With favorable court rulings in several states under their belts, claimants' lawyers across the country are now preparing for a coordinated attack on state laws that they say have all but destroyed the "grand bargain" for injured workers. 

Bob Burke

And their weapon of choice has been hiding in plain sight all along: It's not the federal courts or Congress or even the Bill of Rights, but the protections spelled out or implied in almost every state constitution, said leaders of a Constitutional Challenge Summit held this month in Washington, D.C. 

"Really, the only place to turn to deal with unfair provisions in workers' compensation schemes is the state constitutions," said Robert Williams, professor of law at Rutgers University who was a keynote speaker at the summit and is considered a leading expert on state constitutional law. "But that comes as news to a lot of comp lawyers because they don't think of themselves as constitutional lawyers."

The conference brought together some of the biggest names in compensation law, including Oklahoma City attorney Bob Burke, whose now-famous lawsuits resulted in court rulings that eviscerated Oklahoma's 2013 overhaul of the state's workers' compensation system.

"Oklahoma may have started a revolution toward more equitable benefits as part of the grand bargain," Burke wrote in an email after the summit, addressed to lawyers across the country.

The plan now is to go high-tech with the attack. The group plans to set up a database of every brief filed in every case that challenges recent state laws, said Amie Peters, president of the Workers' Injury Law & Advocacy Group, a nationwide coalition that helped organize the summit meeting. The group plans to assist lawyers in those state cases and file amicus briefs in most of them.

"The main point of the summit was to help attorneys look at how to approach constitutional challenge cases, and see what makes a strong case, what makes a weak case, and what kind of facts and foundational development do they need to have in the underlying case," Peters said. "We want to do this on a nationwide level. We want the entirety of the country to come together."

Legislatures in Oklahoma, Florida, Alabama and several other states in recent years have passed laws that have trimmed benefits for workers, placed time limits on disability and medical payments, restricted what medications can be prescribed and slashed attorneys' fees. But state courts in 2015, 2016 and 2017 also have struck down all or parts of those laws, as judges have questioned whether the restrictions are reasonable and fair to workers, Peters said.

"We're seeing a lot of states' supreme courts questioning whether the grand bargain is really being met for injured workers," she said.

That's largely because those successful legal challenges have relied heavily on state constitutions, said Emily Spieler, professor of law and former dean of the law school at Northeastern University, who also spoke at the conference.

"What’s new is that people in the comp world are thinking about it from this perspective — don't overlook the protections in your state's constitution," she said. 

Unbeknownst to many in the comp world, many state constitutions state clearly that the grand bargain must be fair and balanced, said Williams, who has studied state constitutional law for 40 years. In 39 states, the charter guarantees a right to remedy if a worker is injured on the job, he said.

Others are more specific and require the workers' compensation framework to remain a no-fault system: Arizona's Constitution, for example, stipulates that benefits cannot be denied because a worker failed a drug or alcohol test.

"Who knew?" Williams said. "A lot of people think, 'Well, workers' comp, it's a state law passed by the legislature, so my client is screwed.' Well, maybe not. Be creative. Take a whack at it."

Williams, who practiced law in Florida before becoming a law professor, also told the conference attorneys to emphasize what he called "majoritarian judicial review." Many judges, even those who call themselves conservatives, buy into the protections of a workers' compensation system because it inherently protects the majority of people, not some unpopular minority or fringe group.

The U.S. Constitution contains provisions that protect minorities and flag-burners, he said.

"But with state constitutions, it's the other way around." 

Business interests and insurance groups in recent years have convinced state lawmakers to make changes that can be seen as harmful to the majority of working people, Williams said.

"I think judges sense that, and they're able to see that a challenge to those laws is a righteous case," he said. "It's a case about working men and women and it doesn't look fair."

Yes, he said, there are some cases of workers abusing the system, but those are limited and often prosecuted. And that's no reason to undermine the basic protections afforded injured employees.

"Workers gave up their right to sue back at the turn of the century," Williams said. "Now there are limitations on this and limitations on that, and I think judges are starting to say, 'Wait a minute. There was a deal back then, and now employers and insurance companies are (reneging) on the deal.'"

Williams earlier this year wrote a Rutgers University Law Review article that goes into detail about the value of state constitutional protections.

The Constitutional Challenge Summit may convene again in two or three years, after more cases make their way through the courts, Peters said.