted, Medicare will pay primary for further injury-related medical expenses during that period if the claimant is already a Medicare beneficiary. (Unused funds for a given year include any roll-over amount. Ref Guide §19.3.1.) If the claimant is not a Medicare beneficiary, he or she must pay out-of-pocket for treatment until the MSA is funded again the next year. Ref Guide §5.2; CMS Self-Administration Toolkit for WCMSAs, §11.

X.     Evidence-Based MSAs.

In reviewing an MSA to determine whether Medicare’s interests have been adequately considered, CMS says, “Reviewers use evidence-based rationale for their determinations, taking into account both published guidelines and current peer-reviewed medical literature.” Ref Guide, §9.4.3. However, advocates for employers and insurance carriers argue that CMS does not really apply evidence-based medicine, or does so inaccurately, resulting in higher cost projections than should reasonably be expected. For example, in projecting future cost of prescriptions, CMS bases its allocation on the injured worker’s usage rate over a life expectancy regardless of whether the worker will, or should, continue taking the drug for that long. Perhaps traditional MSAs submitted for CMS review are sometimes overpriced, but that is the result of CMS being motivated to guard against having Medicare prematurely assume the role of primary payer.

Enter a “Non-Submit” product called an Evidence-Based MSA. The projection for future medical costs in an EBMSA is based on information that may include: a retained or consulting physician review; opinions of a retained medical evaluator; communication with a treating physician over ongoing care; or assurances from a physician or patient that certain treatment or prescriptions will cease, be limited, or not be billed to Medicare. An EBMSA cannot be submitted to CMS for approval because CMS will not consider these sources in a review, and, thus, will not approve an MSA based on them. (See “X.4.”, infra)

It cannot be disputed that an EBMSA is an effort to limit, or downgrade, the allocation of dollars into an MSA. Viewed at its worst, an EBMSA seeks to inappropriately reduce the settlement amount by arbitrarily removing otherwise compensable and anticipated costs. In most any instance, the EBMSA will be funded with fewer dollars than would be expected in an allocation for an MSA approved by CMS. From the carrier/defense perspective, that’s a good thing in that a more realistic (i.e., lower cost) projection frees up more money to put in an injured worker’s pocket in settling a claim.

But the EBMSA projection seems to allow a carrier to summarily resolve a lifetime’s worth of medical disputes in its favor. Usually a carrier is willing to pay a premium to rid itself of an ongoing claim for medical expenses. So what benefit is it to the injured worker to concede these potential medical disputes on the front end; have an MSA funded with less money than one reviewed by CMS; and risk a determination by CMS that the EBMSA is inadequate? And if the worker is represented, what risk is his or her lawyer taking by relying on a carrier’s expert in determining the MSA amount, which, again, is not being approved by CMS?

The carrier’s response to that will be that even though the MSA is limited to treatment foreseen by evidence-based medicine, the injured worker is free to spend the funds on whatever work related Medicare-covered treatment he or she wishes. Further, the MSA vendor will contract with the injured worker to indemnify him or her and hold them harmless from any claims made by Medicare if the funds in the EBMSA are depleted (underfunded) or if CMS should find that the MSA had not adequately protected its interests. (The MSA vendor will usually extend separate indemnification agreements for the injured workers’ attorney and a defense attorney, as applicable.)

But what if the vendor’s carrier presents a defense or “slow plays” the injured workers’ claim for indemnification while he or she is dealing with Medicare? Or what if the vendor or carrier is no longer in business, or bankrupt, by the time such a claim is made? An indemnification agreement I reviewed said a condition precedent to the obligation to indemnify was “proper administration of the EBMSA,” so a failure to abide by the rules of self-administration voids that obligation and causes a potentially harsh result (another reason professional administration is preferred). I continue to have concerns about EBMSAs, especially when the settlement involves an unrepresented claimant. The skeptic in me says that the EBMSA is not a legally based solution – grounded in a statute or regulation – to the requirement to protect Medicare’s interests. (I have had a defense firm tell me it refuses to be involved in settlements using an EBMSA.)

Parties wishing to use an EBMSA might see its chances of approval increase if professional administration is used. If the EBMSA is a realistic estimate of future medical costs, and a professional administrator is able to stretch the settlement fund dollars (as discussed in VIII, 3.), then the product becomes more palatable.

