Tag Archives: 10th Amendment

Is it better that SCOTUS punted on air ambulance cases

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The Supreme Court refused to hear an appeal from a Texas Supreme Court decision that allowed the State of Texas to regulate air ambulance charges in workers’ compensation cases.

The Supreme Court’s refusal to hear the case leaves in place a patchwork of state and federal court opinions about whether the Federal Aviation Act pre-empts state workers compensation laws that limit medical expenses for air ambulances.

Air ambulances and federal pre-emption is a dry and often esoteric, maybe even boring topic. But as Jon Gelman pointed out in his post on the decision, the right to regulate medical expense in workers’ compensation case helps states manage the cost of workers’ compensation. As I’ve pointed out at near ad nauseam, workers’ compensation laws are state-based laws. So, that’s why the air ambulance pre-emption issue matters to workers compensation.

So, what do I think of the Supreme Court’s decision to punt on the issue? Bluntly, I’m kind of relieved. I base my feelings on my big picture views of the Supreme Court and my very narrow interests in Nebraska workers compensation laws.

Do you really want Amy Coney Barrett and friends making decisions about workers comp.?

Well, do you?

From an academic perspective, the Texas Supreme Court decision on workers compensation and air ambulance billing is interesting. It’s really a discussion about the nature of workers’ compensation. Is it primarily an insurance program or is it primarily a law that regulates the relationship between employee and employer? My fear was that the current Supreme Court could pick up on any of the threads within the Texas case and make the law worse for injured workers.

Workers compensation as a law regulating the relationship between labor and management

So, if workers compensation is law that regulates the workplace, the dissent in the Texas decision held that air ambulances charges would be pre-empted. That would be a bad outcome for workers on air ambulance charges. It could also open the door for pre-emption on other issues to the detriment of employees.

Workers compensation as a law regulating insurance

The concurring opinion in the Texas held that their state’s regulation of air ambulance charges in workers’ compensation cases was not pre-empted because workers compensation is a law regulating insurance. Under the federal McCarran-Ferguson Act those laws are state laws and not subject to pre-emption. At least two trial Judges in the Nebraska Workers Compensation Court take this approach. Since the Supreme Court hasn’t weighed in on the issue, I can take this approach on air ambulance charges for the benefit of my clients in Nebraska.

But the Texas court also held that air ambulance charges weren’t pre-empted based on an originalist view of federalism. The Texas opinion starts out about states retaining some sovereignty when entering into the Union. In my view this language seems real overwrought. If I was a law student reading that opinion today, I might put a note like “Sir, this is a Wendy’s” by that passage.

Some plaintiff’s lawyers will go down the state’s rights rabbit hole. But I don’t like the state’s rights approach because it gives states the rights to implement lousy workers compensation laws. Texas is a model for how the state’s rights approach fails workers.

McCarrran-Ferguson: State’s rights lite?

McCarran-Ferguson is a more pragmatic argument against workers compensation pre-emption. But McCarran Ferguson is based on some dubious legal fiction. McCarran-Ferguson was passed to more or less repeal the Southeastern Underwriters case. That case held that insurance was interstate commerce.

Now the notion that insurance is interstate commerce would seem obvious to most people, but insurance wasn’t held to be commerce during much of the Lochner era. The Roberts court also seemed to question whether insurance was interstate commerce when they upheld the Affordable Care Act in 2012.

My other problem with McCarran-Ferguson is that it limits how we think about workers’ compensation.  It locks judges and lawyers into adopting a legal fiction in order to give workers a fair outcome in workers compensation cases regarding air ambulance charges and other issues where federal laws could undercut recovery under state workers’ compensation laws.

McCarran-Ferguson also cements “states rights” thinking about workers compensation. Such thinking precludes the possibility of federal intervention for the benefit of employees that helped workers in the 1970s and 1980s. Originalist thinking and the Lochner era thinking behind McCarran Ferguson by plaintiff’s attorneys also prevents thinking how to make much needed reforms to our social insurance system in general. 

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Arguments against COVID safety standards in meatpacking sound same in court and in the Unicameral

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Nebraska legislators narrowly advanced legislation, that if enacted, would mandate basic COVID-19 safety measures at meatpacking plants.

State Senator Tony Vargas of Omaha introduced the bill to protect meatpacking workers. According to Vargas, 7382 meatpacking workers contracted COVID-19, 256 were hospitalized and 23 died due to the COVID-19 pandemic.

