Tuesday, March 13, 2018
I have had the great pleasure of exploring this morning Bradbury’s Workmen’s Compensation Treatise of 1917 (a rare book – the Larson’s-type treatise during the period of workers’ compensation’s revolutionary expansion). The purpose of my investigations is to get a better understanding of what the U.S. Supreme Court of 1917 might have had in mind when concluding that the negligence-for-workers’ compensation quid pro quo was acceptable, if reasonable. I intend to assess all the major statutes in existence up to that time to create a kind of historical res gestae touching on “reasonableness.”
This morning I also detoured from Bradbury a bit to read a Seldon Society compilation of English law, included in which is the English Workmen’s Compensation Act of 1897. As a former law clerk at the Massachusetts Department of Industrial Accidents, it did not take me long to note striking similarities between the original English Act and Massachusetts law. Extended discussion on that point is for another day. But I thought I would take a moment to comment on a few items that caught my eye.
First, under Section 2(1) of Chapter 37 of the English act, notice of “accident” was to be provided “as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured . . .” In the same provision, it is stated that claim was required to be filed within six months but “any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not prejudiced in his defence by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake or other reasonable cause.” This strikes me as a surprisingly forgiving notice and claim provision.
Also, under the 1897 Act, which applied solely to enumerated hazardous employments, indemnity benefits equaled 50% of weekly wage loss—this was clearly a wage-loss statute—capped at 1 pound per week (after all conversions amounting to $167.80 in 2017 dollars). First Schedule, Section 1(b). Death benefits were the greater of the preceding’ three years wages or 150 pounds ($25,000 in 2017 dollars). Under Section 2 of the same schedule, there did not appear to be any limit on the length of time a wage-loss benefit could be received, though under Sections 11 and 12 it appears that continued incapacity for work could be tested by the employer at any time (and of course, the cap was also continuous). Under Section 11, the employee had the right to get second opinions from physicians appointed by the Secretary of State and paid by Parliament. Second Schedule, Section 13. Moreover, “the certificate of that medical practitioner as to the condition of the workman at the time of the examination shall be given to the employer and workman, and shall be conclusive evidence of that condition.” First Schedule, Section 11. Employers and employees could settle cases by lump sum settlement and public officials could order employees to deposit the lump sum proceeds in a (one presumes conservative) Post Office Savings Bank. Weekly benefits were not subject to the claims of creditors. First Schedule, Sections 13 and 14. It appears that the nitty-gritty details of workers’ compensation cases were decided by court-appointed “arbitrators” under an interesting arbitration system that I intend to discuss in a later post. Second Schedule.
My preliminary impressions are that indemnity benefits have been set historically at between 50% and 60% of wage loss, and that trial-by-jury was not a feature of the English system. Importantly, however, my investigations have not yet persuaded me that any durational limit on receipt of partial benefits was a feature of early workers’ compensation systems. Finally, IME structures have been with us for a long time. More to come.
Michael C. Duff