This paper has been a work in progress for nearly four years. The fundamentals of the MSA process remain steady, but there has been a substantive change on “non-submits.” (It took me a while to recognize that “non-submit” was synonymous with EBMSAs.) Version 3.5 of the Reference Guide (1/10/22) added a new section, 4.3, addressing the use of “non-CMS-approved products” including EBMSAs. This section startled the MSA world with its pronouncement that “non-submits” would be considered a presumptive effort of cost shifting in contravention 42 CFR 411.46. CMS said it “will” deny payment for medical services in a non-submit up to the amount of the settlement. (Referring back to the discussion at “II” and “III,” if MSAs and CMS review is voluntary, how can CMS say medical payments “will” be denied if an MSA lacks CMS approval? And, remember, you can’t get CMS approval for an MSA that doesn’t meet the review thresholds.) But after a firestorm, version 3.6 of the Reference Guide (3/21/22) softened that language to “may” instead of “will”; and it provided that the parties could still show that “both the initial funding of the MSA was sufficient and utilization of MSA funds was appropriate.” (You can bet that CMS will review an exhausted EBMSA for original sufficiency of funding.)

XI.     Effect of new 780-week limitation on medical expenses on MSA allocation.

Among the changes to KRS Chapter 342 in 2018 was a 780-week limitation on medical benefits for injuries occurring on or after July 14, 2018; previously, an award of medical benefits was for a lifetime. KRS 342.020(3). This new limitation begs the general question of whether Medicare will recognize a state law that abbreviates liability for a primary payer and transfers it to Medicare? And, specific to Kentucky, whether CMS will permit a reduction of an MSA to 780 weeks (or the balance thereof) since KRS 342.020(3) allows an injured worker to request an extension of medical benefits payments beyond 780 weeks?

The Reference Guide states at §9.4.5: “CMS will recognize WC state-specific statutes addressing the limits of future treatment regarding the length or nature of future treatment, provided that the submitter has demonstrated that Medicare’s interests have been adequately protected…Submitters requesting alteration to pricing based upon state-legislated time limits must be able to show by finding from a court of competent jurisdiction, or appropriate state entity as assigned by law, that the specific WCMSA does not meet the state’s list of exemptions to the legislative mandate.”

Thus, the answer to the first general question above appears to be “yes,” Medicare may recognize a state statute that limits the liability of a primary payer; but the answer to the second question specific to Kentucky appears to be “no.” You probably cannot reduce an MSA to the balance of the 780-week award of medical benefits because KRS 342.020(3) provides for the request for an extension of medical benefits. If parties cannot obtain a decision that no exception in the law allows for additional benefits, then CMS will likely take the position that an exception (here, the ability to request an extension) allows for additional benefits and thus require an MSA to be fully funded for the life expectance.

XII.    Non-Medicare covered medical expenses.

Often lost in the negotiation for a buy-out of future medical benefits are non-Medicare covered medical expenses. The carrier’s request for a vendor to quote an allocation for future medical treatment is usually limited to Medicare-covered treatment, while compensable non-Medicare covered treatment has often been reimbursed by the carrier leading up to a settlement. Examples of non-Medicare covered expenses are: certain medications, typically off-label prescriptions; over-the-counter supplies; attendant/non-skilled home care; certain chiropractic treatment; hearing aids; acupuncture; cosmetic surgery; some dental and eye care; mileage; transportation; and home modification.

A settlement involving a waiver of future medical benefits should alert the reviewing ALJ as to whether the claimant’s past medical benefits have included those that are not covered by Medicare, and, if so, how provision is being made for those expenses beyond the money used to fund the MSA.

XIII.  Miscellaneous.

1. In a settlement in which the claimant is represented and has counsel able to negotiate the term, I will respect a provision in an MSA that allows the carrier to capture unused funds at the claimant’s death; however, I typically frown on a reversionary clause if the claimant is unrepresented. If a carrier’s desire to close a file is strong enough to buy-out its obligation for continuing medical benefits, then it should be willing to pay appropriate consideration for that without an expectation of receiving unused funds upon the injured worker’s death. Payments made in these settlements should inure entirely to the claimant, and to his or family if there are unused funds at death.

2. An MSA does not need to be indexed for inflation and may not be discounted to present-day value. CMS Memo 10-15-04, p.

