Judge David B. Torrey

Review: Don DeCarlo's book, "Workers' Compensation: The First Hundred Years" (2012)


by Donald D. DeCarlo & Roger Thompson
American Society of Workers Compensation Professionals
563 pp. (2012).

In 1989, New York attorney and insurance expert Don DeCarlo and his colleague, Martin Minkowitz, published an excellent book, Workers’ Compensation: The Next Generation. It was published by LRP, which also publishes the Pennsylvania Workers’ Compensation Law Reporter, the bi-weekly Workers’ Compensation Report, and which sponsors a well-attended national conference in Las Vegas. Like many lawyers, I bought the book immediately and it’s still on my shelf. Among many other virtues, the book features a chapter on the Workers Compensation and Employers Liability policy. Indeed, it reproduces the policy in its entirety and provides commentary on the same. I tried to master this material, and all of the book’s content, before I began teaching at Pitt Law School in 1996, and it was so good I used it as the textbook that first year.

Now Mr. DeCarlo is back, this time teaming with former insurance executive Roger Thompson, with another “A to Z” treatment of the field. The book is appropriate for any audience of the community, but it’s notable that Workers Compensation: The First One Hundred Years, is actually intended as a text for the training course that Mr. DeCarlo and his enterprise, The American Society of Workers Comp Professionals, provides to potential members. (Those who qualify and pass the course supported by this book receive the designation, “WCP.”)

Like the DeCarlo & Minkowitz text, The First One Hundred Years is a comprehensive treatment of the field, though many sections are “beefed up” from its predecessor, and much wholly new material appears. Besides the material familiar to lawyers – course of employment and the like – the authors treat, as did the original book, the policy of insurance. The treatment on this occasion is exhaustive, addressing not only the standard policy but its several endorsements, the processes of risk financing, rate making, unit audit, classification, and experience rating.

One kindred subject treated very practically here is the process of the insurance underwriter evaluating potential insureds and developing proposed premiums. This subject I had not encountered previously in a worker’s compensation text. To the contrary, I had acquired what knowledge I have of the process informally through button-holing unlucky underwriters at cocktail parties and lunches.

The book’s treatment of these insurance issues is certainly welcome. The authors correctly point out, as to the policy itself, that the scholarship on the same is thin indeed. “Little effort,” they posit, “has been expended to examine the case law that has arisen concerning policy issues and interpretations of the coverage and duties under the contract.” Perhaps one reason for this paucity of analysis is that the policy states that the carrier will pay whatever the law says the insured employer must pay. Could it be that, with this breadth of coverage, the many disputed points that daily arise under policies like the CGL simply don’t arise with the comp policy?

Of special interest to workers’ compensation lawyers (who operate on the margins of safety issues), is the chapter on the history, framework, and procedures of OSHA. The authors also treat the thorny issues of the SSD/​workers’ compensation and Medicare/​workers’ compensation interfaces. Other contemporary issues treated by the authors are medical treatment guidelines (said to be on the horizon in Pennsylvania), efforts by some states to retract coverage by limiting the definition of “injury,” and the increased popularity of compromise settlements. Here the authors reveal themselves as purists; if the claimant is not going to appropriately use the lump sum, they assert, the settlement will not be in his best interests and it probably shouldn’t be approved. DiCarlo and Thompson thus show fidelity to the Larson view that compensation claims should not be reduced to commodities.

Perhaps the most interesting chapter to this writer was the treatment of extraterritoriality. Here the authors identify the miscellaneous collection of approaches states take as they address the ability of the state’s coverage to extend to injuries sustained beyond their borders. Some states, the authors point out, allow (strangely) the common law to handle this issue, while others address the issue with a variety of statutes. (In Pennsylvania, of course, we adopted the Council of State Governments’ Model Act proviso back in 1974, as did a number of other states. In this issue of the newsletter, I have attempted to compare the Model Act experience of Delaware with that of Pennsylvania.) Of particular value is the authors’ explanation of reciprocity agreements, whereby state agencies agree in writing to coordinate coverages so that employers only temporarily operating in a state need not necessarily carry such state’s insurance, as long as coverage is provided in the home state. This seems to be a phenomenon chiefly of northwestern states.

The authors tip their hats to the social insurance approaches of other countries, including Germany and Australia. With regard to the latter – where the common slang for the field is not comp but “compo” – we learn that each of the various Australian states have considerably different insuring arrangements. Some states are similar to U.S. fund states (like Ohio and Washington), whereas others allow private insurance, as in Pennsylvania. Yet a third category may be called the “hybrids”; there, “public central insurers are responsible for underwriting and funds management while claims management and rehabilitation are contracted out to private sector bodies – usually insurance companies ….”

So why buy this book and learn its contents? True, it won’t explain the mysterious working of the reinstatement statute of limitations under the Pennsylvania practice, or give tips on cross-examining a crafty surgeon. Still, the well-rounded workers’ compensation lawyer is aware of the insurance policy, laws collateral to workers’ compensation, and the approaches of other states. In the present day, serious employer clients in particular will have little patience for a lawyer who can’t think outside the Title 77 box. Then there’s that old idea of a legal professional being well educated and thoughtful. The engineer, it’s said, is an applied scientist, but the lawyer is – or should be – an applied intellectual.

To order, and for more information on the American Society of Workers’ Compensation Professionals (AMCOMP), visit the group’s website at www.amcomppro.com and download a copy of the order form found at the site. You can also contact the group directly. Phone: 718-892-0228; Fax: 718-892-2544.

Pennsylvania Bar Association Workers’ Compensation Law Section Newsletter
Newsletters back to July 2003 are available at “Members Only” link.

Selected Works

Legal Treatise
The definitive treatise on the law and practice of workers’ compensation under the Pennsylvania Act.
A review of an important book for the workers' compensation practitioner.
Marathon training in an old West Virginia river town.

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