I support this legislation. Early on in the pandemic, I wrote about why I thought workers’ compensation laws weren’t suited to help workers effected by the pandemic. The bill includes requirements about reporting COVID-19 exposure which would aide in prosecuting workers’ compensation cases related to COVID-19.

But, the bill does not include a presumption of workers compensation coverage for COVID-19 exposure. One would think that relatively mild legislation would face little opposition. But that assumption would be wrong.

Somewhat unsurprisingly the arguments used by opponents of COVID-19 safety measure opponents mirrored arguments made by packinghouses in COVID-related litigation. Some legislators argued that the state should not regulate workplace safety in meatpacking houses because that was the job of the federal government. In short, the state was pre-empted from regulating safety conditions in meatpacking plants.

Tyson Foods made similar arguments about federal preemption in their defense to an Iowa state law case involving a lawsuit against Tyson for having their managers make bets on COVID-19 death tolls in an Iowa plant.

I think the preemption argument is specious because states clearly have the right under the 10th Amendment to make laws about health and safety. That’s the constitutional basis for workers’ compensation laws.

On the flip side, the basis for the federal government to regulate meatpacking stems from the interstate commerce clause. Meatpacking is one of many businesses in Nebraska engaged in interstate commerce. Under the theory advanced by opponents of safeguards for meatpacking workers, the state wouldn’t have the right to regulate those industries either.

Federal and state laws conflict all the time in matters of workplace safety and the effects of workplace injury. Meatpacking plants in Nebraska are largely operated by large multi-national firms with armies of lawyers who comply with all sorts of rules and regulations in different states and countries.  

In my view, the packing plants exploited a gap in workers compensation laws to largely avoid paying COVID-19 benefits under workers’ compensation. The standards proposed by Senator Vargas are reasonable, constitutional and should have passed with little debate last year when they were originally proposed.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Unless you have Marine One, Air Ambulances are a pricey proposition

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Last Friday President Trump travelled to Walter Reed Hospital in the Presidential helicopter, Marine One, to seek treatment for COVID-19. The President has use of a helicopter, most of us don’t. Sometimes air ambulances are necessary, particularly in remote rural areas, to transport individuals with severe injuries or illnesses.

But if you read this blog, you know that air ambulance bills are often  incredibly expensive — and even worse not covered by insurance.

So why are air ambulance charges often not covered by insurance?

Preemption: Federal rock breaks state scissors

Air ambulances are regulated by the Federal Aviation Administration. The authority for this regulation is the so-called interstate commerce clause. Insurance, whether health insurance or workers compensation, is governed by state law because Congress ruled that insurance regulation is the purview of state law. Workers’ compensation laws are state laws that are constitutionally valid due to a state’s general police powers under the 10th Amendment.

So when accident victims try to pay for an air ambulance charge with health insurance or through workers’ compensation insurance, air ambulance providers argue they aren’t bound by state laws regulating insurance since they are regulated by the federal government.

This argument is called preemption. Preemption means that if state and federal laws conflict on a subject that federal law governs. In other words, the federal rock crushes the state scissors. A majority of courts side with  the air ambulance companies in holding that federal law regulating air ambulances pre-empts states from using their laws on insurance to regulate air ambulance charges.

In practical terms, injury cases involving air ambulances are more difficult to resolve. Fortunately, air ambulances aren’t covered by Nebraska’s lien statute which gives doctors and other providers a right to recover unpaid bills out of a personal injury settlement. This can give attorneys some leverage over these providers

What would the Founding Fathers think about air ambulances?

Before he went to the hospital, the President nominated 7th Circuit Court of Appeals Judge Amy Coney Barrett to replace Ruth Bader Ginsburg on the Supreme Court. Barrett’s views on abortion and other hot button social issues have drawn attention. But the bulk of cases decided by federal courts tend to be esoteric and obscure issues like air ambulance charges that stem from tensions within the United States Constitution.

I don’t know if Barrett has ruled on an air ambulance case. Barrett is known as an “originalist” or someone who looks at the intentions of the Founding Fathers in interpreting the Constitution.

But in my mind air ambulance cases are one example of the limits of the originalist approach. Passenger air travel post-dates the Constitution by about 130 years. What would the Founding Fathers know about air ambulances? Anyone who brings an originalist approach to deciding an issue like air ambulance charges is just dressing up their policy preferences in late 18th century garb.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Immunity by executive order probably isn’t constitutional, but beware of federal immunity for COVID-19 in workers’ compensation

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The Supreme Court held that Harry Truman overstepped his authority under the Defense Production Act in Youngstown Sheet and Tube

Last week, President Donald Trump signed an executive order shielding meatpacking firms like Tyson from legal liability over COVID-19. Trump’s order was based on the Defense Production Act (DPA).