3. If a settlement does not specify past versus future medical expenses, the amount allocated to medical benefits will be considered entirely for future medical expenses once Medicare has recovered any conditional payments it made. This means that Medicare will not pay for work related medical expenses that are otherwise reimbursable under Medicare until the entire settlement is exhausted. Ref Guide §10.5.1.

4. Parties cannot reduce an MSA by waiving certain treatment or agreeing that certain treatment will not be billed in the future. CMS will not recognize settlements that promise not to bill Medicare for certain services in lieu of not including them in an MSA. Ref Guide §15.2.2. (See also EBMSA discussion above.)

5. The protection of Medicare’s interests in settlements funding future medical care has included prescription drug treatment since January 1, 2006. CMS Memo 7/24/06.

6. “If it is necessary for CMS to take legal action to recover from the primary payer, CMS may recover twice the (primary payment amount)…” 42 CFR 411.24.

7. The Reference Guide is updated frequently. CMS is now on version 3.7. I do not go back through this paper and change the references unless there has been a substantive change. When I started this project in 2019, CMS was on version 1.9.

8. This paper is long enough, but I thought I would acknowledge the lack of discussion of the “Zero Dollar MSA.” These are a frequent topic of discussion with the MSA world. Essentially, if a carrier has paid nothing in a denied claim or a treating doctor states the injury has resolved and no future treatment is expected, then CMS may approve an unfunded MSA – the purpose of which is to allow a carrier to settle a claim without dealing with Medicare concerns. As much as some may deal with them, they just don’t come up very often in Kentucky.

9. When I got into this project I found myself contacting two Medicare compliance attorneys I had heard speak so well on these issues at national conferences. My thanks to Rafael Gonzalez of Tampa, Florida, and Christine Hummel of Ferdinand, Indiana, for being generous with their time to me. Over the last few years I have invited them to speak at various Kentucky conferences and both were very well received.

XIV.  Preferred attachments to a Form 110 Agreement as to Compensation.

An agreement involving an MSA should include the following language or attachments:

1. For a self-administered MSA where an allocation has been done, the report documenting the projected amount of future medical expenses. If an allocation has not been done, the best practice is not just to say “X” dollars are being provided for future medical care, but to explain the basis for that amount in the agreement. If done even in the most general terms, that will better support a later challenge to whether Medicare’s interests were adequately considered at the time of settlement.

2. For the injured worker’s reference in self-administering an MSA:

a) the instructional form titled “Administering Your Lump Sum Workers’ Compensation Medicare Set-Aside Arrangement” or “Administering your Structured Workers’ Compensation Medicare Set-Aside Arrangement.” (attached)

b) the attestation form titled “Workers’ Compensation Medicare Set-Aside Arrangement – Account Expenditure for Lump Sum Account.” (attached)

3. Language on who is responsible for reimbursing Medicare for any conditional payments made by Medicare after settlement.

4. Language that an MSA cannot be charged more than the fee schedule. This is more relevant to an agreement being reviewed by CMS, but the added language can only assist an unrepresented claimant who is self-administering an MSA in dealing with billing matters with his or her provider.

5. An agreement with a professionally administered MSA should include an allocation report and the agreement with the administrator. (That agreement does not need to be executed before the Form 110 is approved.)

By Steven A. Minicucci
Administrative/Association Judge
Rhode Island Workers’ Compensation Court

 

The impact of the fire was far-reaching including the horrific deaths, debilitating, and disfiguring injuries, the political and criminal fallout in diminutive Rhode Island which was likened in court to the state’s own version of a 9/11 tragedy. In the aftermath of the fire, Rhode Island tightened its lax fire codes, removed grandfather laws for old buildings, required sprinklers in most all places of public assembly, and reformed the State Fire Marshall’s office. Beyond criminal prosecution of the club’s owners and the band’s manager, the only other legal accountability was found through the prosecution and eventual settlement of civil suits against more than ninety defendants alleged to have varying degrees of liability in causing the calamity. Untreated packing foam misapplied to walls as soundproofing and other foam wall treatments lacking adequate warnings anchored the civil litigation. However, a negligently installed fire alarm which failed to deactivate the air handling system or silence the sound system as it blasted loud music over the alarm sound as intended, the aforementioned lack of sprinklers, faulty building inspections, overcrowding, questionable government and insurance inspections, and a band lighting fireworks off in a confined space were also all alleged to have contributed to the mayhem. Novel promoter liability claims were also advanced with some success.

