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The 2021 Term of the United States Supreme Court concluded with high publicity and fanfare. The Court concluded that a long-held right was not in fact protected by the United States Constitution, and there was angst, anger, excitement, celebration, and a raft of reactions, emotions, and commentary throughout various communities. This was not the first time the Court has changed precedence. See Child Factory Labor? (July 2022). It is unlikely to be the last.
In the hubbub last spring of the initial leaking of the opinion and its ultimate publication, there was little oxygen left in the room for other decisions of the Court. And that is of interest because the Court issued a workers' compensation decision in the 2021 term that is worthy of consideration and study. There are relatively few U.S. Supreme Court decisions each term, and workers' compensation taking the fore is even more uncommon.
In United States v. Washington, No. 21-404 (June 21, 2022) questions regarding the scope and intent of state workers' compensation laws came to the fore. Washington State had adopted a workers' compensation provision focused upon those who work at a "a decommissioned federal nuclear production site," called Hanford. The law was a presumption, that "makes it easier for federal contract workers" to prove "entitlement to workers’ compensation" benefits under state law. This is a disparate treatment of workers, and the result was alleged to be "increasing workers’ compensation costs for the Federal Government."
The Court noted that the current Hanford efforts are directed at a "cleanup process" on the site. The workers there "are federal contract workers—people employed by private companies under contract with the Federal Government." Interestingly, after the United States filed suit against Washington, the Legislature there again amended the workers' compensation law. It did so specifically stating that its most recently enacted law would apply retroactively and thus would essentially supersede the previously enacted presumption that was being challenged. The state thereby essentially argued that the federal government's lawsuit was moot. However, it was unsuccessful in urging the Supreme Court to dismiss the challenge.
The Supreme Court instead concluded that despite Washington's protestations of mootness, the Court could not "know how Washington’s state courts will interpret the new law" (the revisions, and therefore whether there is or is not import to the presumption law that started the controversy and led to the appeal). Therefore, that new law did not invariably alleviate the impact of the presumption law. The Court noted that "It is thus not impossible for the United States to recover money if the Court rules in its favor, and the case is not moot."
The Court cited a very old precedent, McCulloch v. Maryland, 4 Wheat. 316 (1819), for the proposition that "the Supremacy Clause (prohibits) States from interfering with or controlling the operations of the Federal Government." This is an "intergovernmental immunity doctrine," and does not allow the states to "discriminate against the Federal Government or its contractors." Therefore, any "state law discriminates against the Federal Government or its contractors if it 'single[s them] out' for less favorable 'treatment.'” By creating a law that provided presumptive or deferential treatment to those working on the Hanford site, Washington discriminated against the federal government.
The Court concluded that "Washington’s law violates these principles by singling out the Federal Government for unfavorable treatment." The impact was not inferential or incidental. The law "explicitly treated federal workers differently than state or private workers, and imposed costs upon the Federal Government that state and private entities do not bear." Though Washington argued that Congress had waived "the Federal Government’s immunity," the Court concluded that Congress would only be viewed as doing so “when and to the extent there is a clear congressional mandate.”
There is thus a difficulty with this type of presumption law as a direct corollary to the Supremacy Clause and exercise of federal authority. While that authority is exercised somewhat through discretionary means, through the "necessary and proper clause," it is nonetheless federal exertion of authority. As such, it is subject to the Supremacy Clause.
A great many people, in the discussion of this case prior to the Court's decision, saw equal protection as the issue. And, perhaps such an argument might be made about presumptions. However, as yet, the various other presumptions set forth in workers' compensation statutes have withstood the perceptions of equal protection. Essentially, there is precedent concluding they are constitutional. One may ask whether there is righteousness or fairness in the singling out of a profession(s) for special care or treatment. However, those broad questions have not equated to the analysis of whether such is legal. At least as of yet, the legality of presumptions generally appears clear despite this intriguing case.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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