Seeing the forest from the trees

From a legal perspective, the order is unenforceable. But getting bogged down in the legal weeds misses an important point about the order. The President of the United States has stated that packinghouses are immune from liability under the law for COVID-19 exposure. Regardless of the legal technicalities, that statement will likely discourage workers from filing workers’ compensation claims against meatpackers. I also fear managers of those plants will use the order as an excuse to shift the cost of COVID-19 exposures onto enhanced unemployment or short-term disability policies if workers file those claims.

Executive orders and Youngstown Sheet and Tube

Federal courts have held that the Defense Production Act does not immunize corporations from tort claims. Furthermore, in order to invoke the Defense Production Act, it would appear a company needs to be performing an actual government contract. The DPA fails to shield companies that are just producing their product for the private market.

But even if the DPA applies to meatpackers during the COVID-19 pandemic, the President has limited powers under the DPA. In 1952, President Harry Truman tried to use the DPA to force steel production during the Korean War. In Youngstown Sheet and Tube v. Sawyer, the Supreme Court held that since Congress had not specifically authorized such an order that Truman’s order was unconstitutional. Cheap meat during a pandemic is hardly the national security crisis that a shortage of steel during a major war.

Legally, this executive order immunizing packinghouses from COVID-19 claims should be filed in a recycling can. But corporate America is already planning to immunize itself from litigation from COVID-19 in a way that could be enforceable. I also believe these efforts will be aimed at workers’ compensation.

Federal legislation and COVID-19 immunity

The legal problems with Trump’s order on immunizing meatpacking plants under the DPA is the lack of Congressional authority. However, the Senate is proposing legislation that would prevent consumers and employees from suing corporations for exposure to COVID-19

Opponents of this legislation, point out, like I have earlier, that suits against businesses for COVID-19 are hard to prove. Opponents of the legislation also argue like I have earlier, that workers’ compensation already limits the liability of corporations for COVID-19 exposure from their employees.

My guess is that many readers of this blog possess some expertise in the workers’ compensation and workplace law general. I can imagine those readers saying something a long the lines of “Even if McConnell’s federal tort reform plan gets past Nancy Pelosi, there is no way it would apply to workers’ compensation. Workers’ compensation is a state issue.”

I believe this argument amounts to wishful thinking.

The 10th Amendment and workers’ compensation

Most workers compensation lawyers would argue that that two propositions would prevent Congress from giving federal immunity to employers under state workers’ compensation laws for COVID-19 exposure. One, workers’ compensation laws are enacted under 10th Amendment police powers. Workers’ compensation is also a law regulating insurance. State law generally governs insurance under the McCarran-Ferguson Act.

But federal and state courts have questioned the applicability of state workers’ compensation laws in regulating air ambulance charges. In technical legal jargon, state workers’ compensation laws have been mostly preempted by federal law on air ambulance charges because regulation of air ambulances is a matter of federal law. I believe the air ambulance charge cases could persuade courts that federal immunity for COVID-19 litigation would apply to workers’ compensation cases.

The 10th Amendment and state quarantine orders

The 10th Amendment is also the constitutional authority state governors and local officials rely upon for stay at home orders. President Trump has attacked some Governors for invoking that authority to impose quarantine or shelter in place order.

But more importantly, Attorney General William Barr has stated the Department of Justice will question state laws related to COVID-19 that unduly inhibit national commerce. Barr seems to be reviving the concept of the “dormant commerce clause”. Federal courts used the dormant commerce clause to overturn state laws regulating the workplace in the Lochner era.

I believe corporate America and their political allies will use federal legislation to undercut state workers’ compensation laws. Advocates fro injured workers should stay vigilant during this crisis.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Air ambulance charges continue to vex

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Concerns about air ambulance charges have migrated from the tiny niche of workers’ compensation blogs to national publications such as the Los Angeles Times.

Media outlets featured coverage of families were stuck with hefty medical bills when health insurance failed to come anywhere near paying the cost of air ambulance charges leaving consumers with charges approaching $50,000.

Air ambulances are exploiting a loophole in insurance regulation. Insurance, including health insurance and workers’ compensation, is regulated by states. But air ambulances are regulated by the Federal Aviation Administration. Air ambulance companies have been mostly successful in persuading courts that since they are regulated by the federal government, state insurance laws should be pre-empted and not applicable to them when it comes to their charges.

