Wednesday, November 26, 2014

Marriage, the Law and Workers' Compensation

The Florida workers' compensation statute provides benefits for death in 440.16, F.S. Most workers' compensation programs have some form of death benefits. As you will notice in studying workers' compensation, the provisions of the various states' codes and statutes have similarities, but also distinctions. This is consistent with the structure of our Federalist American system, where there will generally be variety among the states' laws. 

So, in workers' compensation, we see a variety of statutory distinctions. In the October 2014 Lex and Verum (p.23), I recently outlined some of these gleaned through discussions and presentations at the NAWCJ/IAIABC Judicial program in Austin last September. The program was part of the IAIABC celebration of their 100th annual convention. That is an interesting side-note, workers' compensation has been part of the American legalscape for just over 100 years. 


Florida's workers' compensation law is not quite that old. Florida was not among the first states to enact workers' compensation. One of the best discussions I have seen of the entire history of workers' comp is on the Florida Division of Workers' Compensation's website. Florida got into the workers' compensation business in 1935, so while other states will be celebrating their 100th year anniversaries in the next few years, Florida is about 21 years away. I hope you are around for it, and in the same breath I hope I am not. 


Fortunately, death benefits are not prevalent. The 2013 OJCC Annual Report provides an overview (p.9) of the most plead workers' comp disputes, and death benefits is not on the list. Workplace deaths do happen, tragically, but fortunately they are not as common as other work accident outcomes. According to the Occupational Safety and Health Administration (OSHA), 4,405 occupational deaths occurred in 2013 (this is preliminary data, subject to revisions). 

That may sound like a large number, but that is nationwide over 52 weeks. This is less than 90 per state for 2013, and about 1.7 deaths per week per state on average. Still too many, but it is encouraging that the OSHA chart memorializes that the 2013 figure is the lowest since 1992. Too many, but the volume is decreasing. The OSHA report details causes. One example is that 40% of these are from transportation related causes. Another is that "A disproportionate share of fatal work injuries involved men."

Surprisingly, "Homicides were a much higher proportion of fatal work injuries to women than to men." The report says that 22% of women's workplace fatalities were homicides, compared to 8% of men's. It is frankly troubling that either of these homicide figures is so high. It is also curious that homicide is so disproportionately affecting women in the workplace. 

Recent news brings workplace homicide to the fore. No, not the recent beheading in Oklahoma, though that was both tragic and interesting. Bob Wilson wrote an interesting piece on that. However, the homicide I am referring to happened in Alaska, several years ago, and may therefore not have come you your attention. 

According to KLDG Radio, Kerry Fadely and Deborah Harris worked together at the Millenium Hotel in Anchorage, Alaska. They were also domestic partners. In 2011 a former employee of the hotel shot and killed Ms. Fadely, and Ms. Harris sought workers' compensation death benefits. The two had been partners for about ten years. The Human Resource page of BLR.com provides more details on the history and decision of the case.

In short, the Alaska Workers' Compensation Commission affirmed the trial decision that no compensation was due. Their affirmance was founded on Alaska not recognizing "same sex marriage." The matter proceeded to the Alaska Supreme Court, which reversed the decision last summer, according to Reuters. The full decision in Harris v. Millennium Hotel is here


We have a structured system in America, defined and constrained by the United States Constitution. Because we have this Federalist system, rights and structure are further defined in each of the states' respective constitutions also. 


It is important to remember that we have recognized that rights are possessed not by some grant of a beneficent government, but because we exist. In the Declaration of Independence, our rights are described as "inalienable" and we are  "endowed" with them by our "creator." Rene Descartes is credited with the famous "I think, therefore I am." In like logic, the United States recognizes that you are, therefore you have rights, and that many are inalienable (meaning "impossible to take away or give up," according to Webster's). 


Asked to determine the applicability of the protection of those rights, the U.S. Supreme Court in our early history concluded that the rights recognized in the first ten amendments to the Constitution, the "Bill of Rights," only constrained the Federal government, not the states. In time, the Court's view evolved and it concluded that the states were also precluded from infringing those rights. The Court concluded this by sequentially applying the protections of the Bill of Rights in specific cases to constrain the states, and the Fourteenth Amendment played a critical role in that "incorporation" of recognition of the inalienable rights of people. 


Reuters reports that the court "ruled that utilizing a narrow definition of a widow to exclude same-sex partners violates the surviving partner's right to equal protection under the law.'" The equal protection clause is in the Fourteenth Amendment to the U.S. Constitution (precluding discriminatory action by the states). Though the phrase "equal protection" is not in the Fifth Amendment, that provision has been interpreted as providing the same equal protection against actions of the Federal government.