From the standpoint of workers’ compensation considerations, the two owners of the Station Nightclub business, who are brothers, had failed to obtain legally required workers’ compensation insurance to cover their employees. Ironically, one of the brothers was a local news reporter who was present in his own club on that fateful night filming a news piece on nightclub safety in the wake of a nightclub stampede just a month earlier in Chicago. So, while the brothers were fined for not possessing the required workers’ compensation insurance, they filed for bankruptcy and none of the proceeds of the fines under bankruptcy law were legally permitted to be used to compensate the victim-employees. Instead, they were left without any avenue to collect workers’ compensation death benefits or scarring compensation otherwise available to employees under the workers’ compensation act in Rhode Island.

The state trial lawyer association had tried for years without success to convince lawmakers to create an uninsured fund to provide needed compensation to injured workers who were victimized by unscrupulous employers who tried to sneak by in business without carrying required workers’ compensation coverage. Such action is presumably undertaken by scofflaws hoping to reduce their overhead and render their businesses more competitive or worse, more profitable. This type of unlawful business practice and in some cases coupled with intentional misclassification of employees to avoid insurance, was felt to epitomize the adage “profits over people” by those advocating for establishment of an uninsured employer fund. Uninsured funds in other states cover injured employees with no other recourse against uninsured employers such as the Station Nightclub owners were in this case.

Unfortunately, it took this very public and disastrous fire, littered with senseless death and injury which altered the lives of so many, to silence the previously unyielding opposition. Opponents had for years been defeating the legislation needed to provide some measure of compensation to victim-employees who had no way to pay bills or bury loved ones when employers thumbed their noses at the law requiring them to carry workers’ compensation insurance. Fueled by the wave of reforms introduced in the wake of the Station Nightclub fire, coupled with settlement of the civil suits stemming from the tragedy which freed state and local government to act, in 2007 Rhode Island passed R.I.G.L. § 28-53-1 et al. the Rhode Island Uninsured Protection Fund (UPF). While the funding needed to capitalize this Fund took several additional years to accumulate, the UPF was finally passed by the legislature. The long-perceived short-coming in Rhode Island’s workers’ compensation system was now addressed.

The UPF in Rhode Island is a system that does not provide full compensation benefits for victims who qualify, but it provides something for these workers to feed families and pay bills. Benefits are limited and due to the Medicare Set-Aside concerns of potentially needing to fund a huge set-aside to account for Medicare’s interests potentially exhausting the fund.  Medical expenses are not directly compensated. There is no specific compensation for disfigurement or loss of function provided and each claim is capped with payments not to exceed $50,000 in any one case. Hopefully, as the Fund becomes further capitalized the benefits available from the UPF may be expanded. The thinking after the fire was something for future victims of uninsured employers would be better than nothing.

Any payments made by the UPF are vehemently pursued by the Fund for subrogation reimbursement from the uninsured employer. While this UPF did not help the Station Nightclub employees injured in the fire, it is clearly their legacy and their suffering which helped to provide this remedy for any such future victims in Rhode Island. While this fact provides no true solace to the victims or their loved ones, nor eases their terrible grief, it is certainly one of the small positives to have been born out of this horrendous tragedy.

As Rhode Island reflects upon the passage of twenty years since the awful Station Night Club Fire It is also worth noting that the Rhode Island Department of Labor and Training along with the forces of organized labor, the judiciary and the State Attorney General have since formed a misclassification task force which works tirelessly to address every perceivable loophole and plug any breeches in the legal damn to ensure that all employers who are required to carry workers’ compensation insurance do indeed have it or they face work stoppages, fines, and in some cases criminal prosecution. Small positives born of tragedy.

By: Hon. Steven A. Minicucci, Administrative/Associate Judge R.I. Workers’ Compensation Court. At the time of the Station Nightclub Fire the author was a practicing lawyer who represented several decedents and victims of the Fire in the civil lawsuits as a member of the Plaintiff’s Steering Committee. Also, He was the President of the R.I. Trial Lawyers Association who was involved with a legion of many who worked together to win passage of the UPF in Rhode Island. The author was named to the Bench in R.I. in 2017.