Many of the challenges to applicability to state laws in air ambulance charges have come from workers’ compensation cases. Workers compensation laws are state laws because the federal government had very limited power to regulate the workplace when workers’ compensation laws were enacted early last century.

Back in January I wrote about a new federal regulation that might allow some regulation of air ambulance charges. I still believe that the fact there is now some regulatory guidance on air ambulance charges may strengthen the case on preemption. The best fix to air ambulance charges may be federal legislation.

Nebraska recently enacted legislation that allows injured workers to delay the collection of unpaid medical bills that are part of a workers’ compensation case. I would imagine air ambulance companies will attempt to use preemption arguments to blunt the effects of that law in workers’ compensation cases.

Air ambulance charges are a subject of high interest to lawyers in Nebraska and other rural states. Injury victims in rural areas often require air transportation for emergency medical conditions. Air ambulance charges are often complicate the resolution of workers’ compensation and personal injury cases

Federal preemption of air ambulance charges adds other insults to injury to rural residents and rural states. Air ambulance providers base their preemption arguments on the same law that deregulated commercial air travel. Airline deregulation greatly reduced commercial air travel in rural areas to the detriment of economic development and quality of life. So the same law that largely took away commercial air service from rural areas serves to soak rural residents who suffer serious injuries and illnesses.

If nothing else maybe air ambulance carriers should be subsidized through the Essential Air Service program so that their services are not unduly expensive to rural residents.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Federal opioid limitations: Good intentions, bad outcomes

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Senate Republicans and Democrats, including Presidential candidate Kirsten Gillibrand, have introduced legislation that would limit opioid prescriptions to a set number of days and limit refills. In my view such legislation would negatively impact people who were injured on the job.

I mostly agree with analysis of the legislation that was recently published in Rewire. One size fits all solutions don’t account for the needs of patients with chronic pain. Recently authors of the Centers for Disease Control guidelines for opioid prescriptions have stated that those guidelines have been misused to arbitrarily limit opioid prescriptions for pain management.

As a practical matter,  in my experience prescriptions for opioids are already severely limited for injured workers. Statutory limits on opioids are a good excuse for insurers and self-insureds to wash their hands of future medical care obligations under workers compensation.

Opiod prescription limitations have other effects. Pain doctors who don’t prescribe opioids have more timeh to perfrom procedures. Procedures are more profitable for doctors and increase cost. Primarry care dcotors are often reluctant to prescribe opiods which puts more pressure on pain management doctors. 

There are alternatives to opioids for pain managemen. Stem cell therapy has shown promise in treating pain. But insurers are reluctant to approve those options as that could increase costs for them and leave medical claims under workers’ compensation open.

I believe that opioid prescription monitoring is a better solution to fighting addiction than prescription limits. Those systems can flag potential problem users and get them help. In the case of someone hurt on the job who develops an addiction to pain medication, treatment for that addiction could be covered by workers compensation.

Massachusetts  also developed what amounts to a drug court for opioids within their workers’ compensation court. Problem solving courts, like drug courts, are being increasingly used to help those with substance use issues in the criminal justice system. Massachusetts has adopted the idea in an administrative setting. Federal limits on opioid prescriptions would run counter to innovative programs put in place at a state and local level.

Workers compensation laws developed in the early 20th century when workplace safety laws could only be constitutionally enacted through state police powers under the 10th Amendment. Constitutional law evolved changed during the New Deal era which gave Congress broader regulatory powers over workplace safety and the economy in general.

As a result of the broadening of federal regulatory powers, federal laws limiting opioid prescriptions would likely be constitutional even if they interfered with innovative state programs like Massachusetts workers’ compensation opioid court. While the federal government seems to feel compelled to undercut state workers compensation laws to the detriment of workers, the federal government has given up on oversight of state workers compensation laws that could benefit workers.

The United States Department of Labor monitored state workers compensation laws as result of recommendations from the National Commission on State Workers Compensation Laws. The Commission set up 18 standards for state laws. The DOL stopped overseeing state workers compensation laws in 2004.

In 2015 several Senators and Congressional members, including then and current Presidential candidate, Vermont Senator Bernie Sanders, wrote to the Secretary of Labor about reinstating federal oversight of state workers compensation laws. Reporting by Pro Publica highlighted the shortcomings of state workers’ compensation laws The Department of Labor has made no progress on federal oversight of state workers’ compensation laws since then.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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