NWCR 2026!
The afternoon of day two of the 2026 National Workers' Compensation Review (NWCR) at WCI 2026 continues with an in-depth review of how workers' compensation fits within the broader employer/employee relationship. This will be:
Tuesday, August 26, 2025; 2:10-3:10 p.m.
Grand Ballroom 8B (Entrance through corridor Grand Ballrooms 7 & 8)
A series of posts is listed at the conclusion of this one, providing a roadmap to the entire NWCR 2026 agenda.
Moderator: Steve Tipton
The workers' compensation community has been focused on the (nick-named) "Grand Bargain" in recent years. A great many in the community are unfamiliar with the label, but it is a general reference to the fact that the constitutionality of workers' compensation was determined by the U.S. Supreme Court, concluding that the employee and employer each enjoyed benefits and burdens in the exchange that substituted workers' compensation for tort recovery and defenses.
In that bargain, the predominant benefits for employees are no-fault entitlement and more rapid recovery; the most critical for employers are defined benefit liability and immunity from tort liability. This panel will delve deeply into the tort liability immunity, (nick-named) "exclusive remedy."
Despite the word "exclusive," there remains a variety of potential civil liabilities for employers. These include common-law tort liability for intentional actions or "gross negligence" in some states. Also worthy of discussion are statutory liabilities created by various state and federal statutes that augment or supplement the workers' compensation system recoveries.
Layered on this backdrop, there are issues intertwined with injury or insult that are not compensable in workers' compensation. When such results occur, the question is whether and how recovery may remain barred or available in the tort setting. This has been discussed significantly in regard to changes in compensability standards and burdens of proof in workers' compensation systems.
The employee and employer of the 21st century must be ready to learn about federal programs like the Occupational Safety and Health Act (OSHA), the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and various state laws that similarly preserve or impose potential liability.
There are challenges with causation, co-worker liability, premises liability, automobile insurance, and more. Both employees and employers will have challenges with issues like notice, statutes of limitations, election of remedies, and preservation of evidence. With the potential of parallel litigation or claims in multiple forums, there may be issues with selecting and presenting evidence, inconsistencies in legal standards, and effective communication.
In short, there are a multitude of complications that are potentially involved in the employee/employer relationship. The interactions and conflicts among the various laws in purpose, procedure, and outcome may present challenges of education, interpretation, and conflict. The panel here will discuss a myriad of these points and strive to build a better appreciation for the complications and challenges of the work relationship in 21st-century America.
Beyond Exclusive Remedy: Employer Liability Exposures Outside the Workers’ Compensation System
Tuesday, August 26, 2025; 2:10-3:10 p.m.
Grand Ballroom 8B (Entrance through corridor Grand Ballrooms 7 & 8)
David Sidney Harvey, Jr., Esq., Partner, Kelley Kronenberg
Hon. Pamela Johnson, TN Deputy Chief Judge of Compensation Claims
NWCR 2026 program overview:
Monday, August 24, 2026
1:00-2:00 NWCR 2026 and Litigation Management
2:10-3:10 Causation Analysis
3:15-4:15 Stewardship of Truth
Tuesday, August 25, 2026
8:45-9:45 State of the States
9:55-10:55 Actuarial Insight and Mysterious Underwriting
11:00-12:00 Empathy
1:00-2:00 Rapid Fire Hot Topics
2:10-3:10 Beyond Exclusive Remedy
3:15-4:15 Strategies to Thrive in Times of Change
