Wednesday, September 18, 2013

A Review of History

We all want to be different or unique. When he still did stand-up, comedian Jerry Seinfeld made many observations about the similarities he found in observing people around him. He suggested that despite our human desire to be different or unique, we all have many similarities with each other.

I was privileged last week to deliver a lecture on the history of workers' compensation in this country. Having lived workers' compensation for more years than I prepared to admit, I was astounded by what I learned researching the history of workers' compensation. With all that I thought I knew, I learned a great deal from preparing to deliver that lecture. I also learned a great deal from the questions posed by the audience after that lecture. Workers' compensation (WC) is genuinely and thoroughly intriguing. Despite common beginnings through similar state legislation, it is today full of differences and distinctions.

The whole WC concept came from a convergence of various perspectives and interests. There is a tendency sometimes to think that changes around us, particularly legislative changes, come from some person or group's unique perception. While that may be true sometimes, it is also possible or even probable that change will come not because of a singular interest, but because the change or solution answers the interests of more than one person or group. I reflected on that in studying the "great trade off."

Did you know that there were multiple efforts in the 1800s to preclude lawsuits against employers in this country? Georgia and 25 other states passed Employer Liability Acts between 1855 and 1970. These were not compromises with labor. These were statutes intended to deal with liability and what people perceived as congested court systems across the country. The advent of contingency fees had led to greater involvement of attorneys in personal injury litigation in the mid 19th Century. People perceived congested courts as a problem. It is interesting that today we hear similar complaints about the congestion of our courts. Perhaps some things do not change. Like new highways that become as congested as their predecessors, perhaps our struggle to build and staff enough courts will be a constant in our society as the population continues to grow and our relationships continue to become more complex?

Did you know that early attempts at workers' compensation in North America failed? Courts were not convinced that liability without fault was consistent with due process. Early attempts by Maryland, New York and others were struck down as unconstitutional, in large part on this argument. Later efforts were successful, constitutional, because of the "great trade off," or "great compromise," where there were benefits and burdens for both sides of the equation that defined employee and employer relationships and which is workers' compensation. 

In 1911, the first successful state acts were passed. The Federal Government had led the way with the Federal Employer's Liability Act (FELA). The first WC states were California, Illinois, Kansas, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Washington, and Wisconsin. Not exactly a geographic cluster. By 1915, 32 states had enacted workers' compensation statutes. Thirty-two states in four years? By the end of the next decade, 1929, only five of the United States did not have workers' compensation programs. Over the next decade, by 1939, only Mississippi remained without a statute. Mississippi completed the unanimity in 1948. In all an intriguing process of the "great trade off" spreading across various jurisdictions. So much in common.

I was also privileged to share the stage for a discussion of the question of compensability determinations. This discussion led to reiteration of the many varieties which now exist across this continent. Certainly, the compensability question is diverse in various jurisdictions. We have a variety of tests and definitions and presumptions. After the presentation, I had an interesting conversation about the similar diversity in benefit volumes and duration across the various systems. We have many similarities across the continent, and many distinctions both subtle and not.

I was struck with the conclusion that we do have much in common among our state statutes, and some interesting differences. The existence of workers' compensation is unanimous, with each state participating and with multiple Federal programs now in place. The commonalities are striking. There is employer immunity, there is exclusive remedy, there is administrative process. I was likewise struck by the conclusion that these various systems are so very different in terms of the benefits delivered and the processes used for determination of those entitlements.

At the end of the day, it is fascinating that the process begun about 100 years ago has spread as uniformly as it has. It is equally as fascinating that there are so many distinctions and differences among the many programs. As a student of the law, I am privileged to be able to study this thing we call workers' compensation in its similarities and differences. Later this month the International Association of Industrial Accident Boards and Commissions, the IAIABC will present its 99th annual convention in San Diego. This organization of workers' compensation leaders and regulators began shortly after workers' compensation began in North America in 1911. They are a group of those privileged to be able to study this interesting and compelling area of the law. 

I hope that this look back is as interesting to you as it is to me. It is inspiring to me that what we do is a part of something that exists in various forms across an entire continent. I hope that it is as inspiring to you, that this system exists for employers and employees. I have yet to meet anyone that feels their respective state's system is perfect. I have met so many who believe that they can make their state's system better. With so many intelligent, talented people out there focused on workers' compensation, I find it likely that they will make it better, continuously. I am privileged to have known many of them on both the employer and employee side of the argument, and I am inspired by their spirit, dedication, and focus on making it better.

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