civil procedure Archives - Workers' Compensation Watch

Workers’ compensation benefits are described as temporary and permanent disability benefits in Nebraska. When many people hear the word disability they think or say “ I don’t want/need permanent disability, I can work.”

I understand the sentiment, but I think non-lawyers confuse Social Security Disability Insurance (SSDI) benefits with workers’ compensation disability benefits.

Broadly defined, disability means how a medical condition or injury impacts someone’s ability to earn wages. There are many differences between the workers’ compensation disability and social security disability, but so-called “non-scheduled” workers’ compensation benefits and SSDI benefits are both paid based on how an injury impacts your ability to earn a living. In both types of claims judges will rely on vocational counselors as experts in determining the extent of a person’s disability

But a recent United States Supreme Court decision, Biestek v. Berryhill, focused on two key differences between workers’ compensation and social security disability when it comes to evaluating the testimony of a vocational counselor — the standard used to determine disability and the procedures you can use to prove disability. The narrow issue in Biestek was the availability of jobs to the claimant within his work restrictions. I hinted at some of those differences in a post I wrote about Biestek, that you can read here. But here is some further explanation about the differences between disability for the sake of workers’ compensation and social security.

In short, it is easier to discover information about the availability of work in a Nebraska workers’ compensation claim than it is an SSDI claim. Injured workers’ also have more ways to investigate the availability of jobs in a Nebraska workers’ compensation claim than they do in a SSDI claim.

SSDI v. Workers’ Compensation: National vs. Local labor market

In order to obtain SSDI, there must be a finding that a claimant can not find work in the national economy. From reading the Biestek case, it’s fairly clear that the availability of jobs within the national economy is somewhat of a mystery based on spotty public information.

In contrast, in a non-scheduled injury in Nebraska, disability is determined first by the hub community, usually where the employee lives, and the available jobs within that community. One of the main points of contention in this type of litigation is what constitutes a reasonable commute. The questions of the cost of the commute in relation to expected wages and the injured workers’ ability to tolerate the commute are usually the most pertinent issues.

Attorneys for injured workers generally try to limit the size of a labor market for their clients as appropriate. The smaller the labor market, in general the easier it is to see the actual availability of jobs from public sources like online ads and even information from government agencies such as the Nebraska Department of Labor. This information makes it easier to check whether a vocational counselor is basing their opinion on accurate information.

Additionally, an attorney for an injured worker can even often get information about jobs available within the plant or worksite where they were hurt. Often times publicly available sources will only have one listing for large employers. Particularly in small towns in Nebraska, a large meatpacker might be the largest employer in town. These employers will sometimes attempt to argue that the availability of jobs within their plaint is irrelevant in a workers’ compensation case because they can accommodate most any restrictions. At least during the investigation of a case, judges generally don’t find that argument persuasive. As a result an injured worker can find out what jobs they could do within a large manufacturing or food processing plant

SSDI v. Workers’ Compensation: Differences in procedure. Part of the reason that it is easier to probe the basis for an opinion by a vocational counselor in a Nebraska workers’ compensation court than in an SSDI hearing is that rules of civil procedure apply in the Nebraska Workers’ Compensation Court (See NWCC Rule 4). The rules of civil procedure allow a party to do investigation or discovery into the basis for an expert opinion. In Biestek, the Supreme Court basically stated that the decision would have turned out differently if the rules of civil procedure applied in social security proceedings.

In Biestek, the vocational counselor refused to turn over relevant information based on concerns about confidentiality and the Supreme Court held that was permissible. Because the rules of civil procedure apply in the Nebraska Workers’ Compensation Court, an employee is generally free to obtain information that is relevant or could be relevant to their case. (See Rule 6-326(a)(1))

In Biestek v. Berryhill the Supreme Court upheld the partial denial of Social Security Disability Insurance (SSDI) benefits to a claimant based on the opinion of a vocational counselor that the employee could find work in the national economy. The Supreme Court upheld the denial of benefits despite the fact the vocational counselor would not disclose the data that supported her opinion and the ALJ refused claimant’s request for the counselor to reveal the data that formed her opinion.

What interested me in the case, in addition to the vocational rehabilitation issue, was the dissent authored by Justice Gorsuch that was joined by Justice Ginsburg. Viscerally I liked the powerful language of the Gorsuch dissent in a case where I disagreed with the result. After all in a SSDI case the government has the burden to prove the availability of work once a claimant proves impairment. I can’t imagine not being able not being able to evaluate the foundation an adverse opinion. (Particularly an opinion that concluded there was low-skill, light duty manufacturing work available during the Great Recession of the late 2000s/early 2010s)

But ultimately the majority relied on the very deferential “substantial evidence” standard in upholding the denial of benefits. The more I think about the case, I think Justice Sotomayor’s separate dissent was better reasoned, if more nuanced and less emotionally resonant than Gorsuch’s dissent. Nonetheless, I think there are some important takeaways from Biestek.

1. The war on SSDI continues — The Biestek decision indicates that appellate courts will be even more reluctant to reverse denials of benefits. The Biestek decision comes on the heels of anti-applicant legislation and administrative rule changes, rooted in elite consensus against SSDI, that began in the late Obama administration and have accelerated in the Trump administration.

The extreme deference to ALJs could be troublesome in the wake of the Lucia v. SEC decision. In that decision the Supreme Court held it was unconstitutional under the appointments clause to hire ALJs as civil service employees rather than have them appointed by the exectuvie branch. In the wake of the Lucia decision, the Trump administration has decided to change how ALJs are appointed. This has raised concerns that ALJs will be politicized and biased against applicants. The Biestek decision could give politicized ALJs a greenlight to deny benefits without fear of reversal.

2. There are some advantages for plaintiffs in proceedings governed by the rules of civil procedure. One advantage of administrative type hearings like SSDI are relaxed rules of evidence and procedure that can make it less costly to pursue a claim. But since the rules of civil procedure don’t apply in SSDI, an applicant can be denied benefits on evidence that wouldn’t pass muster in a civil proceeding.

Thankfully in Nebraska workers compensation, the rules of civil procedure apply (See NWCC Rule 4) and a plaintiff is free to investigate in detali the basis for an opinion made by a vocational counselor.

3. Confidentiality has run amuck in litigation — In Biestek, the ALJ agreed that a vocational counselor could claim confidentiality as a legitimate reason not to disclose the basis for their conclusion that the plaintiff could work. In that regard, Biestek is consistent with a push by corporate defendants to keep court papers and proceedings confidential. I recommend a recent article by Reuters about how confidentiality n litigation helped exacerbate the opioid crisis. I think corporate defendants abuse claims of confidentiality in the litigation process. The Biestek decision seems to implicitly approve these practrices

4. Biestek could be a good summary judgment case for plaintiffs — The Gorsuch dissent drew parallels between the substantial evidence standard used in administrative proceedings and the substantial evidence standard in summary judgment. But reading between the lines it seems the majority in Biestek believes the substantial evidence standard is a more relaxed evidentiary standard than is believed by Justice Gorsuch.

One study shows that rougly 90 percent of employment law cases are dismissed on summary judgement. Clarification from the Supreme Court that substantial evidence is a relatively relaxed evidentiary standard, could make federal judges less likely to grant summary judgment motions.

Workers' Compensation Watch

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