On this precedent and "equal protection" predicate, the question of workers' compensation death benefits across America may be tied to the broader questions of legality of state definitions of marriage. The Washington Post noted recently that in the Supreme Court's 2014-15 term, same-gender or same-sex marriage "loom(ed) large." It quoted University of Chicago professor Strauss that "the rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues." 


As October progressed into November, it appeared that the Supreme Court would not address this subject, at least not soon. And so the various Federal Circuit decisions on the state's authority to define marriage would stand, at least for now. These are summarized by the New York Times here. Then the 6th Circuit, in a more recent divided opinion, upheld bans on same-gender marriage. There is now a conflict among the Circuits, and some prognosticate that the Supreme Court will therefore take up the issue in the next year.


Marriage, and the definitions applied to it may have broader social and legal implications, but for a moment focus the impact of the definition on workers' compensation. 


The Florida death benefits provision in 440.16, F.S. provides that these benefits are provided "to the spouse," and other generally referenced beneficiaries including, in various situations, children, parents, siblings, and grandchildren of the dead employee. The use of "spouse" is not uncommon in workers' compensation statutory phraseology across the country, as it is used in Alaska and Florida.


Thus, any decision of the United States Supreme Court that provided clarity on the question of what "spouse" means in a general context, under either state law definition or in a broader sense under equal protection, could likewise provide clarity on the more specific questions which this word presents in workers' compensation. The impact on certain individuals, that is those who would then be entitled to or denied death benefits, could be significant.


Back to our Federalist constitutional government structure. According to "the Supremacy Clause," the U.S. Constitution, and the laws of the United States are the "the supreme law of the land," "anything in the Constitution or laws of any state to the contrary notwithstanding."  In this construct, a United States Supreme Court decision on what "spouse" means would likely have a great effect on states' various interpretations of their workers' compensation death benefit laws.


There will be those who argue that the developing consensus of U.S. Circuit Court decisions provides essentially the same conclusiveness, but the recent 6th Circuit departure from the logic of other Circuits could frustrate that conclusion. Certainly those appellate decisions will be cited in arguments and discussions. None have been found that address the specific question of defining "spouse" in the context of a workers' compensation death benefit dispute. 


In our Federalist system the decisions of state Supreme Courts like Alaska's or Florida's are controlling within their respective state, but do not control disputes in other states. The State of Alaska is a state, just as good as, but no better than or superior to, any other state. While a state like Florida's courts might be compelled to follow federal law, pursuant to the Supremacy Clause, it is not compelled to follow the decisions of other state's courts, even other state's supreme courts. Thus, Harris v. Millennium will control the determination of "spouse" benefits in Alaska, but may have no effect whatsoever in a similar claim in some other state. Florida's courts could follow the logic of that decision, or could choose their own course, just as the 6th Circuit did in their recent decision. 


Appellate courts should bring predictability to the jurisdiction. Predictability comes through transparency and clarity. The decision of the Supreme Court must be understandable to the populace (clarity) and its reasoning must be explained (transparent). A clear decision from the highest court might bring that clarity to the "spouse" issue in workers' compensation.

The import of national clarity might not be considered to be economically significant to the industry as a whole. The processes that will be required to define death benefit entitlement across the various state systems as regards same-sex marriage will not necessarily be any more prohibitive than proving benefit entitlement in any discrete question, state-by-state. The economics are constrained because most death benefit statutes have limited measures of benefits, which lend them to certain financial predictability. Furthermore, as discussed above, death cases are a very small portion of the workers' compensation exposure overall, and the frequency of workplace death is thankfully decreasing.


Clarity from the Court on "spouse" and the equal protection clause might be beneficial. However, the Court has not yet accepted any of the challenges that were submitted for review. According to National Public Radio (NPR) the Supreme Court has not established "a constitutional right for same-sex couples to marry," but it has as yet "declined an opportunity to rule one way or the other." NPR concludes that the Court is "less and less likely" to "rescind" the trend toward acceptance of same-gender marriages, and perhaps there is a decreasing likelihood now that the Court will "even take such a case."  


It is an intellectually interesting issue which is likely to continue challenging workers' compensation. This will continue until the U.S. Supreme Court addresses the subject or until the various state supreme courts have each considered the question and resolved it. Alaska has had that opportunity, and absent the U.S. Court reconciling the issue, the "court of last resort" for workers' compensation in each state is likely to eventually consider the issue. 




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