Tuesday, May 24, 2016

Constitution Times Deuce

The Flying None...
2016 really is the year that challenges to workers' compensation's constitutionality is playing out across the nation in multiple jurisdictions under various theories.

Kentucky governor, Matt Bevin, only the third Republican governor in the history of Kentucky, drew fire for disbanding the Workers’ Compensation Nominating Commission on May 9 and then reconstituted it with new members.

Bevin dismantled the seven-member nominating commission even though all of them were serving unexpired terms. The commission exists to advise the governor on which administrative law judges should hear workers’ compensation cases.

The governor also changed the terms and membership criteria for commission members. State law requires that three of the members be from the state’s majority political party (in this case Democratic) and two from the minority party (Republican). Bevin’s executive order changes the makeup to two Democrats, two Republicans and one at-large member opponents say will mirror’s the governor’s views.

The Kentucky AFL-CIO, and Teamsters Local 89 aren't happy with Bevin and have brought suit to declare the governor's actions unconstitutional. Joining them are former nominating commission member Charles McCoy and Louisville attorney Eric Lamb, who represents three workers' compensation claimants.

They say Bevin is trying to stack the commission against workers and in favor of business.

The suit includes a petition for a temporary and, ultimately, a permanent injunction to prohibit the governor's restructuring from ever taking place. Franklin Judge Phillip Shepherd has scheduled a preliminary hearing for June 1 and the governor's office has decided to hold off on any appointments until at least then.

The challenge isn't appreciated by the governor's office. “Another day, another frivolous lawsuit,” the governor’s press secretary, Amanda Stamper, emailed WorkCompCentral.

The plaintiffs claim that not only did Bevin stack the deck with his new nominating commission, he refused to reappoint six qualified administrative law judges. 

In the meantime California lien claimants challenging SB 863 were thrown out of the Supreme Court of the United States with a no comment "writ denied," the final grasp for straw over.

On Monday, the court denied the petition for certiorari in Angelotti Chiropractic v. Baker, bringing an end to more than three years of litigation over the $100 "activation" fee imposed by SB 863.

They filed suit, with Angelotti Chiropractic serving as the lead plaintiff, asserting the doctors, chiropractors, pharmacies, interpreters, copy companies and other businesses like them have no way to get paid unless they file a lien claim. Thus, they complained that the forfeiture penalty is a governmental deprivation of their ability to be paid.

The U.S. 9th Circuit Court of Appeals wasn't persuaded, finding that a lien merely represented the claimant's expectation of payment.

Once the 9th Circuit denied the plaintiffs' request for reconsideration, the Angelotti plaintiffs turned to the U.S. Supreme Court for relief in January.

Though the California Department of Industrial Relations submitted a waiver of its right to respond to the petition, SCOTUS said it wanted to hear what the administration had to say.

The DIR submitted a response arguing that a lien claimant's "expectations" are not property subject to a governmental taking and that it just imposed a "user fee" on those who chose to use the workers' compensation adjudicatory system to pursue payment.

Apparently SCOTUS was persuaded.

And that's our constitutional lesson in work comp for the day....

1 comment:

  1. Thanks for reporting on this David. The deck is stacked and not just in this State, but many others as well.

    Waiting State by State, for "parts" of the workers compensation system to be declared "Unconstitutional" is helping to un stack the deck, but can the injured survive, the length of time, it takes for all this to churn through the courts?

    That's great to hear, and we need to see more suits like this. But how long will it take to get through the courts 1,2,3 Years or more? And in the meantime what damage to the injured workers will be done, as the profiteers go to town, while were all waiting on the slow wheels of justice to churn? The injured workers need Federal Intervention now, for this waiting on justice to be dealt out piece meal, state by state, is going to take for ever. The injured workers of today do not have for ever and day to wait. It's good news, but for those injured today and over the next 3 years, it's a day late and a dollar short. Just saying. The Injured workers need Federal Intervention NOW!

    This is a typical ALEC tactic. Intentionally making and boiler plating unconstitutional laws, they know that those victimized by them will take years or even decades to get the courts to over turn or declare these laws and orders unconstitutional. And in the meantime, ALEC and their profiteering friends, make out like bandits. Peace and thanks for reporting how the deck is being stacked against the injured. Nice to hear that side of your voice again. Peace and just saying as always.